There’s more than one way to attack the prima facie case though—here’s a good example of a nice result from attacking the assignment…

This NY decision lays out the legal reasoning for dismissing cases for problematic assignments:

Decided on April 19, 2010
Supreme Court, Kings County
The Bank of New York, as trustee for the benefit of the
Certificateholders, CWABS, Inc., Asset Backed Certificates, Series 2007-2, Plaintiff,
Sameeh Alderazi, Bank of America, NA, New York City Environmental Control
Board, .
Plaintiff submits anet al

Upon reading the Affirmation of Linda P. Manfredi, Esq., counsel for the
Plaintiff, dated November 20, 2008, together with Plaintiff’s Memorandum of
Law, dated November 19th, 2008, together with the proposed Ex Parte Order
Appointing a Referee to Compute, and all exhibits annexed thereto, the
application is denied without prejudice, with leave to renew upon providing the
Court with proof of the grant of authority from the original mortgagee to
MERS specifically to act in its interest as related to the secured loan
which is the subject of this action.
Plaintiff seeks summary judgment to foreclose upon the property located at
639 East 91st Street, (Block 4751, Lot 31), in Kings County.
In order to establish prima facie entitlement to summary judgment in a
foreclosure action, a plaintiff must submit the mortgage and unpaid note,
along with evidence of default. Capstone Business Credit, LLC v. Imperial
Family Realty, LLC, 70 AD3d 882
, 895 NYS2d 199 (2nd Dept 2010). The Second
Department has also required a showing that the mortgage was valid. Washington Mut.
Bank, FA v. Peak Health Club, Inc., 48 AD3d 793
, 853 NYS2d 112 (2nd
In this case, Defendant Sameeh Alderazi borrowed $408,000.00 from
“America’s Wholesale Lender” on January 25, 2007. The mortgage was recorded in the
Office of the City Register, New York City Department of Finance on
February 14, 2007. MERS was referred to in the mortgage as nominee of the
mortgagee, America’s Wholesale Lender, for the purpose of recording the mortgage.
MERS purported to assign the mortgage to Plaintiff BANK OF NEW YORK on
July 23, 2008. The assignment was recorded on September 19, 2008. The
assignment was executed by “Keri Selman, Assistant Vice President of MERS, as
“authorized agent pursuant to Board of Resolutions and/or appointment”. However,
no resolution nor other proof of authority was recorded with the
assignment or submitted to the Court.
A party cannot foreclose on a mortgage without having title, giving it
standing to bring the action. (See Kluge v. Fugazy, 145 AD2d 537, 538 (2nd
Dept 1988 ), holding that a “foreclosure of a mortgage may not be brought by
one who has no title to it and absent transfer of the debt, the assignment of
the mortgage is a nullity”. Katz v. East-Ville Realty Co., 249 AD2d 243
(1st Dept 1998), holding that “[p]laintiff’s attempt to foreclose upon a
mortgage in which he had no legal or equitable interest was without foundation
in law or fact”.
“To have a proper assignment of a mortgage by an authorized agent, a power
of attorney is necessary to demonstrate how the agent is vested with the
authority to assign the mortgage.” [*2]HSBC BANK USA, NA v. Yeasmin, 19 Misc
3d 1127(A), 866 NYS2d 92 (Table) N.Y.Sup.,2008. “No special form or
language is necessary to effect an assignment as long as the language shows the
intention of the owner of a right to transfer it”. Emphasis added, Id.,
citing Tawil v. Finkelstein Bruckman Wohl Most & Rothman, 223 AD2d 52, 55 (1st
Dept 1996); Suraleb, Inc. v. International Trade Club, Inc., 13 AD3d 612
Dept 2004).
The claim in this case is that the mortgage was assigned by MERS, as the
nominee, to the Plaintiff. However Plaintiff submits no evidence that
America’s Wholesale Lender authorized MERS to make the assignment. MERS submits
only its own statement that it is the nominee for America’s Wholesale
Lender, and that it has authority to effect an assignment on America’s Wholesale L
ender’s behalf.
The mortgage states that MERS is solely a nominee. The Plaintiff, in its
Memorandum of Law, admits that MERS is solely a nominee, acting in an
administrative capacity.
In its Memoranda, Plaintiff quotes the Court in Schuh Trading Co., v.
Commisioner of Internal Revenue, 95 F.2d 404, 411 (7th Cir. 1938), which
defined a nominee as follows:
The word nominee ordinarily indicates one designated to act for another as
his representative in a rather limited sense. It is used sometimes to
signify an agent or trustee. It has no connotation, however, other than that of
acting for another, or as the grantee of another.. Id. Emphasis added.
Black’s Law Dictionary defines a nominee as “[a] person designated to act
in place of another, usually in a very limited way”. Agency is a fiduciary
relationship which results from the manifestation of consent by one person
to another that the other shall act on his behalf and subject to his
control, and consent by the other so to act. Hatton v. Quad Realty Corp., 100
AD2d 609, 473 NYS2d 827, (2nd Dept 1984). “[A]n agent constituted for a
particular purpose, and under a limited and circumscribed power, cannot bind his
principal by an act beyond his authority.” Andrews v. Kneeland, 6 Cow. 354
N.Y.Sup. 1826.
MERS, as nominee, is an agent of the principal, for limited purposes, and
has only those powers which are conferred to it and authorized by its
In the mortgage in this case, MERS claims, as nominee, that it was granted
the right “(A) to exercise any or all of those rights, including, but not
limited to the right to foreclose and sell the Property, and (B) to take
any action required of the Lender including, but not limited to, releasing
and canceling this Security Instrument.” However, this language quoted by
MERS is found in the mortgage under the section “BORROWER’S TRANSFER TO LENDER
OF RIGHTS IN THE PROPERTY” and therefore is facially an acknowledgment by
the borrower. The fact that the borrower acknowledged and consented to MERS
acting as nominee of the lender has no bearing on what specific powers and
authority the lender granted MERS. The problem is not whether the borrower
can object to the assignees’ standing, but whether the original lender,
who is not before the Court, actually transferred its rights to the
Plaintiff. To allow a purported assignee to foreclosure in the absence of some proof
that the original lender authorized the assignment would throw into doubt
the validity of title of subsequent purchasers, should the original lender
challenge the assignment at some future date.
Furthermore, even accepting MERS’ position that the lender acknowledges
MERS’ authority exercise any or all of the lenders’ rights under the
mortgage, the mortgage does not convey the specific right to assign the mortgage.
The only specific rights enumerated in the [*3]mortgage is the right to
foreclose and sell the Property. The general language “to take any action
required of the Lender including, but not limited to, releasing and canceling
this Security Instrument” is not sufficient to give the nominee authority to
alienate or assign a mortgage without getting the mortgagee’s explicit
authority for the particular assignment. Alienating a mortgage absent specific
authorization is not an administrative act.
Plaintiff submitted no other documents which purport to authorize MERS to
assign or otherwise convey the right of the mortgagor to assign the
mortgage to another party.
A party who claims to be the agent of another bears the burden of proving
the agency relationship by a preponderance of the evidence, Lippincot v.
East River Mill & Lumber Co., 79 Misc. 559, 141 NYS 220 (1913), and “[t]he
declarations of an alleged agent may not be shown for the purpose of proving
the fact of agency”. Lexow & Jenkins, P.C. v. Hertz Commercial Leasing
Corp., 122 AD2d 25, 504 NYS2d 192 (2nd Dept 1986). See also Siegel v. Kentucky
Fried Chicken of Long Island, Inc., 108 AD2d 218, 488 NYS2d 744 (2nd Dept
1985), Moore v. Leaseway Transp. Corp., 65 AD2d 697, 409 NYS2d 746 (1st Dept
1978). “The acts of a person assuming to be the representative of another
are not competent to prove the agency in the absence of evidence tending to
show the principal’s knowledge of such acts or assent to them”. (2 NY Jur
2d, Agency and Independent Contractors, 26).
Plaintiff has submitted no evidence to demonstrate that the original
lender, the mortgagee America’s Wholesale Lender, authorized MERS to assign the
secured debt to Plaintiff.
Thus, Plaintiff has not made out a prima facie case that it is entitled to
foreclose on the mortgage in question.WHEREFORE, it is ORDERED that the
Plaintiff’s application for an Order appointing referee to compute amounts
due to the Plaintiff is denied with leave to renew upon proof of authority.
This shall constitute the decision and order of this Court.

144 Responses

  1. Heya i’m for the first time here. I found this board and I to find It truly helpful & it helped me out much. I am hoping to give one thing back and help others such as you aided me.

  2. I do agree with all the ideas you have presented to your post. They’re really convincing and can definitely work. Still, the posts are too quick for starters. May just you please extend them a little from next time? Thank you for the post.

  3. @Barry In Tacoma, (or anyone else that has tried these guys).

    Are you an actual client of no4cloz? Could you please contact me directly?
    I am at notes2 AT .. i would love to talk to you one on one


    I DO think these guys (no4cloz) are legitimate though. If any of you call Matt, tell him Barry in Tacoma referred you

  4. Ginger and Storm

    We need attorneys who are willing to take on the massive fraud in foreclosure actions.

    An individual action – may or may not work – depending on the judge you get. We need law firms who are confident and willing to go the full route in order to get a precedent decision.

    Hopefully, Storm is working on this, if not – everyone’s action is hit or miss. There are no guarantees. Your judge will decide your fate – by his/her interpretation of the law.

    Again, need attorneys to carry you through – and make sure the decision interprets all law – old and new. Need to work together – we will not win by individual “lucky” challenges to foreclosure before a judge. No one can guarantee a fair decision by a judge.

    We need to access our own individual claims but also unite in presentation to authorities and Congress. Need to shut down fraud by government action. Otherwise, we all remain at the mercy of the court and a judge – who will decide as he/she interprets the law.

    Sorry, Storm, that is the way it is. Where are the lobbyists for the people?? This is what we need. After. we get attention – then we can proceed in court with individual claims against the fraud – then we need your support. We need cohesive support first. There is no other way to achieve success in courts on a mass scale. Need to turn the sentiment.

    Storm, maybe you can be the organizer. Organize – you will find many followers who are willing to support your lobbying.

  5. Ginger:

    Go to: to contact me, you’ve been misled. Right now, you’re the proverbial toad in the highway about to get squashed by the semi (bank)!

