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Most of the claims that use “securitization” as a foundation are FALSE!!

That means they have no right to administer, collect or enforce any debt, note, mortgage or deed of trust.

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AND pursue damages against those who make false claims.

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MISSION STATEMENT: We want to convince homeowners to fight illegal foreclosures and win — not merely delay a negative outcome. And we want them to go further — to pursue those who make false claims for monetary damages. In fact, I want homeowners to clear their title — expunging or removing or canceling the mortgage lien. 

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Investigation of Credit Reporting and Verification of Credit Reports Shows Fabrications At Every Level

It is no surprise that Black Knight, previously known by other names including but far from limited to DOCX and Lender Processing Systems, is one fo the central control entities for the Wall Street investment banks in what is generally referred to as “securitization” schemes in which false claims are made regarding the securitization (sale) of unpaid loan accounts.

Summer chic has done an incredible amount of in-depth research that adds meat to the bones of homeowners defenses and claims.

In this case she provides a step by step guide to understanding the whole process of how negative credit reports containing false information are sent to what appears to be third-party companies posing as credit reporting agencies.

Both the reports and the verifications (required by law upon request of the party claimed to be a debtor) are false because there is no unpaid loan account receivable owned by the company on whose behalf the report is made. Frequently there are other false statements such as criminal records that are nonexistent ($3 million verdict for homeowner).

Hence the credit report is the utterance of a false instrument, based upon information the CRA knows to be false, the use of it by any creditor or prospective creditor is unlawful because most users know the information is false, and all of that is happening “in-house.”

Namely Black Knight performs or manages each and every function of receiving, collecting, processing, reporting, payment histories, reporting negative credit events essentially to itself.

The net effect of this is that it raises interest rates for the so-called “debtor” and even eliminates the homeowner’s prospect of getting alternative financing — something that Wall Street is dead set on blocking.

Imagine what would happen if homeowners were able to obtain alternative financing to submit an offer to pay off the entire balance as demanded or a fair settlement amount.

Every such closing is subject to due diligence on the title chain and the credentials of the designated creditor. Nobody wants a satisfaction of mortgage from a party who does not own the underlying obligation that is alleged to exist. Such an instrument would be void.

Such investigations would result in the revelation that the party demanding payment was not entitled to receive it. And the securitization infrastructures that support infinite revenue and profits would collapse.

The further implication is that virtually all hoemowners whoa re making or who have made payments according to a schedule presenting to them at closing, would have a valid claim to recover the payments made on the same principle.

Neither the “servicer” nor the designated “creditor” had any right to receive such payments nor any authority to execute any proceedings or documents concerning the payments received from homeowners (or the sale of their property) or any right, title or interest to any debt, note or mortgage.

And if further investigation were permitted by the court, it would be discovered that there is no lending party anywhere in the securitization infrastructure or in what is presented as the lending infrastructure.

There is no party that is owed any money at the  close of the transaction cycle with the homeowner. They have all been paid from the sale of securities — payments that were not credited to the nonexistent loan accounts mostly because Wall Street was allowed to do that under current accounting rules. So they received the payment but did not credit or even notify the homeowner.

Hence we are left with a transction in which the illusion of a debt is created, administered and enforced by central control entities like Black Knight, who performs most of these tasks for most of the securitization schemes.

The  fabrication of documents, fake “Business records”, and false implied claims of economic loss serve as one of the sources of titanic bonuses distributed on Wall Street because collections from homeowners have no place to go.

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From Summer chic: We all owe her a deep debt of gratitude because she is relentless and accurate.

I continue my research on “credit reporting agencies” which are nothing but a scam to cover up the involvement of our old friends – Wall Street Banshists, Foley, Gravelle, Cogburn, etc

 “Transunion”‘s letter  was sent to me by Exela TEchnologies who used one of its FINTECH companies HOVServices

“Equifax” letter was sent to me by FIS Output Solutions, which is a branch of Fidelity National Information Services – which is located of course at 601 Riverside Dr. Jacksonville FL and more known as Fidelity National Financial /Black Knight.

The individual who registered FIS Output Solutions is hard-working lawyer Michael L. Gravelle (who has 2500+ jobs) who also registered nearly all 850+ ServiceLinks nest doll corporations across America.

The method how your information is “verified” is as following”

All “agencies” use so-called E-Oscar system which is a Trade Mark for Online Data Exchange LLC, which is located in Jacksonville Florida and its “parent” is listed TransUnion – while I think its Black Knight

Inline image

The system primarily supports Automated Credit Dispute Verification (ACDV) and Automated Universal Dataform (AUD) processing as well as a number of related processes that handle registration, subscriber code management and reporting.

While the system called “E-Oscar”, the email extensions for its employees are “newmtgservices”

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In other words, all “furnishing” is coming from Balck Knight and all verifications are conducted by Black Knight and its numerous FINTECH companies. ”

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“Agencies” names are used as a cover up.

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PRACTICE NOTE ON THE USE OF FABRICATED INSTRUMENTS:
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Every claim must start somewhere. So if the proposed claim is based upon written instruments, it begins with attaching those instruments to the complaint or producing those on request. If the written instruments are prepared in the manner set forth by an applicable statute or if the instrument was prepared in accordance with custom and practice it is (and must be) taken as presumptively true.
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This is why I have developed an extremely focused defense narrative and strategy. The information needed to rebut the presumptions raised by fabricated documents in foreclosures during the 1999-present era is not available to the homeowner or defense counsel — even when court orders are issued requiring that such information be produced for inspection and that questions (interrogatories) be answered.
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Of the hundreds of strategies that I have reviewed and analyzed, the only one that works most of the time is steadfast, aggressive, persistent, and even “litigious” efforts to enforce compliance with the statutes and court orders.
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Of all the cases I have won, and of all the cases that other lawyers have won, it seems that the main factor was and remains the reluctant willingness of the trial judge to sustain objections from the homeowners and overrule objections from the lawyer representing the foreclosure mill.
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This is a prolonged effort. It is a ground war. While it is possible to achieve this goal only at trial, the judge is far more likely to consider the objections raised (foundation, hearsay, relevance etc.) if the homeowner has properly litigated discovery questions in the foreclosure action or in the lawsuit to enforce rights under the FDCPA, RESPA, and FCRA.
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Such litigation shifts the focus away from the homeowner getting a “free house” and toward the enforcement and respect of the powers of the court. In contests between lawyers and judges, the judge almost always wins.
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The question of whether the homeowner should be able to plead affirmative defenses or counterclaims for compensatory and punitive damages is not addressed her. Remember that affirmative defenses are generally not subject to being barred by the statute of limitations.
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But I reiterate that I am absolutely certain that under existing law and precedent going back hundreds of years, the homeowner is entitled to be paid compensatory damages for being involuntarily drafted in the position of an issuer, without which the extremely profitable securitization practices could not have occurred.
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The world is waiting for an enterprising large law firm to take on this herculean task that so far, every one of them has been too intimidated to undertake.

Don’t Sue the Clerk of the reording Office Just Yet: Start with Organized Petitions and Phone Calls.

Multiple reports around the country have demonstrated that there is overwhelming evidence of corruption in the office that records instruments in the title chain of real property.
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In a few rare interviews, the people who run such offices have complained that they are being forced to record documents that are actually outside of the chain of title. This is all caused by fabricated documents used to weaponize the procedures allowed for the pursuit of foreclosure remedies.
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20 years after it all began, it is apparent that the only real correction is going to come from political action rather than legal action. You must make noise to get people to listein. As Victor Frankel said decades agao, evil only flourishes when good people do nothing.
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People are always venting about their frustration, which is well-founded, with the recording offices that allow facially invalid documents to be recorded in the chain of title.
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Once that is recorded, getting the document out of the chain of title is expensive and time-consuming, and even futile in the new era of false claims of securitization.
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The new era is marked by false claims that loans were created and “securitized,” meaning that the claimed underlying obligation was purchased and sold. No such transactions ever take place in current securitization infrastructures and therefore all documents relying upon that premise are false and misleading.
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Perhaps more importantly, the meaning of this false claim clearly manifests the truth that the transaction with homeowners did not create an unpaid loan account receivable nor anyone to own it.
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Anyone who has a passing interest and understanding in securities analysis knows that the transaction was mostly for the revenue derived from the sale of unregistered, unregulated securities. Payments coerced from homeowners were and remain an unnecessary bonus.
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So people are asking how they sue the Clerk of the county Recording Office to stop the recording of false documents.
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You start off with the presumption that any agency of the federal, state or local government is cloaked with the presumption of immunity.
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This does not cover individual acts of malfeasance, and which the individuals who are guilty of committing a crime can be punished for doing so. Such individuals are known to exist. They literally get paid through intermediaries for the securitization schemes. I personally know of multiple instances where that has occurred. But these individuals cannot respond to a civil judgment because they generally have no money. And they are not prosecuted criminally unless you can serve up, on a silver platter, the complete case against them and present it to the local prosecutor.
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The next issue is whether the agency actually knew about the malfeasance and condoned it. We all know this is probably true. But in order to allege the proper elements of a lawsuit against the agency, you would need to state the ultimate facts upon which relief could be granted. The mistake frequently made by homeowners is alleging opinions that they are confident must be true. Such allegations are dismissed under our system. Secondly, even if you were able to make the proper allegations, you would then have to prove them. This would require a ground battle in disclosure.
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 So the bottom line is that unless you have a lot of money and a lot of time on your hands is pointless to pursue this avenue of relief in the current context and in the current judicial climate. As far as I know, the probability of finding a lawyer who would be willing to take such a case based on contingency fees is zero. And even if you found such a lawyer, the costs and expenses of the lawsuit and preparation for the lawsuit would exceed the probable resources of anyone trying to pursue the case.
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The better route, at this point, in my opinion, is to use petitions, telephone calls, and a lot of noise directed at the recording office and the press.

Look Who Owns Equifax credit reporting

Hat tip to summer chic

Echoing the questions issued by multiple judges when the mortgage meltdown became clear, the question I pose is the same as those posed by J udge Shack, Boyco and others back in 2007-2009:

Why is it that the largest  financial conglmerates in existence continually invesst together in companies that aid theirrespective enterprises. They suppsoedly compete with each other. WHy are they aiding their competitiors?

We see here the common investments by America’s largest “banks” in Equifax. But the exact same thing is true with Mortgage Electronic Registration Systems (MERS), and the all encompassing ICE (Intercontinental Exchange Inc).  and we see it  and companies that provide services that are designed to reinforce the illusion that the homeowner is involved in a loan transaction including but not limited to dozens of appraisal companies.

