The Truth Will Set You Free: The Logic and the Law are Simple and Old as Common Law Dating Back Centuries

Thanks to Deontos:

Editor’s Note: The logic is simple, basic and the law is old, accepted and “black letter.” No new law is needed to overturn all the foreclosures since 2001, no fancy footwork is required to throw the bums out of court and sue them for the damage they created when they filed false papers to foreclose. All that is needed is people willing to stand up for their legal rights — then the whole mortgage mess gets corrected, with a bit of pain and a bit of gain for everyone.

If the LENDERS — the hedge funds, pension funds, sovereign wealth funds (i.e., the investors who purchased mortgage backed bonds that advanced the cash to fund mortgages AND to fund the ridiculous profits derived from NOT funding mortgages) had any brains they would realize that even if they have been paid (and perhaps especially if they have been paid) they owe the homeowners (a) information and (b) the opportunity for the homeowner to recoup THEIR losses. These real parties in interest, the LENDERS, are vulnerable to suit if they withhold information regarding payment and missing an opportunity for gain if they don’t join with homeowners to create a plan of re-structuring these loans that is economically realistic.

These investors and the homeowners (who both bought financial products that were misrepresented as to value and quality) actually have similar or identical interests in pursuing all the intermediaries in the securitization chain, obtaining judgments, re-structuring the loans and securing as much of their investment, equity and wealth as possible — instead of merely taking what Wall Street is still dishing out.

“the fact that MERS is a shell entity, means MERS never holds these notes (again citing from the reported case of Mortgage Electronic Systems, Inc. v. Nebraska Department of Banking and Finance, supra where MERS explains what it does), and means that Defendant MERS can’t legitimately claim it has lost notes that were never in its possession, and means Defendant MERS can’t legitimately file affidavits of lost notes; and therefore, numerous courts have held it lacks standing to bring a foreclosure action when it can’t produce the original note or show that it holds it.”

22 Responses

  1. […] The Truth Will Set You Free: The Logic and the Law are Simple and Old as Co… […]

  2. Hi zurenarrh,

    Thanks for your post. I sure would like to learn what state you’re in and more about your case. Please email to convergence@usa.com

    I really need to know if my previously-posted case qualifies for a TILA rescission?
    Any lawyers out there care to comment?

    Thanks!

  3. Peasant said:

    ” Simply put, Quicken shorted the escrow for whatever reason even though the correct annual property tax amount (at closing) was shown on the Hud-1 & appraisal.”

    Countrywide did the exact same thing to me, and raised my monthly payment. They would not work anything out with me, so I paid them the old, lower monthly payment. They then sent me a letter saying that they would accept that payment the one time but that all future payments would have to be for the new, higher amount OR THEY WOULD RETURN THE CHECK AND NOT CREDIT MY ACCOUNT. So I stopped paying them since they 1) refused to correct the escrow problem and 2) refused to take the amount due the elusive “noteholder’ (which was intact in the old, lower payment) so they could then create a seemingly legitimate excuse to steal my house.

    So essentially I was forced into “default.” And they didn’t even try to foreclose until almost a year after sending me a “default” letter. Not to worry, though–I’ve got them scrambling now…and I’m still in the house and will be for the foreseeable future!

  4. I would appreciate some advice from Neil or others. I bought a primary residence in CA in August of last year; Quicken Loans was the originator and the monthly payment was around $2,200. Servicer was changed to Chase about 3 months later. In July this year I received an annual escrow disclosure statement which showed an escrow deficit of around $6,000. Chase demanded a monthly payment increase of around $941 for the next year, then my payment would be around $400 more per month for the balance of the 30 year fixed rate loan. Property taxes had DECREASED since the property had lost value. Simply put, Quicken shorted the escrow for whatever reason even though the correct annual property tax amount (at closing) was shown on the Hud-1 & appraisal. There was a “tax information disclosure” from Title Source which showed an incorrect annual property tax amount. There was a delinquent tax due from the previous owner & it looks like they divided this by 2 to arrive at the semi-annual tax amount. In any case it was wrong. MERS is on the trust deed. Can I rescind this under TILA or what else do you suggest? I’ve stopped paying & sent a QWR to both Quicken & Chase.