  6. Ginger

    Keep going. And tell the Sheriff – you need to know who will account for foreclosure on their BALANCE SHEET.

    Someone has to account for foreclosure – and it is not the Trust – and not the Trustee.- not the servicer (unless they purchased) – and it is not security investors – who, by the way, have dumped (charged-off) their security investments.

    Who owns the WHOLE LOAN? – that is the only question.

  7. storm
    I don’t know how to get a hold of you off line and if you disagree I don’t think you have done enough research.

    Thanks for the affirmation.
    The lawyer group/foreclosure mill that is after me has been forced to stop running ads in the paper due to my doing the basic–prove the debt letter. Saxon has had 5 weeks to prove my debt to them.
    These lawyers cannot act on any debt collecting until SAXON answers.
    I have bought 5 weeks AND THE SHERIFF IS AWARE OF EVERYTHING!!!

  8. ginger

    SOL should be addressed based upon “discovery” of the fraud. Case law supports – but not always presented by attorneys. And, not always acknowledged by judges – since case law is “interpretive.”

    You have a right to know your Creditor. Both at origination – and today. If Creditor was concealed at origination (and very often they were) and you are just discovering this – SOL should be extended.


  9. Ginger:

    As expected, you’ve gotten bad info. Contact me offline, I’ll give you the truth backed up with facts and law!

  10. storm
    2004 but I was reading there’s no SOL on fraud and TILA violations–hope that’s true

  11. Ginger:

    I read another post of yours, but saw no date regarding your refi

  12. storm
    I already stated that in a previous post, but curious, why do you want to know ?

  13. Ginger:

    What year did you refinance your home?

  14. Alina

    What state is the UPL occurring in? What county? What DA, AG or BA is going to prosecute? Is this a “practice” or a mere incident?

    People are placing these silly disclaimers in the belief that no one can claim that they are a victim of the UPL. These disclaimers would be meaningless to a UPL prosecutor, if he were so inclined to prosecute. A charge of UPL would not require reliance by a third party.

    Check with the lawyers in your firm.

  15. storm

    Yes I have looked at his list and there were none listed in Michigan. Thousands of lawyers in the greater Lansing area I can call 10 and get 10 different answers–they want retainers greater than what would make me current on my mortgage If these jerk lawyers would take all their cases on a contingent fee basis maybe they would try harder—this is the flunky world of COOLEY LAW SCHOOL. Consequently I am forced to learn all I can and this website is full of great info.
    If not for the info on TILA I never would have pulled out my mortgage papers and note to find all the violations—my truth in lending statement shows an interest rate of .612 % greater than what my note states, the notary didn’t date it and now I have verified through ST. OF MICH. records this notary was NEVER a notary, many more violations.
    One SWEET disclosure on my TILA is that my mortgage contains NO DEMAND FEATURE!
    I think this helps my defense against Saxon, as they are demanding the whole amount due.
    I know I owe them nothing and I could rescind and they could owe me treble my note.
    This is funny stuff!
    So, yes this website is awesome–I have forwarded TONS of stuff on to our sheriff so he can see the full scope of what is going on.
    And it’s working–everyone should forward some of Neil’s letters on to THEIR SHERIFF!!
    One needs to be an attorney to sort this stuff out and verify all is in order, and sheriffs are not attorneys.
    Make your sheriff aware they are on shaky ground if they proceed with these sales!
    These lawyers that try to foreclose on behalf of these pretender lenders need to be put in check–the ad they posted for us contained none of the required information regarding RESPA OR TILA–LET YOUR SHERIFF KNOW!!
    We have 2 big foreclosure mills in MI which I won't name but our submissions to our SHERIFF have stopped some of their foreclosure actions and BS ads in the paper.
    The Sheriff forced them to comply.
    I urge EVERYONE to inform their SHERIFF of violations thus making the sheriff very reluctant to proceed on these sales, as most sheriffs want to follow the law and comply, not violate.
    But our sheriff sells the homes depending on yet another sheriff to do proper paper work and he doesn't validate the other sheriff's work to validate—THIS IS UTTER BULLS__

  16. Hi guys:

    To Judge (who asked me about seeing more UCC stuff) – you can check out these guys and their perfecting-a-ucc-claim-method here:

    This is one of many such organizations that advertise such a service. Google around and you’ll find them. Check out wikipedia on ‘UCC’, also ‘Offer and Acceptance’.

    The UCC seems like a beautiful thing to me. It is relatively concise, and most of it makes sense, and is pretty much universal. Basically the underlying law for all contracts, and negotiable instruments (not real property though. We’re talking about the notes and DOTS – paper)

    I DO think these guys (no4cloz) are legitimate though. If any of you call Matt, tell him Barry in Tacoma referred you. They’re very busy. From what I can tell, these perfect-the-ucc-claim guys are stopping 10X the foreclosures that lawyers are. Their approach just seems so much more certain and straight-forward, without the anxiety of trusting a lawyer or a judge. Nevertheless, I am still nervous about it since there are probably even more scammers who promise a similar method and results.

    Alina: When I said Progressive-UCC claims, I am referring to the ‘progressive’ steps outlined in the above link. Basically perfecting a claim takes ‘progressive’ filings with the UCC, as I understand it.

    Now Alina, if you’ve got a good UCC attorney who can either confirm or deny this strategy, can you please further review this stuff with him.

    For those of you who don’t understand what I’m talking about, the basic idea here is applying the rather-straight-forward UCC process to force a pretender-lender to validate their debt. They probably can’t, and more importantly, WILL not validate the debt, including chain of title, endorsements, etc. (the important stuff posted on this site). To honestly validate the debt would expose their multiple standing and accounting frauds, so they don’t do it.

    My biggest doubts against this comes from observation that there aren’t UCC attorneys setting up reverse-foreclosure mills. How come this isn’t so? If it were so bullet proof, there would be much more of it discussed here. I for one, would love to set up a reverse-foreclosure mill.

    One other related thing. A guy posted on here about a month ago about using a UCC-fixture claim on the entire house as the ‘achilles heel’ of the pretender lender. I think the idea was that having a perfected fixture claim on your own house (‘fixture’), and recording it at the county in addition to the UCC office, would become senior to the DOT since the pretender lender would have to then validate their own paper trail, which they can’t/won’t. Now after a little study, I sort of dislike this idea. I would think a judge could say you have 2 weeks to remove your house from the property, but the property stil returns to the bank, and you may not damage the remaining property, per UCC. So maybe this tangent was another waste of my time. Any ideas on this anybody?

    In fact, setting up a reverse-closure mill to help others is kind of my goal, is to help others in wholesale fashion. I read some of the bigger lawyer blogs and they’re only handling the cases they can manage. Maybe 10 or 20 and their plate is full? I think we had 8000 foreclosures in December alone in Washington State. We need a mill like the pretender-lenders. I think it would be easier to set up a factory with a non-judicial method than a judicial method. Nevertheless, after all this study, I am leaning towards litigation instead, still not sure though.

    For any of you who doubt the power of a perfected UCC claim, see how banks are using it against their own customers at Mish’s blog:

    Thanks again everybody.

  17. Hey Bob

    Hope you do not get sued – do not be so confident. More important, are potential government actions.

    Sorry this post is so long.

    What Alina states is correct and important. But going one step further, the TILA May 2009 Amendments mandates disclosure of the creditor. A Trust has only so many certificates – these certificates are first sold to the security underwriter (actually to parent corp. because security underwriter cannot account for them). Many of these “certificates” – those “fraudulently” rated Tripe A have been paid through default swap agreements. Because the default swap provider did not have the capital to oblige their CDS obligation – the US government had to step in and bail out the swap provider (big one AIG). As a result, the US Government “purchased” ownership rights to the certificates “securities” from AIG. But the Federal Reserve Interim Opinion for the TILA Amendment states that security “beneficiaries” pass-throughs are NOT the Creditor. Verifying this with NYC brokers – they confirm – only the “default securities” are held by the Federal Reserve (via AIG and others bailout) – the note remains with the security underwriter.

    This is why the Federal Reserve, in the TILA Interim Opinion states that security purchasers are NOT the creditor. If they stated otherwise – the Federal Reserve would be the creditor to many of the foreclosures.

    In addition, the “M” security tranches were never rated AAA – required for MBS pass-through. These were simply “smaller” pro-rata tranches of the original “pool’ that had marginal “subordinated” investments in the original pool – and were not pass-through securities – not securities at all.

    Of the original tranches allocated in an SPV Trust (which must now be consolidated onto mortgage loan owner’s balance sheet due to FASB) , the majority are dissolved – with only a few tranches remaining which represent “JUNK” “POOL” “REMNANTS”. The parties that hold any remaining tranches have lost their investment – ant the bank that purchased the mortgage loans remains the note-holder – until they charge off and dispose of collection rights. However, even if one wants to say that the remaining “default” tranche holders are “investors” and OWN the loan , according the 2009 TILA Amendment, the party with the largest holding – must divulge itself as the “Creditor” to the borrower.

    I originally thought this Amendment was not retroactive, however, it appears to be retroactive – see below.(READ ABOUT 1641 (g))

    According to TILA Amendment, although there may be “multiple investors” – the party with the largest position – must disclose itself to the borrower. High risk “M” tranches – held a much smaller position in the “pool” than higher rated tranches. Most underwriters kept the higher tranches for themselves. In any case, the CREDITOR is NOT the TRUSTEE and NOT the TRUST – and NOT the security investors in the TRIPLE A rated tranches. IF someone is taking your home – you need to know the creditor – holding the NOTE – according to the new TILA Amendment – is NOT enough. The purpose of this Amendment (Congressional Intent) was that borrower could directly negotiate with their CREDITOR. Trustee can no longer claim to be the CREDITOR. Sorry this is so long.

    Just want to thank Barry in Tacoma for his nice comments. I am not that smart – I have just been battling since before many knew what was happening. I have seen a lot.- and been in contact with numerous parties, and know from experience. I have seen “The Bridge”, and have no other purpose than to try to help cross it.

    Refer to 1641 (g) Below

    CONSUMER SOLUTIONS REO, LLC, Plaintiff, v. RUTHIE B. HILLERY, et al., Defendants.