For those of us whose birthday is before 1990, we remember that antitrust laws were first created more than a century ago to prevent exactly this type of behavior. Those laws still exist.

The pervasive influence of corrupt “donations” from sources has tilted the economy away from the average citizen such that the Perpetrators accumulate power and money on a level that has never been experienced in human history. such behavior will not stop until antitrust laws are once again enforced with vigor.

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Underwriting Agreement

August 11, 2021

J.P. Morgan Securities LLC

383 Madison Avenue

New York, New York 10179

BofA Securities, Inc.

One Bryant Park

New York, New York 10036

Mizuho Securities USA LLC

1271 Avenue of the Americas, 3rd Floor

New York, New York 10020

Truist Securities, Inc.

3333 Peachtree Road NE, 11th Floor

Atlanta, Georgia 30326

Wells Fargo Securities, LLC

550 South Tryon Street

Charlotte, North Carolina 28202

As Representatives of the several Underwriters

Ladies and Gentlemen:

Introductory. Equifax Inc., a Georgia corporation (the “Company”), proposes, subject to the terms and conditions stated herein, to issue and sell to the several underwriters named in Schedule A (the “Underwriters”), acting severally and not jointly, the respective amounts set forth in such Schedule A of $1,000,000,000 aggregate principal amount of the Company’s 2.350% Senior Notes due 2031 (the “Securities”). J.P. Morgan Securities LLC, BofA Securities, Inc., Mizuho Securities USA LLC, Truist Securities, Inc. and Wells Fargo Securities, LLC have agreed to act as representatives of the several Underwriters (in such capacity, the “Representatives”) in connection with the offering and sale of the Securities.

The Securities will be issued pursuant to, and will form a separate series of senior debt securities under, the indenture, dated as of May 12, 2016 (the “Base Indenture”), between the Company and U.S. Bank National Association, as indenture trustee (the “Trustee”). Certain terms of the Securities will be established pursuant to a supplemental indenture (the “Supplemental Indenture”) to the Base Indenture (together with the Base Indenture, the “Indenture”). The Securities will be issued in book-entry form in the name of Cede & Co., as nominee of The Depository Trust Company (the “Depositary”).

Tips on the enforcement structure of nonexistent loan accounts

Most lawyers and even homeowners have heard that for a settlement or modification to be approved, it needs to go up through several layers. After comparing notes with Bill Paatalo, I believe the following is a true description of the enforcement infrastructure for virtually all transactions with homeowners arising from business schemes that serve to sell securities.

  1. The top rung in the hierarchy is a law firm that works for an investment bank.

  2. The next rung down is a law firm with almost as much authority to act for the investment banks. Generally located in Chicago or New York.

  3. The third rung down is a regional law firm that serves as the intermediary through which instructions are sent to foreclosure mills.

  4. Fourth is the foreclosure mill which receives instructions, forms, and exhibits via electronic media from unknown sources.

  5. 5th is the lawyer, who is the only person who has any contact with an intermediary that tells him or her about the witness that will testify at the final hearing and who will be claimed as an employee with familiarity” with the books and records of Ocwen (or whoever is designated as servicer).

  6. Ocwen (or whoever is designated as servicer) is a sham conduit licensing its name for use by third parties to receive, collect, digitally process and manually process payments from homeowners.

  7. The records of Ocwen in this example are not admissible as evidence of the payment history because they are barred by the hearsay rule because they were created through the functions and work of third parties who created and maintained such records.

  8. The third parties are FINTECH companies who operate under contract with intermediaries for securities brokerage firms doing business as “investment banks.”

  9. The records of FINTECH in this example are admissible as evidence of the payment history because they qualify as “business records” as an exception to the hearsay rule of evidence (i. e., law of evidence) because the records were created through the functions and work of the FINTECH parties who created and maintained such records.

I again caution both homeowners and lawyers to avoid any allegation that would require them to prove the above hierarchy. The only thing that matters is whether the currently designated claimant possesses a legally recognizable claim. And that depends upon whether the lawyer representing the foreclosure mill can prove that the “creditor” he or she designated in the notice or pleading that was filed is the owner of the underlying implied or claimed obligation (loan receivable account).
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I am 100% positive, and my opinion has been corroborated by interviews that no such creditors, accounts, or claims exist.
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The majority of support for believing otherwise comes from the homeowners themselves, who mostly insist that their transaction is a loan even though many of them know that they have no creditor and that the authority of the designated servicer is at best problematic. Ignorance of the legal requirements for a claimed “loan” to be legally recognized as such is what is driving millions of foreclosures.
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“The currently designated claimant” can ONLY be the Plaintiff in a judicial state or the beneficiary in a nonjudicial state. It is not the designated servicer nor a trust or holders of certificates.
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If a REMIC trust is referenced, that reference is included to mislead you and the court. The designated claimant in such instances is the designated trustee of a nonexistent or irrelevant trust.
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It is the “bank” that does not appear as a bank. It appears solely as a trustee and not on its own behalf; therefore, the claim, despite what you might think, is not the claim of a financial institution.

Why Buying Stock in Ocwen is a Dangerous Gamble

For 25 years, Ocwen and the companies it has “acquired” through mergers or acquisitions have been falsely allowing third parties to use its name to pose as lenders and servicers.

They have always been parties to Purchase and Assumption Agreements (both titled as such and using other titles) in which the complete ownership and control of any closing and servicing of any transaction with homeowners is vested in those third parties.

In short, the business of Ocwen has limited to collecting royalties for use of its name — the same MO as national banks who pose as trustees of nonexistent trusts implying nonexistent trust accounts with nonexisting unpaid loan accounts.

Ocwen has also allowed the hiring of robowitnesses to testify in court in sworn testimony — asserting that Ocwen (now PHH) is a servicer who receives, deposits, and distributes payments from homeowners to creditors. This has always been false.

Such witnesses, with full knowledge of Ocwen management, testify that reports offered in court are a compilation of data produced from Ocwen’s business of collecting and distributing money. This is also false. The financial technology (FINTECH) companies that perform all such work are not subject to any control or direction from Ocwen, nor are they working indirectly on Ocwen’s behalf.

In short, virtually all activities attributed to Ocwen are false. Legally they could not be the foundation for any admissible evidence in a court of law nor the foundation for any statement or notice (e.g., a notice of default) that FINTECH companies mail under the letterhead of Ocwen.

Ocwen and related companies appear in the chain of paper in hundreds of thousands of transactions that are falsely labeled as “mortgage loans.”

In my opinion, the facts recited above are all true and have never been contested by anyone. They have also served as the foundation for thousands of successful homeowners who won cases against the actors seeking foreclosure. In short, they are indisputably true.

Without Ocwen’s role in foreclosures claiming trillions of dollars due, there would have been no such foreclosures. While counterintuitive, the reason is simple. If the foreclosure actors used the name of any other party, who was actually involved in the money trail, they would have lost each foreclosure attempt, because there is no unpaid loan account on the books and records of any FINTECH company or any creditor named in the false statements, notes and claims filed by lawyers representing foreclosure mills.

Thus,  the potential liability for Ocwen, related companies, and even management is in the trillions. I posed this question to several well-placed people, who confirmed what I was saying was true. But they also said that Ocwen could employ the same strategies that saved these fake foreclosures in the 50-state settlement and other settlements and receive only minor fines.

However, if homeowners start contesting foreclosures regularly and they send the time, money, and energy to win them, this calculation could change. It would be out in the open that there is no “there” there.

Foreclosures cannot be successfully prosecuted without the existence of an unpaid loan account — which is the sole source of claiming injury. Financial injury is a condition precedent to filing any lawsuit or other action seeking foreclosure.

The potential liability for Ocwen is enormous. And while it is true that Ocwen is protected by indemnification agreements with the largest financial institutions in the world, it is equally likely that said institutions will throw Ocwen under the bus claiming that Ocwen was the source of the fraud and that, therefore, the indemnification can not be enforced.

This would leave Ocwen, a thinly capitalized company floating on assistance and “fees” from the thousands of securitization schemes supported by the use of Ocwen as a front for those schemes, in an untenable position. It would be bankrupt without a sufficient asset base and no further income from the role-playing.

Of course, that is my opinion and not direction on how to invest.

 

Why do mortgage modifications seem so random? Because they are random.

 In 2013, while I was litigating these cases in Tallahassee Florida, there were several circuit judges on the bench who were both thoughtful and analytical. They were the first ones (out of many judges) who questioned two specific aspects of the foreclosure crisis: (1) why were servicers changed so often? and (2) why were modifications seemingly random rather than following some logical basis?

Many other judges like Judge Shack in New York were liberal in their criticism of claims brought by competing entities consisting of the largest financial institutions in the world, operating out of the same Suite at the same address in West Palm Beach, Florida (an Ocwen address). And Judge Boyco in Ohio started ruling against the foreclosure claims before he was silenced. Several bankruptcy judges in California and other states were ruling against the foreclosrue mills as well until they too went dark.

And other Judges privately voiced their wondering about why any “lender” would offer the NINJA and other supposed “loans” offered in the lending marketplace. The alternate or option contracts were the most troublesome since they virtually guaranteed that the payments would not and could not be made after short periods of time — a clear TILA violation in which the “lender” is responsible for assessing viability of the deal. .

But in the absence of such issues being brought before the court in a coherent manner they felt constrained to rule for the lawyer representing the foreclosure mill.

Adam Levitin, who first coined the phrase “Securitization fail,” pointed out that modifications were not in the interest of servicers. He was right, but that was only part of the story. There was no securitization of debt. There was only securitization of data. And neither the debt nor the data was owned by anyone. In plain language, securitization eliminated the role of a creditor.

Adam was only partially right. It’s not really the fees that block servicers from modifying instead of foreclosing. They really don’t have a choice. Their entire purpose is to serve as the sham conduit for financial technology companies working for Wall Street securities brokerage firms. They have no power and do not handle, receive, process or distribute any money from homeowners.