  5. I disagree with this statement of Neil’s:

    “…investors and the homeowners (who both bought financial products that were misrepresented as to value and quality) actually have similar or identical interests in…re-structuring the loans…”

    I disagree that loans should be restructured for two reasons:

    1. There is never an actual loan in the U.S. because the money for the “loans” we call “mortgages” did not exist until we the borrowers signed the promissory note. The Federal Reserve itself says that “Banks actually create money WHEN THEY LEND IT” (Google that quote–there are a couple of paragraphs there that are deceptively simple and quite thought-provoking).

    I wish I could create things by lending them, but alas, if I want to lend something, it has to exist BEFORE I lend it out.
    I wrote a cartoon explaining how there really isn’t a loan involved in a mortage and you can find it here:
    eggsistenseDOTcom (put a “dot” symbol in place of the word “DOT”).

    Essentially, we find ourselves in a situation in which we fund our own indebtedness and pay a middleman, i.e. a “lender,” interest for giving them a very valuable asset–the promissory note– that THEY are allowed to use to generate only wealth while it generates only debt for us.

    And that brings me to the second reason I disagree with Neil’s statement:

    2. If we disregard the facts above (which I don’t think we should) and accept for the sake of argument that the mortgage “loan” was of a “lender’s” actual funds on hand before we signed the promissory note, then we really shouldn’t owe anybody anything after the promissory note is sold. Obviously this is because the “lender” would have been repaid via the sale of the note.

    But we are living under the UCC, which allows promissory notes to be sold an unlimited number of times after they are indorsed and thereby converted to negotiable instruments. It is this one provision of the law that has created the securitization nightmare we are all currently enduring in which the simple act of signing a piece of white 8.5 X 11 paper–less than worthless in and of itself–can generate an amount of money limited only by the number of those willing to purchase that signed piece of paper.

    In other words, we can sign a promissory note for $100K, and it can then be sold over and over again for its face value (or diminishing percentages thereof over time) yet never be extinguished until 30 years have passed, generating thousands, hundreds of thousands, even millions of dollars (as it is bought and sold) before it’s “paid off” by the sucker (i.e. you or me) whose signature appears at the bottom of it. It’s a brilliant scheme for enriching the banking and finance industry, but it’s a horrible scourge for everyone else, as this money-for-nothing scheme can only inflate the currency.

    I think we should advocate for repealing those sections of the UCC that make securitization possible, while cancelling all the fake debt created by it.

    Then again, maybe I’ve overlooked something…

  6. *MORTGAGE FRAUD ASSESSMENT – by FDLE
    (Florida Dept. of Law Enforcement) 2005

    can be found here: http://tawebster.spaces.live.com
    in the “public” folder.

    CHECK OUT THE BOTTOM OF PAGE 20 & THE TOP OF PAGE 21 – IT SPECIFICALLY MENTIONS “FLIPPING” LOANS AND INSURANCE PAYOFFS…. CHA CHING!!!

  7. Deontas

    Sorry, many of the courts in NY do not have that option.

    You can e-mail me direct for info.

    Jeff
    onemorexx @ yahoo. com
    no spaces

  8. Jeff,

    One more thing??
    Is there a way to look
    up your case file?

  9. Jeff,

    I hope some of the other Pro Se’s here will comment. Most are reticent to give anything that even sounds like actual legal advice and so must I. First I am just a neophyte trying to find my WAY. I am not an attorney.

    I can tell you from what I have read here that there appears to be a “playbook” if your adversary is a “foreclosure mill”. They just go back
    to the “book” for another round.

    You’d better “Watch Your Back”. Are you checking for NEW filings from the “Plaintiffs” on at least a weekly basis? They might try to sneak something in on you. Just when you think you have the UPPER HAND.

    I have read posts from the “floridadefenseteam” that at this point they come back to court WITH THE ORIGINAL NOTE. And try to “Shock and Awe” you into defeat.