    No. C-08-4357 EMC


    2010 U.S. Dist. LEXIS 37857

    March 24, 2010, Decided
    March 24, 2010, Filed

    B. TILA Damages Claim
    Ms. Hillery’s TILA damages [*9] claim against Consumer Solutions is predicated on an alleged violation of 15 U.S.C. § 1641(f)(2). This statute provides that, “[u]pon written request by the obligor, the servicer shall provide the obligor, to the best knowledge of the servicer, with the name, address, and telephone number of the owner of the obligation or the master servicer of the obligation.” 15 U.S.C. § 1641(f)(2). According to Ms. Hillery, in 2008, she asked Saxon to provide the name of the loan’s owner or master servicer, but Saxon failed to do so. Ms. Hillery asserts that this failure to act by Saxon should be attributed to Consumer Solutions because Saxon was acting as Consumer Solutions’s agent.
    Consumer Solutions makes two basic arguments as to why Ms. Hillery’s agency theory should be rejected. Ultimately, the Court is not persuaded by either argument.
    First, Consumer Solutions points out that 15 U.S.C. § 1641(a) indicates that assignee liability is intended to be restricted, providing that,
    [e]xcept as otherwise specifically provided in this title [15 U.S.C. §§ 1601 et seq.], any civil action for a violation of this title [15 U.S.C. §§ 1601 et seq.] or proceeding under section 108 [15 U.S.C. § 1607] which may [*10] be brought against a creditor may be maintained against any assignee of such creditor only if the violation for which such action or proceeding is brought is apparent on the face of the disclosure statement, except where the assignment was involuntary.
    15 U.S.C. § 1641(a) (emphasis added). The Court agrees that § 1641(a) limits assignee liability. Moreover, as Consumer Solutions notes, in the instant case, the alleged TILA violation (i.e., failing to provide the name of the owner or master servicer of the loan) has nothing to do with a disclosure statement. That being said, that does not therefore establish that vicarious liability is barred for violations of § 1641(f)(2). Section 1641(a) is distinct and separate from § 1641(f)(2), the statutory provision at issue here. The express limitation of § 1641(a) — requiring that violations be “apparent on the face of the disclosure statement” — makes it evident that the limitation addresses a specific context, i.e., the liability of successor assignees of a loan for disclosure violations committed by the original lender. Section 1641(f)(2), the provision at issue in the instant case, concerns the wrongful conduct of a servicer that acts [*11] on behalf of the defendant lender who happens to be an assignee. In other words, § 1641(a) addresses horizontal liability between predecessor and successor whereas § 1641(f)(2) addresses potential vertical liability as between agent and principal.
    Second, Consumer Solutions argues that, if Congress had intended vicarious liability to be possible under § 1641(f)(2), it could easily have provided that an assignee could be liable for the failure of its servicer to provide the information requested by the obligor. According to Consumer Solutions, that Congress could easily have imposed such an obligation is underscored by the fact that, in 2009, Congress amended § 1641 to add subsection (g) to the statute. Section 1641(g)(1) provides as follows:
    In addition to other disclosures required by this title, not later than 30 days after the date on which a mortgage loan is sold or otherwise transferred or assigned to a third party, the creditor that is the new owner or assignee of the debt shall notify the borrower in writing of such transfer, including [inter alia] the identity, address, telephone number of the new creditor . . . .
    15 U.S.C. § 1641(g)(1) (emphasis added). While this argument has [*12] force, it is not persuasive. If § 1641(g)(1) simply required a creditor to provide the above information upon a request by the obligor, as in § 1641(f)(2), this would be strong evidence that Congress enacted § 1641(g)(1) to effectuate a change to § 1641(f)(2) — by expanding liability from the servicer to the creditors. This would imply that prior to 2009, liability was limited to the servicer. But § 1641(g)(1) does not merely require action from a creditor only upon a request by the obligor. Rather, § 1641(g)(1) puts an affirmative obligation on the creditor to act, regardless of the obligor’s conduct. By doing so, it does far more than arguably expand the list of parties who may be liable under § 1641(f)(2); it changes the substantive obligations of creditors. Therefore, contrary to what Consumer Solutions argues, § 1641(g)(1)’s enactment does not implicitly presume that a creditor is not liable under § 1641(f)(2) for its servicer’s failure to respond to a borrower’s request for information.
    Of course, the above discussion does not in and of itself establish that vicarious liability under an agency theory is incorporated into TILA. It simply indicates no clear Congressional intent [*13] to preclude creditor liability under § 1641(f)(2). The question then is whether agency principles should be implied under § 1641(f)(2). What little case law there is indicates that liability based on an agency relationship is generally cognizable under TILA. For example, in Roach v. Option One Mortgage Corp., 598 F. Supp. 2d 741, 753 (E.D. Va. 2009), the plaintiff claimed that misrepresentations were made by the mortgage broker and that the lender was liable for the misrepresentations because the broker was the lender’s agent. The court commented: “[I]t does appear that an agent’s affirmative, oral misrepresentations regarding provided disclosures might, in some cases, cause the agent’s principal to be liable for . . . a TILA violation.” Id. at 753. As another example, in In re Bumpers, No. 03 C 111, 2003 U.S. Dist. LEXIS 26255 (N.D. Ill. Sept. 11, 2003), the plaintiff claimed that there was a TILA violation based on inconsistent disclosure statements. The court rejected the claim because the inconsistent statements were provided by two different entities — (1) the lender and (2) the mortgage broker. It indicated that, if there were an agency relationship between the mortgage broker [*14] and the lender, then the plaintiff could say the inconsistent statements had effectively been made by the same entity. Although the court concluded that “the record fail[ed] to contain sufficient facts such that a jury could reasonably infer an agency relationship between [the two],” id. at *28, it assumed that agency principles applied.
    While neither of the above cases involve § 1641(f)(2), the specific statutory provision at issue here, both demonstrate that courts have assumed that the TILA incorporates common law agency theory. Such an assumption would be consistent with the general rule that remedial laws such as TILA designed to protect consumers should be liberally construed. See, e.g., Hauk v. JP Morgan Chase Bank United States, 552 F.3d 1114, (9th Cir. 2009) (“To effectuate TILA’s purpose, a court must construe ‘the Act’s provisions liberally in favor of the consumer’ and require absolute compliance by creditors.”); Rand Corp. v. Yer Song Moua, 559 F.3d 842, 845 (8th Cir. 2009) (“TILA . . . was passed by Congress as a consumer protection act, and its provisions, as well as Regulation Z, are remedial legislation, to be construed broadly in favor of consumers.”); Roberts v. Fleet Bank, 342 F.3d 260, 266 (3d Cir. 2003) [*15] (“As the TILA is a remedial consumer protection statute, we have held it should be construed liberally in favor of the consumer.”) (internal quotation marks omitted); Begala v. PNC Bank, Ohio, N.A., 163 F.3d 948, 950 (6th Cir. 1998) (“We have repeatedly stated that TILA is a remedial statute and, therefore, should be given a broad, liberal construction in favor of the consumer.”). That canon of statutory construction appears particularly appropriate considering the importance of providing borrowers with information about the current lender under § 1641(f)(2) in the increasingly prevalent context of, e.g., securitized loans where the identity of the lender may be difficult to ascertain. Absent an indication of Congressional intent to the contrary, 3 the Court holds that agency principles apply to § 1641(f)(2).

    – – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –
    3 As discussed infra, § 1640(c) appears to place some limits on agency liability.

    – – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –
    Accordingly, the Court rejects Consumer Solutions’s position that vicarious liability based on TILA is not possible under § 1641(f)(2). At the same time, however, the Court dismisses without prejudice the § 1641(f)(2) claim because, as currently pled by Ms. Hillery, it is not clear that Consumer Solutions’s [*16] liability is predicated on an alleged agency relationship that it has with Saxon. Ms. Hillery shall be given leave to amend the § 1641(f)(2) claim to make explicit her theory of liability. In amending her complaint, Ms. Hillery is advised that she must comply with Ashcroft v. Iqbal, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009), which requires that a plaintiff plead nonconclusory allegations in support of a facially plausible claim. See id. at 1949 (stating that “[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged”).
    As a final point, the Court notes that not only will Ms. Hillery have to establish an agency relationship between Consumer Solutions and Saxon in order to prevail on her § 1641(f)(2) claim, see Restat. (3d) of Agency § 1.01 (noting that “[a] relationship is not one of agency within the common-law definition unless the agent consents to act on behalf of the principal, and the principal has the right throughout the duration of the relationship to control the agent’s acts”) (emphasis added), but she may have to defend against any affirmative defense asserted by Consumer [*17] Solutions, including one that might be asserted under 15 U.S.C. § 1640(c). Under that provision,
    [a] creditor or assignee may not be held liable in any action brought under this section [15 U.S.C. § 1640] or section 125 [15 U.S.C. § 1635] for a violation of this title [15 U.S.C. § 1601 et seq.] if the creditor or assignee shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.
    15 U.S.C. § 1640(c). In contrast to the limitations of § 1641(a) discussed above, which addresses a specific context not applicable to the § 1641(f)(2) claim, § 1640(c) is more broadly phased and appears applicable to the § 1641(f)(2) claim. At this juncture, however, the Court renders no conclusion as that issue is not ripe.
    For the foregoing reasons, Consumer Solutions’s motion to dismiss is granted in part and denied in part. The motion is denied with respect to the TILA rescission claim. The motion is granted with respect to the TILA damages claim (i.e., the § 1641(f)(2) claim); however, the dismissal is without prejudice and Ms. Hillery shall have twenty [*18] (20) days from the date of this order to address the deficiency identified above.
    This order disposes of Docket No. 111.
    Dated: March 24, 2010
    /s/ Edward M. Chen
    United States Magistrate Judge


  18. Bob G.,

    I disagree with your comment that posting a disclaimer shows your legal naivete. Under the laws of most states, the appearance of giving legal advice by a person who is not an attorney will be seen as the Unauthorized Practice of Law.

    In most states, UPL is a criminal act. So, I will continue to post the disclaimer.

    Note: I am a non-attorney and nothing I write here should be construed as legal advice.

  19. Folks..language such as this is not necessary:

    “I am a non-attorney, pro se litigant. This is a First Amendment discussion of legal issues. Nothing herein shall be construed as legal advice. You should undertake independent due diligence and contact a competent attorney in your state.”