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 A servicer does not decide to initiate foreclosure procedures or initiate modification. The financial technology companies might send application forms designed to elicit admissions that the alleged or implied unpaid loan account exists on the books of some creditor and that records from the named servicer are both authorized and valid representations of the unpaid loan account on the books of the creditor.
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The decision to offer a modification, and the decisions on the terms of the offer, are made strictly in compliance with the explicit restrictions and instructions issued by securities brokerage firms that initiated the sale of securities, the proceeds of which eliminated any risk of loss by anyone.  Those Wall Street firms are committed only to preserving securitization infrastructure. The decision to modify is never based on the quality of a virtual loan with the homeowner nor any risk of loss on the specific transaction with the homeowner.
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 All representations made by companies named as servicers that they have communicated with a controlling “investor” are false. Those representations do not come from the companies named as servicers. There is no such communication, primarily because the company named as the servicer is not performing any servicing functions.  They serve only as corporate veils through which the homeowner or the lawyer for the homeowner must pierce to obtain any affirmative relief.
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Taking the existence and authority of companies named as servicers as though any of those representations were true leads to the self-defeating dissemination of false information.
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 In 2013, while I was litigating these cases in Tallahassee Florida, there were several circuit judges on the bench who were both thoughtful and analytical. They were the first ones (out of many judges) who questioned two aspects of the foreclosure crisis: (1) why were servicers changed so often? and (2) why were modifications seemingly random rather than following some logical basis?
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Servicers are changed for one simple reason: it produces a confusing and chaotic series of veils that make it more difficult for homeowners to defend foreclosures and obtain affirmative relief in the form of damages for wrongful foreclosure.
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 Modifications are in fact random if you are looking at the economic realities attached to a transaction: one that results in a virtual account instead of an actual unpaid loan account that appears or could be claimed by a creditor who paid value for the underlying obligation and who therefore paid value for lien which is the subject of the foreclosure.
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Many judges have asked similar questions and even occasionally made rulings based on the absence of any evidence or support for the claims of lawyers whose client, they say, is the creditor and not the named servicer.
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Neither the company named as creditor nor the company named as servicer is the lawyer’s client. This has been the subject of other articles dealing with litigation immunity and bar ethics. At the moment, those lawyers are NOT held to any standard for demonstrably untrue representations.
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These lawyers have no contact whatsoever with the named creditor and very little direct contact with the company named as the servicer. They receive all of their instructions and all of the documents to be used as exhibits in litigation through electronic transmission from unknown sources.
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 Like all other schemes that are often described as organized crime, the general method of operations is to prevent any individual player from knowing or understanding the full scope of the scheme.
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It is hard to believe that any lawyer who has been representing a foreclosure mill for any length of time would not be in a position where they must have known about the insufficiencies of any claim against any homeowner.
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But that does not appear to be enough for bar associations to bring grievances and discipline. Yet those same bar associations have brought actions for disbarment against virtually all of the country’s major successful foreclosure defense lawyers.
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The fundamental premise behind those disbarment actions is that the offer of a defense to foreclosures was something close to misrepresentation. But if the Bar Association did their work, they would find that their fundamental premise was incorrect and that the foreclosure action’s premise was false.
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Consumers were left behind by the digital revolution and by virtual transactions

Business has been transformed from the sale of goods and services to procuring the private information and signatures of consumers to generate revenue far above “price” of the target product or service that the consumer believed they were purchasing.

In the case of foreclosures or mortgage transactions, there is a complete absence of disclosure. In most other transactions, especially those online, the disclosure is hidden within the box labeled “I agree.”

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 Consumers cannot invest time, money, and expense in reading and analyzing the transaction documents presented to them. This was recognized as early as the 1960s when the Federal Truth in Lending Act (TILA) was passed, and various state laws mandated compliance with disclosure and fair dealing with consumers. TILA and its progeny established the good faith estimate, and disclosure requirements were established (although they have been ignored more and more over the years).
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Accordingly, these commercial actors’ procurement of consumer “consent” is neither informed nor real. If consumers were directly informed of a good faith estimate in the amount of revenue to be generated by their transaction in the form of sales of data, information, and documents, they would then have the ability to bargain for a better deal, insisting on higher incentive payments or discounts.
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Such disclosures are precisely what is legally required under TILA. But they are never given to the consumer. And the enforcement mechanism of TILA Rescission has been effectively rescinded. Despite hundreds of thousands of rescission notices properly sent and received within the three-year period required, all of those cases proceeded to foreclose on a canceled note and mortgage.
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Even the unanimous 2015 Supreme Court decision in Jesinoski was insufficient. TILA is simply not enforced properly by any agency or any allowed legal process despite adequate express requirements that the courts follow it.
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In the case of installment contracts, consumers should be entitled to much higher incentive payments — i.e., by agreeing that this is not a loan transaction but can be treated as such. In such cases, consumers agree that any person appointed by an identified central controller (investment bank) could make claims and present evidence of default without any registered loss or financial injury.
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More specifically and directly addressing the main goal of TILA, consumers would agree to deal with entities with no interest in the transaction’s outcome except to foreclose when they wanted to do so.
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The basic contractual balance has been lost with no stake (risk of loss) on the part of the commercial actors. Consumers might be able to agree to that, thus waiving the legal requirements and agreeing to a virtual law that does not exist. But it should come at a price.
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And that is why I think that legally all homeowners subject to false claims of securitization (sale of their “debt”) should be entitled to damages based not only on the harm from a wrongful foreclosure but on their commercial right to receive an equitable share of the total transaction that was hidden from them.

Lawyers Take Note! Foreclosures, Most of them Fraudulent or False, are Booming Again

See https://www.marketwatch.com/picks/dramatic-increase-foreclosure-filings-are-up-more-than-150-heres-what-that-tells-us-about-the-housing-market-01659181360

Here is the unvarnished truth from the dark side:

The number of foreclosure starts — which is when the first public foreclosure notice happens — is up 219% since the start of the year, according to real estate data analytics firm ATTOM Data Solutions’ midyear 2022 U.S. foreclosure market report. What’s more, the number of properties that had foreclosure filings (this number includes foreclosure starts) is up 153% from the same time period last year.

There are several explanations for the spike in foreclosures that are recited in the above article. Some of them make no sense. But all the explanations have one thing in common: they assume the existence of an unpaid loan account receivable on the books and records of someone, even if it is not the named claimant. Therefore even if there are defects, deficiencies, and fabrication of documents, illegal foreclosures continue to be permitted.

The courts are routinely winking and nodding their way through a myriad of such defects, deficiencies, and fabrications on the strength of the doctrine encapsulated in “damnum absque injuria.” That is a violation without injury since the homeowner was obviously in default and therefore should lose the property pledged as collateral for the “loan.” So if there really was an unpaid loan in default, what is the harm? Under that doctrine, the violations are acknowledged, but the result is not changed because there is no injury to anyone. This follows the fundamental doctrine that there is no claim without injury.

Here is the rest of the story.

Nearly all foreclosures are based upon a false claim that someone is losing money because the homeowner did not make a scheduled payment. Both law and the popular consensus agree that in the absence of injury there is no claim. But for 25 years, continuing through the date of publication of this blog article, foreclosures have been successfully invoked despite the absence of such injury.

The injury is absent but the claims persist. This was considered impossible and obviously illegal until the ascent of false claims of securitization. Those claims were based on the false narrative that investors were buying shares of loans. There were no loans and the transactions conducted with homeowners and investors resulted in no sales to any third party of any kind.

Contractually there was an offer and acceptance of loans just like Mr. Ponzi and Mr. Madoff offered shares in a scheme that did not exist. And just like all scams, the start was mostly legitimate and then veered off into the highly profitable world of illusion. 

This was made possible by the use of accounting tricks and “liberalizing” accounting rules such that a potential creditor could receive payment in full and still maintain the illusion of a valid claim. This was all predicted in the 1960s by Abraham Brilloff (RIP) in his book “Unaccountable Accounting.” If anyone wants to join me in republishing this book, his heirs have already given permission. It will take about $10,000 to do it.

The end result or conclusion of all of this, as most people suspect, is that homeowners are still paying the price for the mortgage meldown and the perpetrators of that Ponzi scheme are still doing it and still generating obscene amounts of money. This money is then subject to the absolute discretion the of management of Wall Street firms who can choose to report the revenue or not and choose to pay taxes or not.

If a bailout is the payment of money to rescue someone, the banks never received a bailout. What they have consistently received are extra extravagant revenues and profits. That provides a pool of money (trillions of dollars) that the Wall Street securities brokers (“investment banks”) control and divvy out to politicians, state and federal agencies (the revolving door of employment after work at an agency), and thousands of individuals and companies that are paid to shut up and play along.

There are other analogs in history like tobacco, oil, and slavery, but this one easily surpasses the size and scope of those dark periods in American history — at least if one is to measure only economic effects. If you add social effects, the others are obviously more comparable.

EVERYONE IS ADDICTED TO YOUR MONEY.

And once again, like any Big Lie, this persists because most people believe that if I were right, everyone would know it. The success of Big Lies depends upon being so outrageous that everyone hearing it, especially if it is repeated broadly and loudly, will gradually or impulsively believe it to be true.

So once again, I challenge and defy anyone who is trained, experienced, and licensed in the financial sector with personal knowledge of the inner workings of what is generally referred to as securitization and derivatives to say I am wrong  — and then explain how I am wrong. In 16 years, nobody in CLE seminars or any other venue has ever accepted that challenge — on stage or off stage. Instead, in live seminar sessions, the participants clear a 20-foot radius around where I am seated so they won’t get fired by being “friendly with the enemy.”

HOMEOWNERS CAN AND SHOULD WIN FORECLOSURE CASES

Any homeowner who reads this and believes it is merely accepting the possibility that it might be true despite all appearances and statements to the contrary. That is the start of a successful defense strategy that can, and usually does, result in victory for the homeowner.

When that happens, you will be asked to sign a nondisclosure agreement (NDA) in exchange for the payment of money. You will also be asked to agree that the court record can be scrubbed. And, of course, neither side appeals. So there is effectively no record of the homeowner’s victory, and most people end their inquiry with a Google search or search for appellate opinions that don’t exist.

Lawyers who believed me in 2006-2009 made millions of dollars defending foreclosure victims. But one by one, they were chased out of the marketplace by bar associations and agencies responding to the undue influence of Wall Street.

 

 

Consumers wake up and give support to CFPB! Possible Game Changer at CFPB: Administrative hearings

CFPB Issues Revised Administrative Litigation Procedures, Signaling Possible Increase in In-House Adjudications

Officials at the CFPB have cautiously opened the door to administrative hearings conducted by the Bureau, subject to the administrative procedures act. This may sound like boring stuff, but the end result could be the ability to bring claims in an administrative hearing rather than in court.

Even the current revised administrative litigation procedures represent a paradigm shift by the Biden administration that harkens back to the initial reaction of the George W. Bush administration. It was the opinion of President Bush that no help should have been offered by the government to the banks. He considered the banks to have been the direct cause of the problems that became apparent in 2008. Bush was right, and now so is Biden.