    I can’t say what they might do next, but better to be ready in advance!
    Have you had an Audit. Did in that audit they also check all Mortgage and Note “assignments” for legitimacy? No? Have you done this?
    I CAN’T ADVISE YOU. Your success so far is very encouraging to me.

    Go look at:
    http://4closurefraud.wordpress.com/2009/10/18/foreclosure-fraud-guide-to-looking-up-public-records-for-fraud/

    READ READ READ. The knowledge here is immense.

    Hopefully someone else here will tune in on this with more substantive insight. I am happy to be of whatever help I can.

  10. I have advocated that homeowners stop paying for the homes because the asset is not worth what it was sold to the homeowner at the time of origination.

    If there are no jobs and no money people will not have the ability to pay in the first place. The value of property has dropped and is expected to decrease in value even more by mid next year. Credit card debt is too high and the banks are raising interest rates and adding other heavy charges to account- holders.

    Auto debt is also very high, people cannot afford to pay for cars and gas, the only way out is to stop paying the pro ported note holder, ask the note holder to reduce the debt, ask the note holder to take a loss on this paper, the note holder has no other option, something or nothing.

    The facts are that these banks do not have the necessary legal paperwork to foreclose on the homes, they are faking the paper in front of Judges, they are simply forging and making up all sorts of paper to make as though the have the permission to foreclose the home.

    Making demands to the bank is very important, ask the bankster to verify everything, get the best loan audit money can, whenever you write the banks or servicers or title agents always use certified, registered mail with return receipt. The bankster will tell you that he did not get the paper, you see they get fees from the TARP for trying to do a workout with the homeowner, its all a scam.

    DO NOT MODIFY the loan it is a trap, you will be made to sign away your rights, the bankster has to be made to take some or get nothing, in most cases the bankster should get nothing, if people do not pay for mortgages, then they will have more money to invest in their local economy, buy food and things they need, instead of paying the bankster who got paid by the taxpayer, plus the insurance (AIG), do not give them the house, take the house from them out right.

    If the homeowner puts up a fight the likelihood is that he would gain, I have seen this over and over again, fight the bankster.

  11. Deontos

    Here is more info.

    Judge already dismissed for lack of standing, no note.
    Plaintiff’s atty. filed a motion to reargue. It has been 90 days and still waiting for a decision. I am pretty confident that I should prevail. They still don’t have the note only the assigned mortgage from MERS.

    My question should I prevail, what happens to the assigned mortgage.

    I would like to sue the pretender lender for fraud and also file for quiet title.

    Any comments appreciated.

    Thank You

  12. this message is for all the pro se litigants.Have “no fear”. Without M.E.R.S, these so called lenders are “POWERLESS”. from 1999 to 2002 I spent 45 months in pro per fighting my ex-wife attorney who used ” dirty, underhanded, and illegal tactics to force me out our marital home. The judge in my case that the house be sold , but that doesn’t make it legal. The key word is “Void”. When people don’t follow the law it leads to Void Judgment ,orders, and foreclosures.” Blacks Law Dictionary ” definition of Void is as follows:

    Null; ineffectal; nugatory; having no LEGAL force or binding effect; unable, in law, to support the purpose for which it was intended. ” An INSTRUMENT OR TRANSACTION (I.E NOTICE OF DEFAULT AND SALE OF YOUR PROPERTY)
    which is WHOOLY ineffective, inoperative, and in capable of ratification and which thus has no force or effect so that nothing can cure it.

    The courts rulings across the country against MERS is where our “POWERS” lye. Without their “SUPER ENTITY” the “GOD ALMIGHTY MERS” the PRETENDER LENDERS ARE POWERLESS.

    EACH AND EVERY foreclosure that MERS had it’s hand in is VOID. THEREFORE STAND YOUR GROUND.” NO RETREAT, NO SURRENDER.

    Countrywide,B Of A, Recontrust MERS and all the pretender lenders are JOKES. B of A and it’s buddies have been threaten me with foreclosure since Feb 2009. I called B of A and told them “I wish you would foreclose on my house” ” I kick your lawyers ASS in court” and “don’t call my house no more unless its your attorneys”. till This day no calls, no foreclosure.