    Nobody here is going to sue you for bad “legal advice.” They can’t. Nobody retained you for legal advice. There is no such tort as “bad legal advice.” The tort is legal malpractice. So first you would have to be an attorney authorized to practice law in the jurisdiction of the person relying on your advice; then you would have had to have been retained by such person; and finally, the person must have relied upon your legal advice, and lost their case, solely as a result of your legal advice that they relied upon.

    You merely show your legal naiveté when you post such a disclaimer. It’s embarrassing. Don’t do it.

  20. Barry,

    I am not familiar with what a progressive UCC filing is so I will not comment in that regard. However, as I posted before, under the UCC, the note and mortgage are personal property and subject to UCC-9. One of provision of UCC-9 is that whoever files a financing statement first has the priority lien. Having said that, if this is their strategy, then I would think it should work because as far as I am aware, no one has filed a financing statement to perfect their liens on the mortgage and note. This is part of the sloppy work done by persons not familiar with UCC.

    I would love to get Neil’s comments on this subject.

    NOTE: I am a non-attorney, pro se litigant. This is a First Amendment discussion of legal issues. Nothing herein shall be contrued as legal advice. You should undertake independent due diligence and contact a competent attorney in your state.

  21. Barry,

    The problem stems from the fact that under the UCC, the note and mortgage are personal property. The underlying security is real property. I work with an attorney that is a UCC expert and he says that this is one of the hardest concepts for lawyers to understand. Because the note and mortgage are personal property, UCC-9 controls. Under UCC-9, perfection is achieved by filing a UCC-1 Financing Statement. To my knowledge, this has not been done. Additionally, under UCC-9, the concept of “mortgage follows the note” does not exist. This concept is under UCC-3 – Negotiable Instruments. This brings me to another area, the electronic transferrable record (UETA, Section 16). Persons in the mortgage industry have been touting the benefits of e-notes. However, e-notes are invalid. Following is from the UCCLaw-L Digest:

    “Mortgage Bankers Association, Mortgage Electronic Registration Systems, banks, etc and title companies executed an advertising blitz that E-Sign and UETA have allowed for the use of “Electronic Negotiable Instruments/Electronic Promissory Notes”. 15 USC 7003 of the E-Sign Act excludes UCC Article 3, Negotiable Instruments and UCC Article 9. UETA has the same exclusions.

    One procedure:

    1. Homeowner signs a Paper Promissory Note and a Paper Security Instrument.
    2. The Lender is named on the Paper Promissory Note and in the case of MERS, the Paper Security Instrument on it’s face identifies MERS as the Beneficiary and MERS as Nominee for Lender.
    3. The Security Instrument is recorded in public records naming MERS as Beneficiary (Invalid Perfection). (Laws of Local Jurisdiction)
    4. The “Original Wet Blue Ink Signed Paper Homeowner Promissory Note” along with “Paper Security Instrument” are scanned into an “Electronic Digitized File” and the relevant data is scrapped from the paper documents and attached to the “Electronic Digitized File” to create an “Electronic Mortgage Package”. The “Original Wet Blue Ink Signed Paper Homeowner Promissory Note” along with “Paper Security Instrument” in some cases were destroyed and in other cases vaulted for later retrieval if required in litigation.
    (Writers Note: In cases where the Original Paper Note returns it often has an incomplete Chain of Endorsements which would reflect that Fred/Fan never achieved “Holder in Due Course”, UCC Article 3 – Negotiation of Instrument or it the item presented as “True and Correct Copy” lacks proper Chain of Endorsements.

    It is the “Electronic Mortgage Package” that has been offered up to Fred/Fan.

    So Fred/Fan have purchased an “Electronic Promissory Note” and an “Invalid Perfected Security Instrument” based on the above scenario, there are variations but the results are similar that are “Worthless”.

    Humpty Dumpty is Broken and there are no laws to support either side of what can not exist”

    This has nothing to with “securitization is illegal,” but rather the method employed in the last several years was extremely sloppy. After all, as a couple of recent VA decisions have stated that securitization has been valid since 1933.

    However,recent securitization was done and promoted by persons who do not have a grasp of UCC law. The battle is trying get this info into a format the judge can understand.

    Modern day foreclosure cases are not simple foreclosures but rather complex business litigation cases. UCC attorneys understand this.

    NOTE: I am a non-attorney, pro se litigant. This is a First Amendment discussion of legal issues. Nothing herein shall be contrued as legal advice. You should undertake independent due diligence and contact a competent attorney in your state.

  22. ginger,

    “Neil has put awesome TILA info on this site==check it out.
    He states that if you go into court pro-se then the judge is obligated to look over your claim and determine violations thus being your lawyer and judge.”

    That comment shows a total lack of knowing how the real world works; so
    don’t believe it for a second, or you’ll get a rude awakening!

    BTW, I totally agree with your personal comments about most attorneys.

    Would I be wrong in assuming because you believe everything posted on this blog by Mr. Garfield, and he teaches attorneys, that you went to his list of “lawyers who get it?”

  23. Barry in Tacoma — any way we can see some of this UCC stuff??????????????????

  24. BARRY
    We have spent countless hours on this site also, we were going to pursue one avenue and then found a better one and then yet a better one.
    Don’t expect much attny advise here—it’s all your home work on this site that will get you any where.
    Neil has put awesome TILA info on this site==check it out.
    He states that if you go into court pro-se then the judge is obligated to look over your claim and determine violations thus being your lawyer and judge.
    NEVER HIRE AN ATTNY THAT ISN”T AS SMART AS YOU< 90 percent don't know anything about what they state they represent , it is very frustrating, we have paid several retainers to lawyers who sat on their asses and did nothing till the statute of limitations have run out, but they got my money .
    SCREW THAT–make the lawyer prove that they know what you are talking about before you hire them–most are scamming thieves that know how to gain your confidence and get you nothing in return.
    I have many attnys in my own family and most aren't worth a damn.

  25. One more thing.

    One strategy I’ve been following locally in Washington State, and have seen hints on here deals with shutting down the foreclosure and gaining quiet title with progresive UCC filings.

    There are groups of paranoid conspiracy theorists advocating all kinds of nonsense about the UCC being supreme law of the land, and “accepted for value”, etc. etc. – I am a very patient person by nature, but I simply have no more patience for those PCT folks. They need to take their medication.

    There are others who appear to be legitimate to me after watching them for 9 months now. I have seen evidence of two quiet titles by one group, and the other group claims to have quiet titles on the way. Their sales approach is pretty convincing as a non-judicial process removing much of the uncertainty of hiring a lawyer (very very few up here) and taking your chance with a judge.

    Basically, using notaries and UCC claims, you can force the pretender-lender parties to validate their debt including all indorsements, chains of title, etc. – Same thing you’re all discussing here every day, only it’s done with the UCC system. -It’s kind of analogous to a building supplier filing a materialmans lien against a property under construction if he doesn’t get paid. There’s a non-judicial process, that, if followed, simply works- so they claim. This UCC-method appears to be working, and I think I understand the logic of it. Of course, if it did work that simple, why wouldn’t I see more of it suggested on this site? It seems almost too good to be true.

    I am still not confident in this methodology, however, and I’m gaining confidence in the lawsuit-approach.

    Can any of you comment on the validity of this approach?

    I am not a lawyer and not offering advice, rather I’m seeking it.

    Thankyou all.

  26. First of all thanks to most people here. I, like many readers of this site, am basically obsessive compulsive about this subject and I chase nearly every link or idea put forth on this blog as my family’s entire recent past and foreseeable future revolves around my seeking justice for what has happened.

    Foreclosure Fraud:

    Great work on your exposure of Stormicusman.


    I support you for the next President of the USA.

    Now, my request for Neil, if he’s reading this, or for all of you is how can we get Neil to improve the organization of information on here. I am constantly trying to recruit others in my circle of influence to study this great-mother-of-all-topics for our collective future by referring them to this site, but they all give up because it’s just overwhelming and, frankly, sloppy. It is simply too hard for a newbie to pull up this site and go away with a plan.

    I wish there was a “best-current-strategy” flow chart, maybe with state-by-state exceptions.

    Also, I think it’s very, VERY important for somebody of the caliber of ANONYMOUS to help Neil selectively edit and categorize the bad/counter-productive advice occasionally seen here. A recent example of dis-information on here was the hypothetical socratic reasoning post: “If the money was free then why does anyone owe it?”

    I wasted dozens of hours chasing down that rabbit hole of reasoning last year. Why just a month ago, Neil pointed out that the Promissory Note is evidence of an Obligation, not the obligation itself. That entire line of reasoning in that post was based on the cash value of a piece of paper, ignoring the fact that the words on the paper required the debtor to make payments to fulfill the obligation. I wonder if it was a friend of Stormicusman that sent that piece to Neil.

    Anybody who studies that nonsense could have been far more productive analyzing PSAs for instance. I would like to see a section on the site of losing arguments, with reasons why they are losing arguments. That would be very helpful for all of us.

    Again, I am very thankful to most of you and I get a lot out of this thing simply by reading every post and every comment which seems to be the only way to go for now.

  27. Ginger

    The security underwriter’s parent purchased the mortgage loans. Cannot be securitized without this purchase.

  28. OK, Peppercorn Theory, got it, I was barking up the wrong tree, but still fishy.
    Better yet I found out through county records that Home Loan Services does not have the POA to sell my mortgage, but I know now through research why they sold it to WELLS FARGO–because Saxon has POA over WELLS FARGO [trustee] So Saxon is trying to make a chain of title after the fact, so it will look legit to the sheriff so he can proceed with the sale.
    This is crazy—the sheriff would need to be a damn good lawyer in order to verify that these sales are legit—I’m sure they don’t check POA, etc.
    This mess has forced me to read my mortgage papers and TILA, found out I have 4 major violations, perhaps this is the better route to pursue —
    more attractive to an attny.
    BTW, called # listed w/ SEC for the trust and the ROYAL BANK OF SCOTLAND ANSWERED THE PHONE…hmmmm

  29. Bob G

    Maybe. But judge I know in a case did not like it.

  30. ANON

    $1 is good and valuable consideration. (they usually throw in “and other good and valuable consideration mutually acknowledged as such.”)

    In any event, good consideration is whatever both parties agree it is. Contract consideration in most all states is governed by the “Peppercorn Theory.”

  31. Ginger

    You have a mess. First Franklin was a “scratch and dent” mortgage “reject” buyer. And, a servicer owns nothing. One dollar is not “valuable consideration.”