If such administrative proceedings are allowed (which they ought to be), a hearing officer rather than a judge or magistrate would hear the evidence and make rulings on discovery and objections. Given the context of the agency such rulings would most likely diverge from many of the common rulings emanating from judges in court proceedings.

In plain language, a complaint could be filed with the Bureau challenging the existence, status, and authority over an implied or alleged unpaid loan account.  It is highly unlikely that lawyers representing a foreclosure mill would be successful at convincing the hearing officer to simply rely on presumptions arising from what appear to be facially valid documents.

I believe that any agency charged with regulating any activities in the marketplace or society should be required to conduct in-house hearings for the agency to arrive at findings of fact and conclusions of law.

Those findings of fact and conclusions of law might be subject to challenge in a subsequent court proceeding.  But the administrative findings would carry the presumption of validity.

So if the CFPB hearing officer decided that there was insufficient evidence to establish the existence of unpaid loan account receivable and insufficient evidence to establish the ownership of such an account, even if it did exist, the burden of persuasion and the burden of proof would shift to the attorney representing the foreclosure mill.

This would essentially leave the attorney in the foreclosure mill hanging naked in the wind. Unless they could convince a judge to overturn the findings of fact and conclusions of law reached by an administrative law judge, all of their efforts to claim rights to administer, collect or enforce the alleged or implied unpaid loan account (the underlying obligation) would vanish. I don’t think that is likely to happen.

This move by the CFPB should be encouraged by all consumers of financial products, particularly any financial product that involves installment payments. It would vastly reduce the cost of litigation, and it would end the dispute at a much earlier time than is currently available to any consumer with a meritorious defense.

Currently, such consumers generally are required to litigate to the bitter end, often spending tens of thousands of dollars, to reach a conclusion that there is insufficient evidence that the parties named by the opposition have any right, justification, or excuse for claiming any authority to administer, collect or enforce an implied or claimed obligation  (for which there is also insufficient evidence of the existence, status or balance).

Consumers must at least accept the possibility that There is no DEBT if they want to stop the wholesale theft operating in the American economy

I don’t think that is is unfair to say that much of the financial system as operated today is taking money, wealth and opportunity from the poor and middle class and giving it to the rich (management and stockholders) of companies that label themselves as conducting “financial services.” But it is both unfair and unwise to advocate throwing out a system that has in fact served better than any other financial system devised in history.

But theft and deception are not the economic equivalent to capitalism or free market forces.

I also don’t think that it is unfair to say that we are not currently operating under free market forces. Most of our marketplace is dominated by titanic entities who have reached such levels of dominance mainly because they wanted to and the government refused to exercise the control that was established in the antitrust and Securities Exchange acts. Free market forces are not oeprating when the market is not free. If consumers are deprived of choices and information about the offerings in the marketplace, there are no free market forces.

Adminsitrative agenc ies, currently struggling with rule making are failing to simply inquire about the true nature of financial products. It simply does n’t ake long to inquire about whether a particular named creditor is reporting ownership of an unpaid loan account receivable or not. Public frustration with such   agencies stems precisely from the general awareness that something is wrong and that the government is neither clarifying the issues nor doing anything about the obvious injusticies.

Alan Greenspan, former Fed Chairman, admits that he placed too much confidence in free market forces correcting for any excesses promulgated by Wall Street. But he and his successors have failed to appreciate why free market forces failed to make that correction. It was because the government had been corrupted by Wall Street money — in the form of donations or future employment.

Many consumers are reluctant to pay an attorney or forensic expert to help defend against claims for administration, collection, and enforcement for money that is implied to be due from them. Thir reluctance is understandable since they honestly believe that their installment payment “Contract” is a credit contract and that any defense would only serve to delay the “inevitable” rather than avoid it.

Most such consumers could win the case simply because there is no legal debt. It is the failure of consumers, attorneys, and the courts to recognize this as a possibility that has led to the wholesale displacement and theft of wealth from most Americans who have been lured into executing legal instruments reflecting a credit transaction under false pretenses.

There is no credit transaction — not at the beginning in most cases, and certainly not at the time of enforcement. The legal instruments executed and issued by the consumer are an accurate reflection of the consumer’s intent but are not an accurate reflection of the intent of the parties who are serving up financial products by withholding vital, legally required information about the deal.

The courts routinely ignore consumer rights under Federal and State statutes because the true legal issues are never presented. B ut once the pro se homeowner/consumer or lawyer strips away or picks at the legal presumptions arising from the new instruments (assignments and endorsements), they will find that the lawyer for the debt collect or foreclosure mill has no capability or willingness to provide evidence of the existence, status or authority over the implied debt.

The main problem, as always, much of the use of the word “debt.” Much of the skulduggery that has been successfully pursued by conduits and intermediaries for Wall Street investment banks, has been achieved by use of that word  (debt) in oral argument without any direct allegation that it exists.

So my comment to this is that people who are involved in debt collection should be defined as those who are pursuing any debt or alleged debt. Further, the alleged and actual debt should only be accepted at face value if there is an allegation and an exhibit demonstrating the claim that an unpaid account receivable exists and is owned by the named claimant. If these corrections were inserted into financial protection statutes designed to prevent illegal or unconscionable behavior aimed at consumers, many “debt collectors” and attorneys representing such companies would be out of business.

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 It should be up to the administrative agency to conduct sufficient investigation that would lead to a credible conclusion of fact as to the nature, existence and status of implied debts. The current adherence to the popular consensus results in a starting point that presumes the existence of an underlying obligation due from the consumer to the named claimant, creditor or collection agent.
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But in nearly all installment payment contracts, securitization infrastructures and practices have eliminated the underlying obligation. Such practices allow the actors to sell multiple layers and types of securities without crediting any account receivable due to anyone.  And because the consumer intended to sign up for credit, the consumer assumes that the transaction is a credit transaction —  despite the absence of any unpaid loan account receivable at the conclusion of the transaction cycle.
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 As a result of this misconception, the consumer tenders payment on an account receivable that does not exist. Those payments are a tacit admission that the transaction was a credit transaction. The absence of an account receivable or a creditor who had paid value exchange for ownership of the underlying obligation does not occur to either the consumer or the lawyer. As a result, these issues are not presented when the parties are in court. Instead, the consumer continues to admit the existence of the debt and the right to enforce it. Usually, the consumer will even admit the authority of the company named as the collection agent and the authority of the attorney to represent a named claimant who frequently has no knowledge or control over the litigation.
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The current players escape liability and escape viable defenses that are available under contract law and federal and state statutes governing lending and collection practices. In the end, they do so because they are not, in fact, collecting a debt.  these actors should be subject to the strict application of statutes, rules and regulations governing collection practices. That will never happen until we include “the alleged debt” in the definition of “debt”.

Return of Title and Possession: If the Bruce’s Beach Family Could Do It, So Should Every Homeowner that has been Illegally Foreclosed.

Hat tip to Summer chic

I have been receiving a lot of really good contributions from Summer chic, and she deserves a big atta girl. Her latest is the issue raised by the Bruce’s Beach case in which property owned by a family, fair and square, was subject to several instruments of conveyance that made their property the property of someone else. After 100 years, the family finally got the property back, but it is important to note that this was a political decision, not a legal one.

So here is the edited version my answer to summer chic:

The problem of course is that the Bruce’s case ended with a return of the land as a political decision rather than a legal one. On the legal side there are actually good solid legal arguments going both ways.

On the dark side, even if a transfer of legal title is recorded in error or fraudulently or even unconstitutionally, there has to be some point in time where the transfer becomes valid for all time. This is why we have statutes of repose in addition to statutes of limitation.

On the lighter side, the argument of the dark side should not be allowed because it incentivizes exactly what has happened in the lending marketplace over the last 25 years. People will try to fraudulently induce homeowners to enter into transactions that are not subject to any good faith or truthful disclosure. Then they will try to keep the homeowners in the dark until the statute of limitations or statute of repose has expired.

I would also add that foreclosures are mostly considered to be actions in equity and not at law. In equity, judges have the discretion to make things right.

The dark side is attempting to cover their bases the same way as the lead up to fraudulent foreclosure claims. After a successful foreclosure, there are multiple transfers of title. Many of those are fake. Thus the argument against making things right is that the court would need to unwind multiple presumed transactions both before and after the foreclosure was complete. That argument is generally received by friendly ears on the bench. It assumes that even if the “former” homeowner is completely and legally correct, the disruption to the title chain and all of the apparent (facial) transactions is too great.

And that is exactly the argument that was used in the state of Florida and other states that expressly limit the amount of time in which a homeowner can attempt to put things right. Those statutes then purport to grant a right of action for damages, which are subject to statutes of limitation and statutes of repose.

But as we all know, the facts and legal grounds for a cause of action for damages on behalf of a homeowner who has been defrauded through the weaponization of the foreclosure procedures are not generally known or understood by homeowners, who have no access to such information and who have been deprived of such information by the securitization actors who intentionally withhold such information and even disseminate disinformation.

So the question becomes whether we will ever come to terms with state and federal law making and rulemaking that attempts to legalize that which was completely illegal and inequitable.

Right up to the date that I am writing this most homeowners and nearly all lawyers and judges believe the disinformation that has been disseminated by Wall Street, thus hiding their misdeeds and thwarting the possibilities or opportunities for making things right. I personally agree completely that both legal precedent and equitable principles entitle “former” homeowners to recover possession of property that has been subject to foreclosure based upon completely false pretenses arising from fabricated documents containing false statements and references.

And once again I issue a challenge to anyone with personal knowledge and experience in investment banking such that they have personal knowledge of the facts surrounding claims of securitization: tell me or anyone I am wrong. In 16 years you have not done so. Instead, you pay or send ignorant people out to make wild claims about me or the “theories” of Neil Garfield. They are not theories and they are not mine. This is all fact and while people are entitled to their own opinions, they are not, as Senator Patrick Moynihan said, entitled to their own facts. There is a difference.

What to ask for when the window is open for Legal Discovery Demands (i.e., when you in litigation)

I was researching something when I ran across a recent filing from a Citigroup document that is called a Pooling and Servicing Agreement. Anyone who reads these pages knows that they’re not pooling loans. They are pooling the receipt of payments — regardless of whether the collection was legal or illegal — and the parties executing the agreement are only figureheads.