    KNOWLEDGE IS POWER. For all the people who will have to fight without a lawyer you are going to need to do the following things.
    1. Find your local LAW LIBRARY and study the real estate books, civil code on assignment and foreclosure and you will find a TON OF CASE LAW to support your position. The librarian should be able to help you find what your looking for.

    2. Study the cases that you find in the case law that you research and look for cases that are similar to your situation.

    3. Study your states civil code of procedure and rules of the court.

    4. Go to a book store and buy a “BLACKS LAW DICTIONARY” AND “LEGAL WRITING IN PLAIN ENGLISH” BY Bryan A. Garner.

    5. Study your ASS OFF. In the world of law it’s not about who’s right! It’s about who sounds more right and who can back their position up with case law. Lawyers are good for misleading Judges with faults facts, statutes, and case law.

    6.Be fearless! Going in front of a Judge and having a lawyer using words you never heard before can be intimidating. But that’s pretty all they learn in Law School.
    There is to many books in the library for any one person to know it all. All lawyers have to do legal research. And you can do it too. ” YOU CAN WIN” IF YOU STUDY HARD ENOUGH.

    For the people in Cali. here is some great case law and civil code to research.

    CC means civil code:
    CC 2934: assignments( case law to support)
    Domard v. Fisher & burke,INC 270cal.app2d 543
    Santens v. Los Angeles Finance Co 91 cal.app 197
    Security Mortgage v Delfs 47cal. app 599
    Peters v. The jamestown brigde company 5 cal. 334
    Strike V Trans-west Discount Corporation 92 Cal.app3d735

    VERY IMPORTANT/ RECORDING STATUTES:

    CC 1214 CC 1213 CC 1217(case law to support)

    Beach V. faust 2 cal. 2d 290
    Mesick v. Sunderland 6 cal. 297
    Anderson V willson 48 cal.app 289
    California Title Ins. & Trust V Kuchenbeiser 20 cal.app 11
    Schelling V Thomas 96 cal.app 682

    LISTEN UP EVERYBODY! THIS ONE IS FOR ALL THE NON-JUDICIAL FORE CLOSURE STATES:

    When you take into to account that fact that ALMIGHTY MERS HAS BEEN ADJUDGE: Not an entity that can transfer title!!!!!! Everybody needs to go to your COUNTY RECORDERS OFFICE and a copy of the” notice of default”
    and pay close attend to the” SUBSTITUTION OF TRUSTEE”
    MERS do not have the power to make a subsitution of trustee. Therefore any substitution of trustee is VOID, VOID ,VOID. Under “DEEDS OF TRUST” the trustee hold title to your property. MERS cannot assign what its does not HOLD.

    CC 2934(a)(b) ( they cant get around this one!) if you pull up this statute you will find out exactly what I mean when it comes to the word “securitization”. VOID, VOID ,VOID,

    Here is the case law.

    Kachlon V Markowitz 168cal.appp4th 316
    Domonick V Emerald Properties 81 cal app 4th 868
    Little V CFS sevice corporation !88 cal.app 1354

    also research the case in the above cases.

    I have much move ammo than that. If any body needs any help researching case law just give me all call

    Jonathan
    209-918 74 52

  13. Jeff,

    Google for MERS Articles and
    Comments on this site.

    Look at what Neil said about
    the Kessler Case in Kansas

    Then Comment again with
    questions.

    Time is not your friend YET.

  14. Deontos

    Thank you for responding.

    I am in New York

  15. MERS and the Pretender Lenders are seeking the courts to credit them with a touchdown despite the obvious fact that they do not and never did have possesion of the football.

    Challeng flag anyone?

  16. Jeff,

    You need to argue that the mortgage cannot be assigned by MERS as nominee in the land records. see Kansas and Ark Supreme Court decisions.

    Also, all mortgage assignments need an accompanying Power of Attorney, there is no assignment without one. I can provide the case law.