    You need a lawyer – since this a default debt – nothing more – in my opinion, should be a bankruptcy lawyer. If you get a good one – they are better at weeding out who is the real creditor. Have to make sure that the lawyer enforces this.

    I am not attorney and this is not meant to be construed as legal advise and only for educational purposes.

  32. My mortgage co forced me to re-fi after a divorce in order to take “his” name off—they said I couldn’t do it with a quit claim.
    So First Franklin Financial Corp. filed these signed only by me mortgage papers with the county.
    My mortgage gets transferred to Saxon Mortgage Services when First Franklin goes out of business but Saxon never filed proper papers with the county.
    Now Saxon is trying to foreclose and they know I am aware that they are not registered with the county so they got these people with Home Loan Services who claim to have power of attny. for First Franklin, who is out business since 2006, to file an ASSIGNMENT OF MORTGAGE in which they sold my mortgage to WELLS FARGO for $1.00–yes, one dollar.
    Seems like I would have to sign that as well, being I was the only one to sign my mortgage papers, but I am not a lawyer.
    I am not sure what Saxon is up to but their lawyers, the same ones trying to foreclose on me, are the ones who also signed the AOM—-Saxon is not mentioned in the AOM.
    Saxon claims I have to keep paying them even if Wells Fargo bought my mortgage.
    Saxon is a DEBT COLLECTOR and states such on every monthly billing statement. They hired another debt collector to foreclose on my home {of 30 yrs }
    I’ve sent the FDCPA demand letter to Saxon and their lawyers over a month ago. Their lawyers say they are still waiting on Saxon to prove my debt to them.
    These lawyers have sent me a bill of sorts, for $1400.00 for writing me 2 letters trying to “collect a debt “?
    So much more but I’m handling it so far after countless hours on this website and others.
    Just really wondered if my mortgage contract is legit to begin with, no witnesses and the Notary didn’t even DATE it.

  33. Ginger

    Good question. Many of these “mortgages” were not really mortgages because they never qualified to be a mortgage – and they certainly never qualified to support a “mortgage-backed security.”

    Yet the media blamed this problem on the people – “the people who bought too much house” (most subprime mortgages were refinances and not purchases). The media forgets that only a bank can approve a mortgage/loan/debt. If the people could approve their own loan – the people could also approve a modification. Does not work this way.

  34. Can anyone tell me whether or not my mortgage is even binding/legal if on every page of it, including the NOTE, only my initials are on them and no one else ever signed it? It was registered with my county that way.

  35. Hey Fraud:

    You stated: “You, Stormicusman, have had about 30 comments over a span of 6 days in which why most of this debate transpired. So, who has too much time on their hands?”

    Part of what we do is debunk the type of legal babble, we see posted on your blog and others.

    You stated: “Are you Stormicusman?”

    I don’t know who Stormicusman is!

    You stated: “Just stated that your company shares the same address that is associated with MERS.”

    Just like most of what you post is factually and legally incorrect, we do not “share the SAME address that is associated with MERS.” Clearly, if they’re in suite 300 and we’re in Suite 500, it’s not the same address. I guess now we’re a shill for MERS.

    You don’t make these same mistakes involving your clients, or on your “software” audits do you?

    Just sayin….

  36. Storm

    You mean you are relying on “HUD, SEC, MERS, Federal Reserve, Fannie Mae, Freddie Mac, Office of Thrift Supervision, Comptroller of the Currency, etc. etc.” for legal arguments??

    I have nothing else to say.

  37. Hey Stormicusman,

    Glad to see you have convinced an attorney that “gets it” to give you props.

    A few things, and I will let anyone who reads this thread to decide for themselves after your reply, going forward.

    I never said it was MERS headquarters.
    Just stated that your company shares the same address that is associated with MERS.

    Too much time?

    Lets evaluate your statement.

    In this thread, currently there are 107 comments.

    Out of those comments, I have had two replies to your rhetoric.

    You, Stormicusman, have had about 30 comments over a span of 6 days in which why most of this debate transpired.

    So, who has too much time on their hands?

    Look forward to meeting you in Florida next month at your “seminar” with Bob…

    Oh and BTW.

    There are two issues that you did not dispute.

    Are you Stormicusman?

    Do you share your office building with MERS?

    Again, just sayin…

  38. I really cant help but chime in once more on this debate.

    There are a few things that trouble me about this thread.

    Amicusman said;

    “You would be correct, that comment was just an opinion, making outlandish statements without proof, and wrong on most points!

    Now it’s a conspiracy, and ALL of the judges are complicit–NONSENSE!”

    Lets talk about opinions and conspiracy, shall we?

    1. Storm and Amicusman link back to the same site in their profile and have the same opinions that support each other.

    2. “Storm” aka Storm Bradford has an email address of amicusman @ mortgagefraudexaminers dot com that is listed in many press releases, hmmm.

    3. The physical office address for Storm’s / Amicusman’s company / website, mortgagefraudexaminers dot com, that is posted in the footer of most of the pages of their website is 1818 Library St., Suite 500, Reston, VA 20190.

    4. A simple Google search reveals that 1818 Library St., Suite 300, Reston, VA 20190 is the address for MERS MORTGAGE ELECTRONIC REGISTRATION SYSTEMS.

    Coincidences, conspiracies, or the best strategical move by a Foreclosure Fraud Fighter in the history of the world that was keen enough to set up an office down the hall from their nemesis to track their every move?

    I dunno…

    Just sayin…

  39. Storm

    Not going to reply to you again. You write “pee on your parade” – real classy.

    Subprime securitization was invented by Louis Ranieri – for mortgages that were not really mortgages – and was only done in the past decade. And, Mr. Ranieri has admitted he is “very sorry about it.” Nothing like this has ever existed – anywhere. Foreclosures have never existed in the magnitude of today – and with the fraud exerted by foreclosure mills.

    Further, any judge who granted $20,000 to an attorney who defends a foreclosure will and should be appealed. Not reasonable and will not stand.

    You claim to back up everything – but you back up nothing.

    Arrogant?? Yes. My statement stands. You know nothing about the law – you just like to be arrogant. You have lost your credibility.

    This is it – have a nice day. Continue to rant and rave – it is not worth the time of day.


    I failed to address another comment you made. You stated: “Any attorney who charges $20,000 to a party who is foreclosure should be ashamed of themself.”

    This is another example of how easy it is to misunderstand a post or comment, and go away with the wrong idea.

    Sometimes reading comments or post quickly, things get taken out of context or misread. I’m guilty of it here by not catching your important comment.

    You misconstrued my comment, I said: “I know of one lawyer who has been laughed out of federal court three months in a row, and another who just got his client hit with $20K in legal fees making these arguments!”

    The judge made the client pay $20K to the bank because his lawyer, who allegedly “gets it” filed a frivolous pleading wherein he used the nonsense we’ve been discussing.

    That’s why I ALWAYS back up what I’m saying with law or evidence. That’s how it works in court that’s how it should work here.

  41. Judge:

    Contact me offline, it would take too long to try to describe the ways in a comment.


    I hate to pee on your parade again. First, the subject matter is foreclosure and those cases are certainly hundred years old and counting. Moreover, securitization has been around for over a hundred years.

    Actually, it appear to have started in the 1700s in the Netherlands, as a way to bundle up securities that individually might be risky but collectively created a stable, reliable payoff. Some of those risky bonds were obligations of the early United States of America.

    You stated: “If you disagree, there are ways to do it without being arrogant. Maybe you did not intend to be that way – but that is how it is now coming across.

    The problem is how do you tell someone they’re wrong without telling them they’re wrong? Please don’t confuse knowing the law with arrogance.

  43. Alina:

    If you think challenging your interpretation of a case is hostility–so be it. But that’s the problem i’ve stated over and over again, people just accept what’s posted without checking it out. i checked it out, and as i figured the case doesn’t say what you say it said: the court held:

    “summary judgment is granted only when the evidence is plain, palpable, and undisputed.” Id. at 749; saying basically what i had stated: “the law fits the facts.” And nothing in the decision remotely addresses a “reasonable man standard.”

  44. Storm

    A hundred years ago we did not have securitization. Many laws have been rewritten to accommodate securitization – and this allowed fraud to run wild over the past decade. Now laws will be rewritten to stop (at least try to) the fraud. We also did not have very large and powerful law firms who derive their income from protecting those that perpetrate fraud.

    Arguments should be comprehensive and inclusive. Clearly, what we are battling is not simple and NO one has perfected a fail-proof strategy. Numerous attorneys and pro se are losing. If we want to examine cases that are winning – look at NY and at bankruptcy cases. Any attorney who charges $20,000 to a party who is foreclosure should be ashamed of themself.

    I, finally, agree with you on one point – “doing the same thing over and over again and expecting different results.”
    I have never promoted a method that does the same thing over and over – I promote no method. Although foreclosure is the same claim in courts across the country, each case has unique circumstances. What they share is that the US government wants to push these foreclosures through quickly to “clear the market”. In fact, I never give legal advise. Appears you have found a method, that if done over and over – will win 100% of the time. And, if this is so – more power to you. We will only know what really is successful as time goes on.

    Storm, I have seen and know far more than you think I do, and I do not care if you want to attack me. I wish you success and the same to the people. If you are right – and the people start winning – that will be make me happy.

    Since we hit the 100 comment mark on this topic – I think it is time to stop. As I have said before, I receive no benefit from my comments here. What I have shared is from my experience. If you disagree, there are ways to do it without being arrogant. Maybe you did not intend to be that way – but that is how it is now coming across.

    How about a truce – for the people’s sake.

  45. storm,

    The case is Robinson v. Kroger. The case is a landmark case in Georgia.

    I do not understand why the hostility. This blog is for the sharing of information. We bounce ideas off each other.

    If someone disagrees with whatever is posted, they are welcomed to post their disagreements with civility not hostility. However, when someone initiates a full frontal assault filled with insults, there is a real problem. This is very counterproductive.

    I had said that my last post was my last on this subject. However, since you requested the cite for the case, I have now posted it.

    I will not post any further.

  46. HEY STORM ! What are the ways to win? Any ideas greatly appreciated!


    You state” “the law is constantly evolving.” You have no clue what you’re talking about, judges quote cases that are over a hundred years old in their decisions.

    Also, if none of my points hold water, how come all of the cases I’ve posted are in concert, including the Chief Judge’s comments I posted.