I have had several cases in which the homeowner won because the lawyer for the foreclosure mill relied upon a document entitled “Pooling and Servicing Agreement.” Besides the fact that everything in there is an agreement relating to future events and does not represent a conveyance or memorialization of any past transaction, it is usually true that the copy presented to the court lacks many details.

Specifically, the PSA usually lacks a mortgage loan schedule that is certified or authenticated by the records custodian of any company that was a party to the supposed PSA agreement. And we have determined that this is because the MLS does not yet exist. (See above — all provisions relate to future events).

So the PSA cannot be used as evidence or proof that the alleged REMIC trust owns anything or that anyone else in the agreement does either. In fact, there is no warranty of title or any “Whereas” clause that U.S. Bank, N.A., for example, has been entrusted with the loans shown on the MLS by the present owner or Seller who owns the underlying obligation and not just some future claim deriving its value solely from apparent (facial) ownership of a note or mortgage. No such representation appears because no such creditor or owner exists.

So if you ask for the MLS that was valid when PSA was executed, you won’t get any answer from a person with personal knowledge or authority to say that. This undermines the entire foundation of the foreclosure claim.

But it also occurred to me that the typical PSA always references forms for affidavits etc. So my interim suggestion, besides the other suggestions I have written about on this blog, is that you might ask to see those forms — but only after the attorney for the foreclosure mill references it as the basis of authority for the alleged “servicer,” “REMIC trust,” or REMIC Trustee. Here is a list taken straight out of the Citigroup form I uncovered:

Exhibit A-1 Form of Class A-1 Certificate
Exhibit A-2 Form of Class A-2 Certificate
Exhibit A-3 Form of Class A-3 Certificate
Exhibit A-4 Form of Class A-4 Certificate
Exhibit A-5 Form of Class A-AB Certificate
Exhibit A-6 Form of Class X-A Certificate
Exhibit A-7 Form of Class X-B Certificate
Exhibit A-8 Form of Class A-S Certificate
Exhibit A-9 Form of Class B Certificate
Exhibit A-10 Form of Class EC Certificate
Exhibit A-11 Form of Class C Certificate
Exhibit A-12 Form of Class D Certificate
Exhibit A-13 Form of Class X-D Certificate
Exhibit A-14 Form of Class E Certificate
Exhibit A-15 Form of Class F Certificate
Exhibit A-16 Form of Class G Certificate
Exhibit A-17 Form of Class R Certificate
Exhibit B Mortgage Loan Schedule
Exhibit C Form of Request for Release
Exhibit D Form of Distribution Date Statement
Exhibit E Form of Transfer Certificate for Rule 144A Global Certificate to Temporary Regulation S Global Certificate
Exhibit F Form of Transfer Certificate for Rule 144A Global Certificate to Regulation S Global Certificate
Exhibit G Form of Transfer Certificate for Temporary Regulation S Global Certificate to Rule 144A Global Certificate during Restricted Period
Exhibit H Form of Certification to be given by Certificate Owner of Temporary Regulation S Global Certificate
Exhibit I Form of Transfer Certificate for Non-Book Entry Certificate to Temporary Regulation S Global Certificate
Exhibit J Form of Transfer Certificate for Non-Book Entry Certificate to Regulation S Global Certificate
Exhibit K Form of Transfer Certificate for Non-Book Entry Certificate to Rule 144A Global Certificate
Exhibit L-1 Form of Affidavit Pursuant to Sections 860D(a)(6)(A) and 860E(e)(4) of the Internal Revenue Code of 1986, as Amended
Exhibit L-2 Form of Transferor Letter
Exhibit L-3 Form of Transferee Letter
Exhibit L-4 Form of Investment Representation Letter
Exhibit M-1A Form of Investor Certification for Obtaining Information and Notices (for persons other than the Controlling Class Representative and/or a Controlling Class Certificateholder)
Exhibit M-1B Form of Investor Certification for Non-Borrower Party (for the Controlling Class Representative and/or a Controlling Class Certificateholder)

A careful reading of these forms will reveal what I have been saying all along. There has never been a certificate that conveyed ownership of an underlying obligation as required by state statutes as a condition precedent to the conveyance being a legal event. Without the underlying obligation, the paper conveyance is a legal nullity — something that most pro se homeowners and seven some lawyers have difficulty grasping.

The bottom line is that if you want to win these cases, you can. And the way to do that is simply to ask for things that must have been present when the foreclosure started. Any first-year law student can tell you what must be true for anyone to claim a right to foreclosure. When the lawyer for the foreclosure mill fails or refuses to properly respond to those requests, the case shifts from being creditor vs debtor to Judge vs Foreclosure Mill. Guess who wins that fight?

These cases are not foreclosures. They are illicit abuse of process.

These foreclosure cases are fraudulent in that they are not foreclosures. A foreclosure, by definition, is limited to the enforcement of a security instrument in which ownership of the instrument and the underlying obligation is vested in a creditor who is named as the claimant.  With very few exceptions, none of the foreclosures over the last 25 years have satisfied the definitions or conditions precedent for the filing of a foreclosure action. Virtually all of them are 100% reliant on the presentation of fabricated documents containing false information about transactions that never occurred.  Those documents memorialize nonexistent transactions. They are all legal nullities.
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 Although hundreds of people in government, perhaps thousands, have understood this from the beginning, the decision made at the top (based on false information) was to sacrifice homeowners (and veterans). This policy is based upon the erroneous presumption that the entire economy would collapse if the truth about the transactions with homeowners was revealed.
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The erroneous information was that “banks were in trouble.” History shows that many banks, financial institutions, and nonfinancial actors would go out of business when the music stopped. This was true regardless of government policy. Many of them did go out of business, and the government policy designed to protect lending or banks did nothing to stop that. The sacrifice was in vain, and we suffered the great recession, from which we have still not fully recovered even after 15 years.
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The flash point of anger, frustration and resentment is a public that is aware that trillions of dollars was spent propping up virtual loan accounts and unregulated securities (derivatives), none of which had any real value.  Many experts now agree that much of that money did not need to be spent, printed or invented.
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The required stimulus of the economy could have been directly obtained without spending one dime of public money or printing new currency. By following the example of Iceland and others, the nationalization of our lending structure could have resulted in a reduction of 25% or more of household debt — forcing the major securities brokerage companies (“investment banks”) to accept their share of the risks they and created by their creation of an illegal and extra-legal spider web of schemes.
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All of the agencies charged with the responsibility of protecting the general welfare of the public have done nothing because of policy generated from the very top of government. Part of this is the result of “willing ignorance.” This in turn has resulted in forcing a nearly impossible burden on consumers, and in particular, homeowners. Each of them is required to protect themselves in prohibitively expensive litigation.
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Each of them is required to step in to protect themselves where federal and state agencies have failed to do so. And in each case where they prevail, there is no authoritative law upon which others can rely. This is because the fraudulent actors do not appeal any decision in favor of homeowners or consumers. Therefore any decision in favor of a homeowner or a consumer becomes an event only applicable to that one case.
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 This policy from the top is the only thing supporting the big lie: that the transactions with homeowners were originated as loans and maintained as such on the books of creditors. Nothing could be further from the truth. But because of general acceptance of the big lie, lawyers from foreclosure mills and judges routinely ridicule or even get mad at homeowners and lawyers alike who raise proper and timely objections to allegations and purported evidence of the existence of an unpaid loan account receivable owned as an asset on the books and records of an identified creditor.
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Let me be clear: There is no such thing as a virtual loan account, and there is no law support for enforcing a virtual loan account. And to put a finer point on it, veterans on or off the battlefield should be protected, and court officers should be held to a much higher standard of care in foreclosing and evicting people who put their lives on the line so we could even have these discussions. Such persons should be held in the highest esteem, and policy should favor the highest priority in protecting them from any hint of overreaching, unconscionable, or fraudulent business practices.
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These are not idealistic suggestions. They are practical imperatives. History shows that by protecting specific demographic populations targeted by aggressive, illegal, and fraudulent behavior, the government exposes such practices to the general population, which causes policy and enforcement changes. In short, that is what leads to a society built on the premise of government for the welfare of the people.

When is the assignment of mortgage effective against the homeowner?

In order for an assignment of mortgage to be effective, the property owner must be given notice by the existing owner of the mortgage lien acknowledging that there had been a transfer of ownership of the mortgage lien to a new, identified owner of the mortgage lien.  In order to enforce the mortgage lien, the mortgage instrument must be recorded and it must be facially valid (that is, apparently valid because of compliance with existing statute). There is no time limit on recording the mortgage instrument after it has been executed by an authorized officer of the previous owner of the mortgage lien.

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 This gets tricky. The fact that a written instrument exists does not mean that it is facially valid. It also does not mean that the content of the instrument is authentic and valid. An assignment of mortgage without a conveyance of the underlying obligation is a legal nullity. Many courts presume that the underlying obligation has been transferred simply because the note has been endorsed. But in many cases, the homeowner has prevailed because that presumption was tested, and the claimant was unable to provide corroboration of the purchase and sale of the underlying obligation for value as required by 9 – 203 of the UCC, which has been adopted verbatim in all U.S. jurisdictions.
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And always remember that Article 9 governs foreclosure of security instruments — not Article 3, as is frequently argued. Yes, it IS possible to be able to get a judgment on a note without owning the underlying obligation. No, it is not possible for a claimant to enforce the mortgage without owning the underlying obligation.
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But failure to raise the issue is waiving the issue. The court will presume the transfer of the obligation merely from the endorsement of the note. The burden is on you to rebut that presumption or, more likely, to show that the attorneys who say they represent the claimant have failed or refused to produce what they were legally obligated to produce in response to a QWR, DVL, or discovery demands. Having failed to provide corroboration for the presumptions that have been raised with their documents, they may no longer avail themselves of the benefits of those presumptions. Translation: case over — they have no claim.
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 Also, you should be very careful not to accept the argument that the signatory on the assignment of mortgage was authorized to execute the instrument. In most cases this is not true. In most cases the business entity on whose behalf the assignment was executed is not the owner of the mortgage lien nor the owner of the underlying obligation. The mortgage instrument might be facially valid but substantively invalid in those cases.  Therefore, while the instrument might have been recorded and may look right, it may be memorializing a business transaction that never occurred.
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 The current claimant has been illegally or inappropriately named if the business transaction did not occur. No value was paid for the underlying obligation if the business transaction did not occur. That means that the underlying obligation was never transferred despite wording that might be contained within the body of the assignment of the mortgage.  That means that the mortgage assignment is void as a legal nullity. And that means that the assignment of mortgage, and the mortgage lien itself, cannot serve as the foundation for a claim of foreclosure by the currently named claimant.
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 You test for the absence of such a business transaction by sending a QWR, DVL and/or demands for discovery and litigation.  Remember that you should only accept corroboration from the named claimant. If the response comes from a company who has been designated or named as being the “servicer,” you should not accept that without receiving an acknowledgment from an authorized officer of the named claimant.
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Keep in mind that most companies that are named as being a “servicer” are in fact not performing any servicing functions with respect to the receipt or distribution of funds received from homeowners.  A recent announcement by the CFPB identifies FINTECH  companies who actually perform functions relating to the receipt, deposit and accounting for payments made by homeowners. These companies have now been identified and labeled as “servicers.”
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Nobody paid me to write this. I am self-funded, supported only by donations. My mission is to stop foreclosures and other collection efforts against homeowners and consumers without proof of loss. If you want to support this effort please click on this link and donate as much as you feel you can afford.