    The foundation of MERS has been broken, BUT YOU MUST move the Courts into action by submitting strong pleadings based on THE FACTS via an Affidavit by YOU. Then Challenge the attorney who is only presenting HEARSAY without testimony from a competant fact witness,

    Those facing fraudulent Affidavits, THIS IS HEARSAY that is not protected by the Business Records Exemption. Without the ACTUAL business records, an accompanying Affidavit is without foundation.

    http://www.mainefairhousing.org
    http://maineloanmodifications.wordpress.com

    (207)400-4413

  17. jeff, on October 20th, 2009 at 8:49 am

    About lack of standing………

    Jeff,
    What state are you in?

  18. Dear Neil Garfield ,

    Do you have any information on :

    the ” Omnibus Motion ” …http://cancelthemortgagenow.com

    from the ” Documentary Clearing House ”

    Is this for real or just another scam ?

    We will all appreciate your comment .
    Thanks
    LFitzgerald

  19. call me a prose defenant who has gotten a judge to vacate his order grantinting summary judgement for deutsche bank national Trust , by complaining about unsigned fake affidavitt with no affiants name and unotarizied , also the courts seem to think these assignments made up by the banks lawyers are good most of them are fake and fraudulent ,and copies the the judges are crooked and will allow them to foreclose if you dont agrue your point vigoriously . call me I have been in court three years now this is my fifth judge , i need help the court just will not let me win under no circumstances but i have 30 days for the bank to re submitted good real signed affidavitts , the original lenders are out of business were are the witnesses with personal knowledge, just were are they going to come from now , the judge has gave them a second chance to screw me , call me you must gain the three years of experience I have learned dealing with crooked judges, clerks, lawyers, plaintiffs these guys are crooks . call me you must see this to believe it my name is Ken 1-216-403-8350.

  20. Good morning, Neil and Brad!!!!

    It is always a pleasure to come to your website and see that you continue to amaze us with all the information and inspiration you continue to provide us with in the homeowners fight to stay in their homes.
    My question today is………if securitzed mortgages since
    2001 are affected, does this toll the statute of limitatations, to file any claims or defenses?

    As you know, I live in Arizona and the statute of limitations is 6 years. My foreclosure. (originated by Fremont in 2002, transferred to Fairbanks Capital Corporation, as attorney-in-fact to US Bank NA as Trustee of CSFB Heat Series 2002 in May 2003, rescinded in July 2003, and foreclosed on in September 2004, arbitrated against in 2007, and now in 2009, AAA whats fees for performing the arbitation for a Released Claim that was settled under the FTC/ Curry Settlement Agreement in December 2003 and finalized in May 2004).

    The point is……….I still cannot find an attorney in the Phoenix, Mesa, Tempe area that “Gets It’. and it leaves defenseless in the pusuit of justice. From 2001-present is lot of time. I am willing to “Stand Up and Fight”, but this war can not and will not be won by the people if there is no “Advocates “who are willing to take these type of cases.

    As always, thanks for all that you do!!!!!!!!!!!!!!
    Kathi Sharpe

  21. Mers assigned my mrtg. to a trustee but not the note.

    Judge said they had no standing w/o the note.

    What happens to that assignment.

    Did Mers have the authority to assign it , even though

    my original note was sold

    Thanks

    Jeff

  22. REQUEST JUDICIAL NOTICE!

    1. MERS is not a lender, creditor or bank.
    2. MERS has no agency status as a”nominee”
    3. MERS does not lend or extend credit.
    4. MERS does not service mortgage accounts
    5. MERS does not hold Promissory Notes in possession.

    These are facts that are becoming difficult to dispute, from a Judge’s perspective given the recent Supreme Court decisions.

    Just because MERS claims its ability to misuse the word “nominee” in any way that is beneficial, this does not CHANGE 200 years of property law.

    Request Discovery from MERS, ask for an entire audit of YOUR NOTE/MORTGAGE chain of title. When they object. Move the Court to Compel and cite the cases.

    Be confident Pro Se defendants! Walk into Court and be respectful but BE A LAWYER! Act as if! Good is on your side, and Judges are waking up to the reality of the ponzi scheme.

    No silver bullets but lots of rope.

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