    Every time I speak to attorneys either as a group or individually, they ALL confess these arguments are basically stall tactics, because NONE of them have EVER gotten their client any money or their house–PERIOD!

    I know of one lawyer who has been laughed out of federal court three months in a row, and another who just got his client hit with $20K in legal fees making these arguments!

    BTW, wasn’t it Einstein who said: “Insanity: doing the same thing over and over again and expecting different results.”

    You wishful thinkers and conspiracy theorists need to stop conning indigent HO’s into wasting their money for a remedy that will ONLY stall their foreclosure, when there are so many ways to ACTUALLY win!

  48. Storm

    No one is the missing the point. Your point does not hold water. The law is constantly evolving – and to state otherwise is self-defeating..

    It is, and continues to be, an intense battle in a complex and influential political environment – and the law is changing before our eyes – have you heard of “Financial Reform??” What do you think the purpose is for??? Have you ever heard of “Deregulation” and “Consumer Protection Agency” and “Derivative transparency?” etc. etc. What do you think is going on now??

    And, coming back and “winning” a foreclosure action later – after fraud has already been exposed in court – is difficult and exposes parties to counter-claims. Credibility is destroyed – and in the process, violation of rights to resolve the issues.

    Finally, not all cases are allowed to be exposed – there is law that prevents disclosure of settlements and details for other reasons.

    I cannot understand why anyone here would argue against discussion of the vast and multiple issues intertwined in fraudulent mortgage loan origination and foreclosure actions. But you seem determined to do that.

    No one is trying to uproot your ground. We are trying to share experience and provide support.- I thought that is what this blog is about.



    Deutsche Bank Natl. Trust Co. v Stevens
    2010 NY Slip Op 50909(U)
    Decided on May 18, 2010
    Supreme Court, Kings County
    Lewis, J.
    Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
    This opinion is uncorrected and will not be published in the printed Official Reports.

    Decided on May 18, 2010

    Supreme Court, Kings County

    Deutsche Bank National Trust Company as Trustee under the Pooling and Servicing Agreement Dated as of February 1, 2007, GSAMP Trust 2007-FM2, Plaintiff,


    Wilhelmena Stevens, Defendant.


    Plaintiff Attorney: Jeffrey A Kosterich & Assoc

    Defendant Attorney: Wilhelmena Stevens Pro se

    Yvonne Lewis, J.

    The plaintiff, Deutsche Bank National Trust Company moves for an order granting it summary judgment, appointing a referee to compute, deleting from the caption the remaining defendants sued herein as “JOHN DOE ONE” through “JOHN DOE TEN” and awarding plaintiff costs and sanctions for frivolous conduct pursuant to 22 NYCRR § 130.

    Plaintiff commenced this action on June 2, 2008 to foreclose a mortgage executed by defendant Wilhelmena Stevens on October 26, 2006 and encumbering the property at 517 Christopher Street in Brooklyn. The mortgage was given to secure a loan from Fremont Investment & Loan (Fremont) in the amount of $225,000.00. The plaintiff became the holder of the mortgage by assignment from MERS (as nominee of Fremont) dated June 11, 2008.

    In response to the summons and complaint, Ms. Stevens sent the plaintiff’s counsel a handwritten letter, dated June 16, 2008, wherein she stated, in sum and substance, that her loan originated with Fremont, that The plaintiff’s name was not mentioned anywhere in the loan documents and that she desired proof as to The plaintiff’s status as the mortgagor.

    When a court is deciding a motion for summary judgment, it can search the record and, even in the absence of a cross motion, may grant summary judgment to a non-moving party (CPLR 3212[b]; Dunham v Hilco Constr. Co., Inc., 89 NY2d 425 [1996]).

    “Where the plaintiff is the assignee of the mortgage and the underlying note at the time the foreclosure action was commenced, the plaintiff has standing to maintain the action” (Federal Natl. Mtge. Assn. v Youkelsone, 303 AD2d 546, 546-547 [2003]; see Natl. Mtge. Consultants v Elizaitis, 23 AD3d 630, 631 [2005]). On the other hand, “foreclosure of a mortgage may not be brought by one who has no title to it” (Kluge v Fugazy, 145 AD2d 537, 538 [1988]) and an assignee of such a mortgage does not have standing to foreclose unless the assignment is complete at the time the action is commenced (see Wells Fargo Bank, N.A. v Marchione, 69 AD3d 204 [2009]; Lasalle Bank Nat. Assn. v Ahearn, 59 AD3d 911 [2009]).

    Since it is clear from the face of the summons that this action was commenced on June 2, [*2]2008, which is prior to the date of the mortgage assignment, and the record contains no proof demonstrating that there was a physical delivery of the mortgage prior to June 2, 2008, this court finds that The plaintiff has no standing to maintain this action.

    Accordingly, The plaintiff’s motion is denied in all respects, and this action is dismissed without prejudice (see Citigroup Global Markets Realty Corp. v Randolph Bowling, 25 Misc 3d 1244[A], 2009 NY Slip Op 52567[U] [2009]).

    The foregoing constitutes the decision and order of the court.



    Yvonne Lewis, JSC


    My motive is to keep the HO from wasting their money on arguments the judges, and anyone else with two brain cells to rub together, knows all they do is stall the foreclosure. Why don’t you call Judge McGrady’s chambers and ask him what his motives are? I guess now I’m a shill for the Chief Judges!

    There have been over seven million foreclosures over the last couple of years, why don’t you or anyone else post cases where the HO won.

    BTW, winning doesn’t mean dismissal without prejudice, where they come back and foreclose eventually!

  51. Alina:

    You’re still missing the point, you just changed the scenario. Of course if the factual scenario is different from one case to the other the law fits the facts, but the law is still the law, or the court can’t give an opinion without it.

    Moreover, I’ve read the slip and fall cases and nowhere is there mentioned the “reasonable man” standard and what you stated: “plaintiff did not keep a lookout for their own safety” is not the standard in Georgia or any other state. So, why don’t you post the case you wrote the brief on so we all can read it.

  52. amicusman,

    Not stall tactics – rather exposure and evidence of fraud in the entire foreclosure process.

    Not sure what your own motives are. You protest too much –

  53. amicusman,

    This wil be my last post on this subject.

    I want to convey to you a simple case that I happened to have been invovled with concerning the overturing of a long held precendent. In this particular case, I wrote the Supreme Court brief.

    The case invovled a slip and fall where our client was the plaintiff. At the time, in Georgia, the standard for winning a summary judgment case was the notion that the plaintiff did not keep a lookout for their own safety. This was a standard that pretty much appeared to be set in stone. Slip & fall cases were the hardest cases to win due to that standard. Plaintiffs’ attorneys knew that their chances of winning a summary judgment argument were slim to nill.

    However, we argued that the standard should be the “reasonable man” standard. After all, no one walks around with their head bent down looking at their toes.

    In the lower court, we lost on summary judgment. We appealed to the state appellate court, where we won. The judge agreed that the standard should be the reasonable man standard and dismissed the defendant’s arguments that precedent should be followed. Because precedent was not on our side, the defendant appealed to the Georgia Supreme Court.

    The Georgia Supreme Court affirmed the appellate court’s decision. Thereby establshing new precedent. The Georgia Supreme Court could have said “the law is the law” and the lower court is obligated to follow precedent or in your words “spanked” the lower court, but they did not. Instead they listened to our well reasoned arguments and decided that a change needed to be made.

    This is how precedent is made. It happens every day – it is not a rare occurrence. If courts have to interpret “the law” in a very narrow strict fashion, there would be no need for our court system. However, in our system of justice, judges are empowered with the ability to interpret “the law” broadly and liberally even if it means that it bucks precedent. This is what makes the law organic. The ability of judges to use their intellect to rectify bad case law. Without this ability, there would be no way to overturn bad case law.

  54. Alina:

    No, you’re missing the point. You said: “should adhere to precedents set by higher court, the courts also given latitude to interpret the law the way they see fit. Lower courts do not have to strictly adhere to a higher courts’ decision, although this is usually the way things happen.”

    Did you not read what the Supreme courts said. The supreme courts didn’t say should they said the lower courts are “OBLIGATED,” and “unless and until they are overruled by the supreme court.”–PERIOD!

    You also said: “There are judges ALL the time that step out of the box and issue rulings/decisions that are in direct contravention of accepted precedent.”

    Not true, a VERY rare occurence, and if one does they get spanked by the higher court!

    You also stated: “there is slew of evidence proving his point. Judges in Florida are not following “the law” and are issuing decisions based on clearing their dockets rather than sound legal theories.”

    Where is this “slew of eveidence?”

    And your last statement: “a judge granting a summary judgment to a bank when the homeowner is standing in front of the judge with canceled checks showing the mortgage payments were never late.”

    I don’t believe that for a second. I bet if someone investigated what REALLY happened, it never happened that way at all!

    I hear these stories all of the time, and when checked out, turns out they’re B.S.

    EVERY single case we’ve read where the HO lost was backed by law, as well as EVERY single case where it was dismissed WITHOUT prejudice, it too was backed with law. That’s why the “the law is the law,” you can’t have an opinion without it!


    You’re disagreeing with the law, I don’t have any “opinions” I’m just pointing out the law!

    Like the very first post I made on this subject: “Great stall tactic, but was it worth all of the money spent by the homeowner.”

    Read what Chief Judge Thomas McGrady of Pinellas/Pasco County said regarding same: “It’s just a stall.”

  56. amicusman,

    You have missed my point. While I agree that the lower courts should adhere to precedents set by higher court, the courts also given latitude to interpret the law the way they see fit. Lower courts do not have to strictly adhere to a higher courts’ decision, although this is usually the way things happen.

    There are judges all the time that step out of the box and issue rulings/decisions that are in direct contravention of accepted precedent. The judges know they will be appealed, but they also know that their decisions may be upheld – all the way up to the Supreme Court. It’s a risk many judges are willing to take for the sake of justice,

    Justice Ehrlich stated that our law is organic. It is not set in stone.

    As for Foreclosure Fraud’s statements, there is slew of evidence proving his point. Judges in Florida are not following “the law” and are issuing decisions based on clearing their dockets rather than sound legal theories. How else can you explain a judge granting a summary judgment to a bank when the homeowner is standing in front of the judge with canceled checks showing the mortgage payments were never late.