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Neil F Garfield, MBA, JD, 75, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE COMMENTS ON THIS BLOG AND ELSEWHERE ARE BASED ON THE ABILITY OF A HOMEOWNER TO WIN THE CASE NOT MERELY SETTLE IT. OTHER LAWYERS HAVE STRATEGIES DIRECTED AT SETTLEMENT OR MODIFICATION. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.

But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more. In addition, although currently rare, it can also result in your homestead being free and clear of any mortgage lien that you contested. (No Guarantee).

Yes you DO need a lawyer.
If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.

Please visit www.lendinglies.com for more information.

4th Circuit Overrules SCOTUS: Rescission is dead and so is regulation of business entities, as long as they cal themselves “lenders”

Lavis v. Reverse Mortg. Sols., No. 18-2180, at *6 (4th Cir. July 14, 2022)  the trial court “stated that “[a] finding that RMS is entitled to tender, despite its disregard of its obligations over a period of years and its failure to take any measures to preserve its rights under the statute, would incentivize lending institutions to follow RMS’ poor example.” J.A. 2835. ”)

This decision is a perfect example of chutzpah, delusion, and legislation from the bench. The trial court was 100% correct, and the Appellate panel was 100% wrong.

Lavis v. Reverse Mortg. Sols., No. 18-2180, at *2 (4th Cir. July 14, 2022) (“We begin with an overview of TILA. Congress passed TILA “to help consumers ‘avoid the uninformed use of credit, and to protect the consumer against inaccurate and unfair credit billing.'” Jesinoski v. Countrywide Home Loans, Inc., 574 U.S. 259, 261 (2015) (quoting 15 U.S.C. § 1601(a)). In furtherance of this goal, TILA requires lenders to make certain disclosures to consumer borrowers. 15 U.S.C. § 1601(a)see also Gilbert v. Residential Funding LLC678 F.3d 271, 276 (4th Cir. 2012). One of the required disclosures is the borrower’s right to rescind a consumer credit transaction. 15 U.S.C. § 1635(a).”)

I agree that is the purpose, the intent, and the policy established by Congress, and signed into law by the President of the United States in the 1960s.  The question of whether or not a homeowner was required to do anything other than give notice of their intent to rescind has been litigated up to and including SCOTUS. To be even more specific, the question of whether or not the homeowner was required to tender any money to any claimant before TILA rescission was effective has also been litigated up to and including SCOTUS.  In all such cases, the decision was that both the intent of the statute and its content established the nullification of the note and mortgage “by operation of law.”

Judge Scalia penned the Jesinoski decision, and he was clearly bristling against the point that any other “interpretation” was even allowed, much less warranted.

Like many pro-business decisions, this decision is based on a policy argument that has already been resolved by the legislative branch.  No court has the right to interpret a statute out of existence. But that is exactly what the Fourth Circuit has done in this case.

Congress made a choice between establishing a gigantic new federal agency to monitor the details of every mortgage loan transaction or putting teeth in the statute requiring disclosures such that the penalty for violation would be so great that no actor in the lending marketplace would cross the line.  Congress decided on the second choice. This decision from the fourth circuit expressly overrules the statute and various decisions made by various courts, including the United States Supreme Court.

Yet the decision from the Fourth Circuit should come as no surprise. State and federal courts have been ignoring the obvious intent and the obvious, unambiguous provisions of the statute.  The courts routinely ignored and avoided the arguments of any homeowner who made the allegation that they had rescinded within the three-year time period set forth in the statute. The statute said there was no lien and no note. The statute said that the mortgage and note were replaced by the statutory scheme for repayment.

Hundreds of thousands of foreclosures have been conducted using nonexistent mortgages and notes as the foundation of the claim. The statute says that both the mortgages and the notes were eliminated by operation of law or merely upon the sending of the homeowner’s notice of the intent to rescind the transaction. Without that, there is no mechanism for enforcement of the disclosure requirements contained in the truth in lending act.

Boiling this down to the essentials: The Federal Statute says that the mortgage lien does not exist. The state statute says that foreclosure is the enforcement of existing mortgage liens. The foreclosure of a mortgage lien that has been rendered void by operation of law is logically and legally void.  This is not a question of clouded title. There is no question because there is no title. All such foreclosures are void according to both state and federal law.

Legally, the people who owned those properties possess the right to eject (evict) anyone from using those properties without their permission.  This strategy has been successfully used multiple times. The officers of recording offices in the counties in which deeds and mortgages are recorded are all aware of the problem — many of whom have stated openly that there is no clear title anymore.

And many if not most consumers know it. This accounts for much of the distrust of government and government institutions. Recording offices are intended to provide certainty in the marketplace. They can’t do that when courts refuse to comply with clear, unambiguous law.

Without allowing the statute to be given effect in courts, the disclosure requirements of the TILA statutes and the rescission enforcement mechanism for compliance were rendered not just moot but nonexistent. And once again, Congress, led by so-called conservatives, is doing nothing to reassert its authority over the matter. And so, despite the law being on the books for over 60 years, it will not be applied, thus clearing the way for thieves and grifters to dominate the lending marketplace.

The 4th Circuit says we cannot do things that way because the penalty is too great. They are wrong on many levels.

First, they don’t know if there is actually a penalty — i.e., loss to anyone. They had nothing in front of them that corroborated the assumption (or presumption) that RMS had suffered a loss. If there was no loss, then there was no penalty. Since virtually all transactions that are labeled as “loans” are actually paid in full several times over by the creation, issuance, sale, and trading of unregulated securities, the existence of an unpaid loan account receivable that is maintained on the books of a creditor as the creditor’s asset is at best questionable. Since no such creditor in any foreclosure action has ever shown that it maintained such a loan account, we can safely assume that they don’t have it, they don’t own it, and therefore could not have suffered any loss in that account.

Second, even if there was a penalty suffered by violators of the statute, that was the point. It was either that or establish a grandiose nitpicking federal agency that would check every detail of every mortgage loan transaction. It was one or the other. If there was no enforcement mechanism at all, which is what the courts seem to be saying, then there was no point in passing the Federal Truth in Lending Act or any of its complementary successors.

But the court was correct in that the rescission statute does not automatically void the underlying obligation. It merely replaces the contractual mechanism for collection with a statutory mechanism.  However, the homeowner was nonetheless correct that the obligation no longer existed. That is because the right of the claimant to collect on the underlying obligation is barred by the statute of limitations on TILA claims. Since the claimant neither complied with the statute nor applied for relief from rescission, their claim for recovery of the underlying obligation under the provisions of the statute expired.

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Neil F Garfield, MBA, JD, 75, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE COMMENTS ON THIS BLOG AND ELSEWHERE ARE BASED ON THE ABILITY OF A HOMEOWNER TO WIN THE CASE NOT MERELY SETTLE IT. OTHER LAWYERS HAVE STRATEGIES DIRECTED AT SETTLEMENT OR MODIFICATION. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.

But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more. In addition, although currently rare, it can also result in your homestead being free and clear of any mortgage lien that you contested. (No Guarantee).

Yes you DO need a lawyer.
If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.

Please visit www.lendinglies.com for more information.

 

 

 

 

Stop the Steal: If you take a step back those folks may actually be onto something.

I have had a large number of decent civil conversations with many people who consider themselves lifelong conservatives and who use the slogan “Stop the Steal.” My conclusion is that they believe in the slogan. And they are not attempting to propel lies into public discourse. They understand the facts. They continue to promote the slogan because it stands for the foundation of current political unrest. And I find that many Democrats and Independents (not all) agree with the premise when phrased without the slogan.

So what is it? Based upon thousands of emails, comments, and conversations with people of all stripes on the political spectrum, most people simply believe that the government has enabled theft from the consumer, the worker, and people who intended to be borrowers in a traditional loan transaction. Further, once the illegal activity is exposed, the government has refused to make corrections, prosecute the business entities that committed the violations, and even rewarded the perpetrators.

In my opinion, the true basis for the behavior of the prior administration was the government itself, which was doing the same outlandish things that Democrats decry as reason enough to give them full power despite their absence on the political battlefield. The reason for the apathy of Democratic voters is that the party has failed to convince anyone that they will actually produce a result that corrects the imbalances in our society.

There are hundreds of laws and regulations on the books concerning consumer protection, antitrust, and the creation of government agencies to regulate and even stop fraud from being committed against the American consumer. For the last 4 decades, the enforcement and even the acknowledgment of such laws and regulations have been ignored. People understand this happened because of a conscious policy decision by the government to preserve and even assist the thieves who have consistently undercut the wages, wealth, and welfare of the average American citizen.

Politicians point to the growth of GDP and the DOW. But the majority of Americans are suffering from stagnant earnings imposed by illegal maneuvers in the marketplace designed to remove participation of the average American in the “growth” that is touted by those politicians.

Governance by both parties has overtly allowed the imbalance and inequality to grow despite clear evidence that raising the wage and opportunities for the creation and growth of wealth results in a MORE vibrant economy and BETTER overall survival of companies. History does not lie.

Herman Daly, who recently surfaced again, has been arguing for decades that the love affair with the slogan “growth” or the slogan “GDP” must end. We are neither measuring national economic growth nor measuring the economic welfare of the average American citizen. That is what the “Stop the Steal” proponents are so angry about.

Announcements and reporting of current “measurements” of GDP and the DOW are merely tools of propaganda to convince all of us that prosperity is just around the corner.  For most people, it isn’t. For decades the number of people who have been able to keep pace with inflation has been shrinking. And most people do not believe the government and the media propagated myths — Republicans, Democrats, and Independents.

Very few people understand how they become victims but know or believe they have been cheated and defrauded in most or even all of their major transactions. I think they are correct. They have been unable or demoralized (and distracted) from opposing the forces of organizations that claim “capitalism” as the basis of their activities but whose revenues and profits come strictly from cheating consumers, closing out options for competing products and services, and frequent government support, directly or indirectly. That government support is at the expense of the American taxpayer, the American homeowner, the American consumer, and the American government itself.

As many of the readers of this blog have pointed out, the list of activities by so-called business entities is nearly endless in its depiction of those activities as crimes for which an individual would be aggressively prosecuted and imprisoned.

American media started out doing investigative journalism about the 2008 crash and suddenly went dark as they neared the truth about the players and the illegal activities that produced worthless junk masquerading as loans and certificates that were merely betting on the future announcements of performance of transactions with homeowners. Some of those high-profile journalists have admitted in private that they were shut down. So people of all stripes are suspicious of the media, much of which is owned by titanic corporate enterprises or people of titanic wealth.

Whether the voters are from a rural or dense urban area, they all agree that they are not getting a fair shake or a fair opportunity. The problem is neither ignorance nor ideology. The problem is that the people are right.  So, at the risk of incoming hate mail from my liberal friends, I suggest we stop vilifying those who chant “Stop the Steal” and maybe join them on the underlying sense of betrayal. We can fix this if we all admit that there is a problem. We will never fix it, and the political divide will get more strident if we don’t admit it.

How to Kneecap the Foreclosure Mill

It all starts with the assumptions you make at the beginning of the case, which is actually the declaration of default.  There is only going to be one witness designated by one company and proffered by one lawyer who is prosecuting the claim for foreclosure remedies. That one witness is generally a contract labor “employee” who knows absolutely nothing relevant to your transaction.

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I think you should be asking about data that is generated by them. The actual money trail is confusing. Maybe this will help.

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Money is sent by homeowners payable to the name of some company that is designated as a servicer.  Let’s call it ABC Inc. Despite sending a payment that appears to be payable to ABC Inc., that company never receives the money and never deposited it into any depository account in any financial institution. FINTECH (e.g.,FiServ) controls every step on behalf of a Wall Street securities brokerage house that calls itself an investment bank.  This is accomplished through lockbox contracts and manipulating the control of depository accounts.
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 The other actors include BlackKnight, CoreLogic, and other major payment processing entities operating by or through hundreds of “sub- servicers.” Remember that the CFPB has now designated all of these companies as being the source of the actual servicing functions.
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Because FiServ controls every step, it is the first or second party to even know about the receipt of any homeowner payment. As such, it is generating the data rather than receiving it, although the lockbox arrangements might result in automatic transmission of data by a sub servicer FINTECH company.  The company that has been designated as being a “servicer” never sees, handles or processes the receipt of payments from homeowners. Therefore, it neither generates nor possesses business records relating to the receipt, processing or disbursement of money received from homeowners.
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In all events, the money is automatically or manually deposited into a disbursement account controlled solely by the investment bank, on its own behalf or through the direction of intermediaries.
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The company that was designated as a servicer has no knowledge of the receipt or disbursement of monies from any depository account arising from payments made by homeowners.
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This is exactly why I have successfully argued that the copies of reports proffered to the courts on behalf of the company that was designated as a servicer are barred from evidence because they are both hearsay and hearsay on hearsay.
In addition there is no foundation for the admission of what they are calling “payment history.” Those reports are not business records because they are not records of any business conducted by the company that was designated as being a servicer.
If they are not business records, the other questions about whether they were kept in the ordinary course of business or made at or near the time of a transaction conducted by the company become irrelevant.
If they are not business records they are not qualified as an exception to the hearsay rule and therefore they are not admissible as evidence.
But a common  error  both before a hearing or trial and during, is the failure to object at the time that the witness starts testifying and proffering documents.
In most cases, the failure to object is taken to mean that the homeowner or the lawyer who is representing the homeowner has waived that objection.
Having waived the objection, for purposes of the case at bar, the testimony generally must be accepted as being true and the documents must be accepted as being authentic records of business conducted by the company that was designated as being a servicer (despite the fact that they conducted no such business).
This is court procedure not court bias.
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And the reason this is so important is that there is no other witness and no other company involved in foreclosure litigation other than the company that was designated as being a servicer.
Once you eliminate their ability to testify, you eliminate their ability to introduce any documents. They won’t have another witness. No officer of the company that was designated as being a creditor will ever execute any affidavit or testify that his employer is the owner of an unpaid loan account receivable.
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You don’t have to prove that the opposition is corrupt or evil. This is why I have been repeatedly admonishing both pro se litigants and attorneys against alleging too much. The more you allege in the way of character assassination of the opposition, the more you have to prove. But the true object of foreclosure defense is to prevent the case from being presented in the first instance.
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 Current court doctrine generally bars proactive litigation against the perpetrators of false foreclosure claims. General practice is to prevent such claims from being heard until after the homeowner has won a case in which foreclosure claims were litigated.
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This is made all the more difficult because of the current doctrine that allows the bizarre practice of the court finding that neither the servicer nor the designated creditor as having any right, title interest or any other basis or foundation for making the false claim and at the same time dismissing it without prejudice — thus giving the dep pocket actors the opportunity to simply wear down the homeowner until he or she can’t fight anymore.
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Although there are a number of tactics and strategies that can avoid such results, it is the burden of the homeowner to set up the foundation for the employment of such tactics and strategies.
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 One of those strategies is to avoid contesting when or even if anyone had physical possession of the promissory note prior to filing the claim.  contesting possession is a highly effective strategy resulting in dismissal without prejudice.
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But if you proceed on the premise that there is no loan account receivable on the books of any creditor company or creditor person, and restrict your strategies and tactics to undercut the ability to corroborate the claim and the ability to establish a foundation for the claim, you can get to a final judgment with prejudice.
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Recovering from a heart attack.

I take a break from my usual advice, consulting, strategies, tactics, and research on the current excesses in our economic system that allows lying and stealing to be covered and allowed as “capitalism.” Stealing is not capitalism. The sanctity of the contract requires consent. Homeowners had no idea about the true nature of their transactions with entities posing as lenders. Thus there could be no consent.

OK. I said I was taking a break to discuss recovery from a heart attack.  As most of you are already aware, I had another one on June 2. It was a surprise to all concerned — including doctors who administered 30 minutes of CPR. Thank goodness it did not result in broken ribs, which is often the case. But it did leave me with a bruised chest, legs, arms, neck, shoulders and back. And it reminded me that death is Nature’s way of telling you to slow down.

After the major medical intervention, I woke up feeling extremely fragile, vulnerable, and confused. For one thing, seeing myself in a hospital room with my daughter standing over me along with my cardiologist was a surprise. For another, the news that I had suffered a “massive” heart attack and was lucky to be alive was something that I had difficulty processing. What were they talking about? The last thing I remembered is that I was going for a follow-up appointment to my primary care physician. It was now 2 days later.

My strength and stamina were virtually zero. Despite them saying I was a miracle man for surviving, I did not feel like a miracle. I was in pain from head to toe.

After 9 days, I was discharged and my daughter drove me home. I have lived with her since 2016 when doctors told me to stop going to court. At first, I required help doing virtually everything. My brother is a cardiologist in South Florida. He told me to get over the despair and depression that comes from such fragility and that I would noticeably improve daily. It was difficult to accept his optimism. As for what appeared to be memory loss, he said to think of it as a concussion. At first, you might not be able to remember your own name. It was never that bad for me but it was disconcerting.

Then there was Lasix, which every patient recovering from a heart attack is required to take, at least for a while. This essentially drains fluid out of the body to reduce the pressure in the heart. It also drains out all the electrolytes leaving the patient dizzy, disoriented and foggy. I learned that the intake of this or any other diuretic must be timed properly, monititored closely, and offset by well-timed rehydration.

I had to use a walker to get around the house until suddenly, I didn’t need it anymore. Each improvement step was a surprise and jolted me back to the reality that I would get better instead of the “all is lost” mentality plaguing me.

Most of all, many things that most survivors experience that are not described by the doctors. In our hypervigilant minds, this leaves us wondering whether the latest pain, symptom, or event is significant. I found that reading a book written by a psychologist who had done a phenomenal amount of research helped me “know” what was in store for me. The book is “Thriving with Heart Disease,” and the author is Wayne M. Sotile, Ph.D. It has great information for both patients and caretakers.

I am now entering the phase of cardiac rehab — 1 1/2 hours every Monday, Wednesday, and Friday. I wanted to rebel against this regimen. But I cannot deny that my mental, emotional and physical stamina needs building. This is the test. I will find out just how much better I will get and maybe a clue about how much longer I will live.

Speaking of which, about 100 people have now asked whether I saw the light or experienced what others have described as a death or near-death experience. My answer disappoints everyone. I recall nothing from the experience. I can neither confirm nor deny the existence of the afterlife.

I will continue to add to my body of work on this blog. There are literally thousands of articles — many of which are in-depth — about the alleged “mortgage meltdown.” I, of course, contend that the explosion in derivatives had nothing to do with the creation of loan accounts and everything to do with creating and selling unregulated securities — all in unmonitored securities accounts.

For their part, homeowners failed to receive compensation in their essential role of executing documents that memorialized transactions that never happened. Thus was born the “virtual loan transaction” (hereinafter VLT), which had no analog or support in statutory or common law, replacing the traditional transactions that created an asset on the books of the “lender” (and its successors upon sale of the unpaid loan account).

VLTs are neither enforceable nor legally subject to recognition. They’re legal nullities. And there is plenty of statutory and common law support for that proposition. The conveyance of a mortgage, either originally or to a successor, is always a legal nullity if it does not also transfer the unpaid loan account receivable owned by the seller (i.e., the underlying obligation).

I will continue to oppose the efforts of those who want to chalk the resulting slaughter of homeowners as judicial corruption. The premise is false, and while it might have some value in generating donations and in providing a vehicle for venting frustrations, it diverts energy from real tasks at hand: sharpening the language of the statutes and winning these cases one case at a time, as I have done for 16 years.

I will also complete the writing of my book on the crisis, including how-to information on the successful defense of foreclosure and some proactive measures that homeowners can take that will not be dismissed out of hand like the current attempts to bring wrongful foreclosure actions against false claimants with no claim.

And I will be developing an up-to-date forms library for pro se homeowners and their lawyers. That is already in the works.

And on a more selective basis, I will provide service and assistance to individual homeowners and a few attorneys left who are willing to believe that consumer defense can be accomplished successfully and profitably for lawyers.