  57. Think we need to get away from this topic. Everyone is entitled to their opinion – and amicusman – your comments are only your opinion. Do not agree with you – and we live in a world where there is much disagreement.

    Think Foreclosure Fraud is right – “I have always told my clients that the law is logical. That is no longer true! Judges now rule in order to clear their dockets. Judges violate the principles of law, which form the backbone of our country, in order to clear their dockets, not to follow the law.”

    Now, let’s move on. Finding where mortgage loans may really be is becoming increasingly difficult because many are with distressed debt funds/buyers. These are private transactions/agreements and getting discovery regarding them is extremely difficult. Judges will often protect “privacy” and sidetrack discovery in the process. Also, this prevents homeowners from directly negotiating with their creditor, and some of these creditors (see Louis Ranieri articles) are doing things to help homeowners by reducing principal and interest rate on loans they purchase. If we do not know our creditor – we cannot negotiate.

    See below from a recent article.

    “The financial crisis has created some great investment opportunities buying distressed mortgages off banks. The glut of nonperforming loans and bank failures has caused numerous lenders to sell off mortgage assets at deep discounts. This article will provide an overview of the distressed debt industry and various investment opportunities.

    With the increase of foreclosures in recent years banks have an increasing need for liquidity. Most banks are not equipped to deal with non performing loans and do not have the staff or flexibility to work out loan modifications. Additionally, many failed banks and and mortgage back securities need to be liquidated creating more distressed mortgage pools for sale.

    Why buy distressed mortgages?

    Banks are selling these assets at deep discounts. An investor can typically purchase a non performing loan for less than 50 cents on the dollar. This provides a significant opportunity for an investor to make a profit by either foreclosing on the property or working out a loan modification with the homeowner.

    Where to find distressed/discounted mortgages

    Most of the large banks will sell large portfolios of distressed mortgages to hedge funds and large institutional investors. A number of banks will sell smaller packages of loans that individual investors and smaller investment funds can purchase portfolios as low as a few hundred thousand dollars.

    There are a number of intermediaries and hedge funds that will break up large packages of loans and sell individual mortgages. This allows regular investors to purchase assets for as little as a few thousand dollars.”


    How about a discussion on distressed mortgage loan buyers? This is not discussed much on this blog.

  58. Bob G:

    You would be correct, that comment was just an opinion, making outlandish statements without proof, and wrong on most points!

    Now it’s a conspiracy, and ALL of the judges are complicit–NONSENSE!

  59. Alina:

    You proved my point. It appears EVERY case you posted was from a supreme court, a supreme court CAN change the law, but the lower courts have to follow it; as I have shown. That was the purpose of the discussion, the lower courts ARE ruling pursuan to stare decisis!

    Once again you’re in the right church, but wrong pew.


    What you say is true, nobody needs an attorney if they know the law.

  61. Bob G- I think you missed Foreclosure Fraud’s intention: if Joe is doing the 10,000 dollar remodel for Bill, but Joe is strapped for cash and sells the contract to Simon for 3,000 dollars, Joe still has to do the job, but Simon bought the contract. So Simon would get the difference, in this case 7,000 dollars. This is actually very common, although the % going to the factor (Simon, in this case) is usually much lower.
    So if you were to hire Rembrandt to whip up a painting for 1 million dollars, and he sold the contract to someone else for 300K to raise quick cash, he would still have to create your masterpiece, but the factor would be entitled to the 700K difference. I hope this illuminates the point.

  62. Foreclosure Fraud –

    I don’t see the what the point is here. On one hand we are presented with the Joe-Bill-Simon personal services contract assignment and the mortgage and note assignment contracts (assuming for the moment that the mortgage/note deals are truly genuine, and not the result of fraud).

    I don’t see how the personal services contract is assignable at all. Let’s say that I commission Rembrandt to paint me a masterpiece. The contract calls for the painting by Rembrandt in exchange for $1 million dollars. Rembrandt sells the contract to Charlie for $300,000. Charlie shows up with a painting that he produced in a day at his kitchen table. He demands the $1 million. I tell him to get lost, I bargained for a painting by Rembrandt. Charlie sues me for breach of contract. Guess what? Charlie gets thrown out of court if his lawyer doesn’t throw him out of his office first.

    There is absolutely no connection between this scenario and the mortgage and note scenarios. Thus, I have a hard time believing that any licensed attorney would actually write this.

    To the extent Florida judges are acting unlawfully by being complicit in mortgage fraud, perhaps Florida foreclosees should complain to the U.S. Attorney’s office. That’s what I would do.

  63. Had to chime in on this debate for one reason.

    In Florida most of the judges do not follow the rule of law. I see it first hand week after week when I sit in the courtrooms of South Florida observing case after case.

    What do you do then?

    Below is an excerpt from an article that was written by my Partner in Justice Carol Asbury, Attorney at Law in Florida who fights this fight every day…

    “I have been an attorney for over 25 years. I have been practicing foreclosure defense law for over two years. I am just as passionate about protecting the rights of the homeowner today as I was when I started. I have often asked myself why. The answer is here.

    Congress acted to break the laws down that provided protection against “banks gone wild”. The Banks schemed to make billions of dollars through the process of securitization of mortgage loans. The result was a collapse of the American economy and those around the world. But for us on the ground it led to the loss of our jobs, the loss of our savings and the loss of our homes. The impact has also lead to stress on marriages and the breakup of families and a fundamental distrust in government. The latter is well deserved.

    However, it has also caused the break down of the judicial system. It is for this reason that I fight the fight.

    I have always told my clients that the law is logical. That is no longer true! Judges now rule in order to clear their dockets. Judges violate the principles of law, which form the backbone of our country, in order to clear their dockets, not to follow the law. The end result of this breach in the judicial responsibility to administer the laws fairly and evenly reaches all of us — whether or not we are in foreclosure, close to foreclosure or contemplating foreclosure.

    I still remember the first time I argued a motion to dismiss before a judge in Broward. I was sure I would win. I had discovered that the Assignment of Mortgage was not only created by the Plaintiff’s law firm but signed by one of their senior partners (a common event). This is fundamentally a breach of a lawyer’s ethical code of professional conduct. The Plaintiff’s attorneys are creating the very evidence that the Plaintiff needs to take — unjustly – the property of an American Citizen. This was only one of the many points of law that I pointed out to the judge — it was the most egregious. Or so I thought. The judge – one who likes to think out loud for long periods of time — actually said to me that he saw nothing wrong with the plaintiff’s attorney creating and signing an assignment of mortgage as a vice president of a company whom the attorney has no connection, which also represents a conflict of interest. The Judge said that an attorney could hold two positions at one time. I was astounded and silently looked at the judge in silence. The actions of the Plaintiff’s attorney is a fundamental conflict of interest and a fraudulent creation of evidence.

    Welcome to “Foreclosure Law”!

    All complaints must state a cause of action. None of these complaints filed by the Banks/Lenders/Trusts state a cause of action. What does that mean?

    If Joe signs a contract with Bill whereby Joe agrees to build a bathroom for Bill and Bill agrees to pay Joe $10,000, that contract can be sold. Say Joe sells his interest in the contract to Simon for $3000. Now Simon sues Bill to enforce the terms of the contract. Simon alleges in the complaint that Bill agreed to pay him (Simon) $10,000 in exchange for Simon building a bathroom for Bill. Simon attached to the complaint the contract between Joe and Bill. Bill’s attorney will move to dismiss the complaint because the allegations in the Complaint conflict with the Contract, which is only between Joe and Bill. The court should dismiss the complaint for failure to state a cause of action because the exhibit (i.e. the Contract) conflicts with the allegations in the complaint (that Bill agreed to pay Simon $10,000 for building the bathroom).

    The principle of law here is that Exhibits rule over the allegations in the complaint. This is logical because the contract was made before the law suit was ever contemplated; therefore, the contract would be the best evidence of the agreement between the parties. Obviously Bill does not know that Joe sold his rights to the contract to Simon. Bill may not even know who Simon is. So Simon must amend the complaint to include the assignment of the contract that Bill signed with Simon when the rights to the contract were sold. Once amended, the complaint now has the contract and the assignment attached as an exhibit which completes the complaint.

    In this new judge carved out area called “Foreclosure Law” allegations rule over the exhibits. Thus, American Citizens are losing their homes because the Plaintiffs say they own and hold the mortgage and note to the loan but the contracts (i.e. the mortgage and note) attached to the complaint say otherwise. This may be a minor point except that a fundamental principle of law is that the Plaintiff must prove the allegations in the complaint. So saying that you own and hold the note must be backed up by evidence. Evidence would be proof that you obtained possession of the note; transmittal receipts; payment receipts; a purchase and sale agreement containing a list of the loans which are being purchased — just for starters. Because these documents do not exist, the Judges are allowing the Plaintiffs to make their own evidence — assignments of mortgage, for example – and then allowing these entities to take our homes with documents created by the Plaintiff’s attorneys. Often the Defendants (American Citizens) are not given any chance to defend, which would require the judges to force the Plaintiffs’ to produce the documents, wire receipts, chain of transfers, and other evidence proving that the Plaintiff owns the loan in question.

    I don’t know about “foreclosure law”. I only know about Florida Law, Florida Procedural Law and the Constitution. What I see is a constant violation of those laws by Judges who are sworn to administer those laws in a fair and even way.”


  64. Anonymous – thank you. I like good discussions and this one get to the heart of several issues.

    amicusman – that is only one decision – here are some more:

    The principle of stare decisis is, of course, critical for our legal system, promoting as it does stability and uniformity in the law. However, it is not an absolute and we must on occasion discard prior decisions when, for example, traditional legal principles fail to do justice in light of modern reality. In these situations, the judiciary of necessity must move cautiously and not discard in a cavalier fashion prior decisions and thereby disrupt the expectations and legal relationships upon which society had previously relied. There are other occasions when a court should “bite the bullet,” such as in the case of an earlier erroneous judicial decision. In this situation the only legally correct and ethically honorable solution is for the Court to admit its error and proceed to rectify it. Perpetuating an error in legal thinking under the guise of stare decisis serves no one well and only undermines the integrity and credibility of the Court. This is true whether the prior decision dealt with a common law rule, a question of statutory construction or an issue of constitutional interpretation. When a prior decision from this Court interprets the Florida Constitution erroneously, the gravity of the error takes on a new and more far reaching dimension because it is this Court’s unique and ultimate responsibility to interpret our organic law in such a way as to render it meaningful and to give effect to the intentions of its framers. Smith v. Dept of Ins., 507 So. 2d 1080 ( Fla. 1987) (Ehrlich, J, concurring in part, dissenting in part)

    ” stare decisis does not command blind allegiance to precedent. ” State v. Gray, 654 So. 2d 552 (Fla. 1995)

    “The doctrine of stare decisis is essential to the respect accorded to the judgments of the Court and to the stability of the law. It is not, however, an inexorable command.” Payne v. Tennessee, 501 U. S. 808, 828 (1991) “Stare decisis considerations carry little weight when an erroneous “governing decisio[n]” has created an “unworkable” legal regime.” Payne, supra, at 827.