That’s my current status. Thanks for reading.

Credit reporting agencies getting nervous about homeowner claims: The issue is willful ignorance

As previously reported there is abundant statutory and case law support for holding the credit reporting companies (CRCs) liable for publishing false credit reports went they fail to conduct adequate due diligence. This is covered by the Fair Credit Reporting Act 15 U.S.C. §1681 et seq.  Like everyone else in the orbit of securitization claims their entire business (or most of it) consists of claims and “reports” arising from unpaid loan accounts receivable that do not exist. Having received numerous challenges to their reporting from homeowners who were sophisticated enough to make the claim, there are only two possibilities: (1) they have known for a long time that such reports were unfounded or (2) they practiced “willful ignorance” which any lawyer will tell you is no defense to a claim.

Like title insurance companies these CRCs are faced with a dilemma. Either they play along and receive the fees that account for most of their revenue or they challenge the financial institutions that can shut off all business now being sent to them and who can start their own CRCs and title companies. As one chief executive officer confided to me, it is a choice between no existence as a business and a business founded on the fraud being committed by third parties. licensed appraisers warned of this in 2005 when 8,000 of them signed a petition to Congress that said that they were being forced to falsify the appraised value of property or stop working.

Wall Street investment banks responded with “Fuhgetaboutit” and contributed hundreds of millions of dollars to the campaigns and pockets of politicians. That is how Glass Steagall was repealed and that is how we ended up with a “mortgage meltdown” that virtually destroyed the underpinnings of economies across the world, cost millions of people their homes (which were their only major investments) and millions more their jobs. The best answer was not what Secretary of Treasury Hank Paulson went down on his knees about to save a $40 billion windfall for his alma mater, Goldman Sachs.

The best answer was the initial impulse and opinion of President George W Bush — let the chips fall. If Bush did not succumb to the entreaties of Paulson, the trillions of dollars in relief funds would have actually provided relief to those who were actually hurt by fraudulent practices that lured homeowners into transactions that were extremely well-disguised partnerships in a securities scheme and not, as represented — i.e., loan transactions in which a loan account receivable was maintained at the end of the transaction cycle. In fact, only a fraction of that money would have been needed by simply forcing settlements and reformation of the illegal contracts with consumers.

Needless to say, we would also not be dealing with continuing fraudulent practices consisting of illegal, extra-legal, and morally repugnant practice producing in every case a windfall for Wall Street companies and all their affiliates and satellites while trapping consumers into deals that gave them no participation in the schemes and fuller exposure to risks that were unknown to them.

Here is a response I suggested to an unusual letter from a white-glove law firm responding to a contributor to those pages:

My demand for settlement is linked to the damages caused by Equifax — i.e., denigrating my credit reputation based upon a false claim. The false claim is based upon an unpaid loan account receivable that does not exist and a false declaration of default. The details are contained in my original claim already filed with you.

Equifax had a duty to exercise due diligence as to the initial report because Equifax had adequate information to reject the claim. Equifax now has the additional duty to conduct an investigation to assess the claim.

The slander on my credit reputation interfered with my ability to refinance or offer a refinance deal to claimants who were falsely claiming that they were owners of an underlying obligation due from me. This has resulted in years of litigation in which the claimants and their predecessors failed and refused to produce any evidence of the existence of the unpaid loan account receivable, any evidence of the existence of an unpaid underlying obligation due to them, and loss of quiet enjoyment of my property together with substantial personal and emotional distress damages arising from the continuing stress of dealing with false claims and false reports of default to credit agencies.

Equifax is only one of the credit reporting agencies that contributed to this situation, accepting fees and making credit reports that were false. My total demand is that all references to the claimed debt and any history of the debt be removed from Equifax, that Equifax notify any person who made inquiry during the period in question that the report was erroneous, and that I receive a total payment of $10,000,000, part of which is owed by Equifax.

Living Lies and How Opposing Counsel Gets Away With It: He said it was an “investor trust”

there is no witness from the named claimant — ever. This slips by because homeowners or their lawyers fail to object and undermine such proffer through earlier discovery and motion practice. It also slips by because homeowners agree or even make claims or assert defenses that use the lies promulgated by the attorney for the false claimant.

He called it the “investor trust.” — This is why you need experienced trial counsel — and maybe experienced appellate counsel. You could refer to it as the alleged investor trust.” But I think that the more appropriate tactic and strategy is to give it your own label, like “securitization vehicle” or even “Special Purpose of Vehicle” that would make it hard for the opposition to discount. That needs to be done in the context of the defense narrative that the SPV is a vehicle for Wall Street firms with right, title or internet in any debt, note or mortgage issued or owed by any homeowner.

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The label “investor trust” might be accurate or inaccurate or even fraudulent.
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Whether a trust even exists — with or without a “res” (thing) that is held in trust by the trustee — is a separate matter. If the trustee produces a witness that is an authorized officer or employee of the alleged trust, the testimony from such a witness could be used as the foundation for establishing that the alleged trust does exist. That witness is also required to testify in support of and as the foundation for establishing the existence of a trust account. And that witness is also required to establish the foundation for the existence of an unpaid loan account receivable due to the trustee, as trustee, as an obligation of the homeowners.
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That witness is NEVER present in any foreclosure proceeding. Instead, the “witness” is a know-nothing independent contractor who has no personal knowledge of anything but is allowed to say that he or she is “familiar” with the records and practices of the named “Servicer” but never asserts such familiarity with the records and practices of the trustee, the trust or anyone else.
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And while I would agree it is a fatal error on the part of the homeowner to fail to challenge the absence of a competent witness from the start, I do think that trial and appellate courts could easily have spied this unacceptable anachronism and ruled sua sponte that the testimony from such a witness is inadmissible and the records proffered are pure hearsay — particularly in view of the recent ruling by the CFPB that the only records of business conducted in connection with the receipt and disbursement of money related to the claim is performed and maintained by FINTECH companies that are not designated as the real servicers.
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To put an absurd point on it, if the “witness” was Donald Duck or Mickey Mouse appearing via Zoom, would the absence of an objection from the homeowner create jurisdiction and license of the court to take the “testimony” as true or even admissible evidence?
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Here again, as always I point out that the promise to pay issued by the homeowner (a) does not necessarily create an obligation in law or equity if there was no business or personal reason for issuing the promise and no consideration for making the promise. In this case, the promise was issued under false pretenses — i.e., for the creation of a loan account with a lender and compliance with lending laws, RESPA, and the FDCPA. If no such account was created or maintained then the obvious question is “if it was not a loan transaction, what was it?”
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Since no unpaid loan account receivable survived the transaction cycle there are only two possibilities left, to wit: gift or payment for services. It could also be argued that any payment (if there was an actual payment) was in exchange for obtaining an arguable interest in a mortgage or note even if they were procured by false pretense. Either way, it is not a loan. And either way, the homeowner did not agree to THAT transaction.
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Don’t laugh. The gift theory has indeed been floated in many courtrooms once homeowners got too close to the black hole (i.e., the claim). Having destroyed the theory that there was in fact a transaction in which the debt was purchased and sold, homeowners are faced with arguments that the note and mortgage are still enforceable “if the conveyance of the note or mortgage was a gift.”
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And that brings us to the question of “if no loan is in the alleged trust (assuming the named trust legally exists under the laws of some jurisdiction — a fact that can ONLY be determined by seeing the actual “Trust Agreement” (not the PSA) then what is in the alleged trust?” The answer in logic and law is that the trust would then be the owner of bare naked legal title to the note and the mortgage with no right to enforce either one on its own behalf either through the trustee or anyone else.
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The trapdoor to avoid is to accept or admit that a company that is claimed to be a servicer (without ever saying so themselves) has received a grant or authority to administer, collect or enforce a debt, note or mortgage from a homeowner. Of course, I have already covered how the “servicer” performs no servicing duties relating to either receipt or disbursement of funds relative to any alleged obligation of the homeowner.
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But in addition to that, the “back to basics” strategy is to challenge the grant of such powers by an entity who neither owns the right to administer, collect or enforce (that is even stated in the PSA without even looking at the Trust Agreement). Despite thousands of volumes of case law asserting established law to the contrary, courts readily accept that right to administer, collect and enforce are literally created by the conveyance document even if no such powers exist in the grantor. Without directly confronting the judge on this subject it is likely that the judge will proceed and the failure to confront might waive the point on appeal.
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And THAT brings us back to the term “investor trust.” That term is a lie if the assertion or implied argument is that the named “trust” is composed of investors who purchased certificates from an investment bank that were issued under the name of the alleged trust. Such investors are NOT beneficiaries of that trust — and there is nothing in writing anywhere, nor anyone willing to perjure themselves to say that they’re “owners” or investors in the trust, thus making it an “investor trust.”
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No investor who bought any certificates ever acquired any right, title, or interest to any asset of the trust, whether it exists or not. No investor who bought any certificates ever acquired any right, title or interest to any debt, note, or mortgage of any homeowner. The investors are irrelevant and so are the certificates. The reference to the certificates serves only one purpose — to mislead the homeowner and the court. And the court usually buys it hook line and sinker mainly because the homeowner does not challenge that assertion.
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But the reference to the “investor trust” might still be true. How? Because the trust agreement, if you ever could see it designates securities brokerage firms as beneficiaries who have some arguable (even if intangible) interest in the receipt of notice (without any receipt of original documents) of a notice of note endorsement or notice that an assignment of mortgage has been signed and recorded in the chain of title of some property.
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Even if the grantor or signator had absolutely no right, title or interest to any proceeds of administration, collection or enforcement of any debt, note or mortgage (all disclaimed in the trust agreement), the mere existence of such false and fraudulent conveyance instruments gives rise to assumptions and presumptions that the instruments, if “facially valid”, are authentic, valid and represent memorialization of a transaction that occurred in the real world — even though no such transaction was ever intended and no such transaction ever occurred.

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So the strategy should be to identify that deficiency by the unwillingness and inability to answer questions about it. First, there is no witness from the named claimant — ever. This slips by because homeowners or their lawyers fail to object and undermine such proffer through earlier discovery and motion practice. It also slips by because homeowners agree or even make claims or assert defenses that use the lies promulgated by the attorney for the false claimant. They refer to “the loan”,”the servicer,” “the trust”, the trustee,” and “the investors”. They then point out deficiencies in the documents. This means they admit to the debt and the default and the right to administer, collect and enforce and then expect the court to deny enforcement because of some technicality. That is not reality. It won’t happen and it should not happen.
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