    “stare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision” Helvering v. Hallock, 309 U. S. 106, 119 (1940).

    As you can see, the law is not set in stone.

  65. Alina – and amicusman and Storm

    Alina – sorry I go you into this discussion. I am the cause –

    amicusman and Storm – who are you and what do you do? Are you attorneys? Attorneys are just not as confident as you project. Attorneys – and paralegals know the ropes. If what you are saying is valid, we would have massive “malpractice” actions – because the law is the law.

    If what you are saying is valid – attorneys must guarantee they will be successful because the “law is the law.” In fact, we really would not need attorneys at all. We do not even need “due process.” All is already set in stone. No one would have to prove anything. Appeals would be unnecessary – because the law is the law. In fact, we do not even need judges of the law – we could just file complaints with some administrator. And, the law would never change.

    And, we would never have good “movies” about the law – they would be boring – because the law is the law – and no one could EVER question the law.

  66. Alina:

    You’re problem is the same as a lot of others that post, you make outlandish statements, but the LAW clearly proves you’re wrong!

    You stated: ” there are circumstances and jurisdictions where precedents are merely taken as advisement.”

    NOT TRUE, the lower court MUST follow the appellate courts in that jurisdiction.

    Here’s one from a state :

    “It is axiomatic that stare decisis OBLIGATES this court to follow Florida Supreme Court precedent. See Hoffman v. Jones, 280 So. 2d 431, 440 (Fla. 1973) (“We hold that a District Court of Appeal does not have the authority to overrule a decision of the Supreme Court of Florida.”). This OBLIGATION extends to the circuit courts of this state as well, which are further OBLIGATED to follow the decisions of the district courts of appeal “unless and until they are overruled by the supreme court.” See Chapman v. Pinellas County, 423 So. 2d 578, 580 (Fla. 2d DCA 1982). Breed Tech. v. AlliedSignal Inc., 861 So. 2d 1227, 1231 (Fla. 2d DCA 2003) (finding that the trial court erred in disregarding existing case law based on its view that the case “was wrongly decided and therefore not binding on it”).

    Didn’t you also say:

    “SCOTUS decisions are binding on all courts”Here’s the US Spreme Ct.

    “Given the importance of stare decisis and judicial authority to litigants generally and to the resolution of this litigation specifically, the Court should recognize and hold that lower courts are not free to reject circuit precedent. Stare decisis in the lower courts is critical for the public to believe that the courts are impartial and fair.” ASS’N OF AM. PHYSICIANS v. FOOD & DRUG ADMIN., 09-1354 (U.S. 5-4-2010)

  67. Alina

    You are clearly extremely knowledgeable!!!

  68. Storm,

    If by the doctirne of stare decisis you mean to say that courts follow precedent, that is partly true. While courts usually look to see how similar issues have been previously decided, there are circumstances and jurisdictions where precedents are merely taken as advisement,

    The doctrine of stare decisis is debated to this day. There is no uniformity within state courts or even within federal courts.

    The proponents of stare decisis base do so because they believe in uniformity of case law. However, there are plenty of opponents of this doctrine. The opponents point to the fact that stare decisis takes away the judicial ability to interpret legislative intent. In other words, they argue that the doctrine takes away the ability of judges to use their own judgment in rendering opinions.

    While there are jurisdictions that are sticklers to the doctirne, there are just as many jurisdictions that are not.

    Additionally, while SCOTUS decisions are binding on all courts, federal case law is not binding on state courts and vice versa. Having said that, most state courts will look to decisions within their federal jurisidiction when there is no existing case law in their state.

    Furthermore, within states as well as within the federal court system, each jurisdiction has the ability to interpret cases in their own way, This is the reason why you may have one precedent in one jurisdiction and another in another jurisdiction.

    The judicial system in the U.S. is adversarial. Each side will cite their own precedential case law in order to win their argument. It is up to the judge to decide which argument he or she will rely upon in rendering their opinion.

    For example (this is just one example of many), recently SCOTUS decided the Jerman v. Carlisle case. The Jerman case is an FDCPA case arising from a foreclosure. The law firm of Carlisle filed a foreclosure action against Jerman. The foreclosure action was withdrawn when it became known that the mortgage had been paid.

    The case was initially filed in the District Court of Ohio, then appealed to the 6th CoA, and then to SCOTUS. Nowhere along the way was the case dismissed because “foreclosure is not debt collection.” Yet, there is ample precedential federal case law dismissing similar FDCPA cases because “foreclosure is not debt collection.” Had the courts been strict adherants to the doctrine of stare decisis, the case would have been dismissed in the district court. (btw, the case was appealed not by the plaintiff but by the defendant because of the court’s adverse decision)

    Therefore, there is no such thing as “:the law is the law.” The law is fluid and changes – this is the reason for our judicial system.

  69. neidermeyer:


  70. Alina:

    I also said there are three ways to win cases, facts, law and procedure. You just happened to lose or win those other cases based on the facts or procedure.

    You stated: “The “law” is not black and white nor is it set in stone.”

    Well you’d better tell that to the judges, they seem to believe they have to follow some little thing called stare decisis!

    This stuff isn’t brain surgery!

  71. Niedermeyer

    I don’t get it. The mortgages then weren’t securitized. Direct lender, direct borrower. The mortgages wouldn’t have been kept in the bank. The original would be with the homeowner, and the record copy would have been recorded at the county clerk’s office. Would seem to me it would be easy to prove a lost note in the such a case, and the mortgage was still of record. So how did folks get their house for free?

  72. STORM,

    “somehow you lose or misplace the note and mortgage. I fail to make payment as agreed. You take me to court and can’t produce the paperwork. Would it be fair for the court to give me the house “free & clear” because of your failure to “produce the note?” No”

    You need to learn some history ,, actually that is EXACTLY how tens of thousands if not hundreds of thousands of people across the midwest got their farms and houses FREE AND CLEAR in the 1930’s … Bonnie and Clyde , John Dillinger and all the other bank robbers would not only take cash from the banks but also the mortgage deeds/notes and burn them after they had made their escape… Nobody in town dared try to stop or apprehend a bank robber when they just might be giving them a free house or farm.

  73. Alina and Deontos

    Thank you!!!

    And to Storm-

    No hard feelings – I support whatever anyone can do to help the people. The people are all that matter. Alina states it nicely – “There is no such thing as “the law is the law.”
    Knowing this – is very important.

  74. Storm,

    While I agree with some of your points, there are other points that I wholeheartedly disagree. You state, “I see the problem you’re having, the law is the law–Period! You either have it on your side or you don’t; there’s no such thing as a “legal” technicality!”

    I have been a civil litigation trial paralegal for 20 years with approximately 40 trials under my belt. I have seen cases where we thought there was no way we could lose because we had the facts and the law on our side. Yet we lost. There have been other cases, where it was doubtful that we would win, yet we won.

    There is no such thing as “the law is the law.” The “law” is not black and white nor is it set in stone. The law is esoteric and open to a myriad of interpretations – that’s the reason for lawyers. A particular statute or rule can be argued one way in one case and be argued completely differently in another case , and you can win both cases. Ths is the reason why legal arguments are often referred to as legal theories.

    Good litigation attorneys know this. They spend hours and hours bouncing arguments off each other in preparation for hearings or a trial.

    btw, I majored in pre-law (international law) and minored in theater. The reason for the theater minor is that I knew that cases are really won or lost in the way the caseis presented – not the “law.” This theory has never been disproved in any case I have handled in the past 20 years.

  75. Hi Deontos:

    Our methods are not based on having to go to court. Let me give you a hypothectical, Bill Gates drives drunk, runs a red light and cripples someone. You don’t think for a second that case is going to trial do you? It would settle in a heartbeat because no resonable attorney is going to allow that case to go in front of a jury.

    So what does one do? Well for starters, it is necessary and imperative to examine the mortgage transaction for contract problems and to find some wrongdoing on the part of the players initiating the mortgage transaction. Like in the hypothetical above, some sort of tortious conduct subjecting the lender to punitive damages would be nice.

    This stuff is not brain surgery, but what keeps complicating matters is the people throwing mud in clear water with useless theories that keep getting shot down on a daily basis.

    Having a case dismissed without prejudice, where the plaintiff comes back with everything ncessary to foreclose as they do in 99.9% of the cases is NOT WINNING! It is prolonging the agony, and costing the HO money he didn’t have in the first place, because if he did he would be paying his mortgage!

  76. Storm

    I have read your postings with great interest. I will say I don’t necessarily agree with you on many many points. But so what?
    I try to learn from varied perspectives. As you well know there
    are people here financially DYING for lack of genuine help. There are people here in desperate STRAITS. There are people here who will NEVER be able to afford the vital legal representation you so cogently advocate.

    Storm, to wit:

    You said, “…..But, our methods are NOT based on these ridiculous arguments that are bandied about. More importantly, we ALWAYS have successful outcomes for the HO, because we KNOW the law, and more importantly know how to use it! ”

    OK, Storm. If your “METHODS” are being used in a court of law in the last two years and are a matter of public record on PACER; would you please cite them? You would be doing so many people a great
    service! It would be a generous “Pro Bono” gesture and I am sure in the long run would bring “paying clients” your way.

    Await your reply with GREAT interest in learning more from actual cases with “fact patterns” in place and SUCCESSFUL results from your “methods”.

    Thank you.


    “Judges are deciding many foreclosures on legal technicalities – this in uniformity”

    I see the problem you’re having, the law is the law–Period! You either have it on your side or you don’t; there’s no such thing as a “legal” technicality!

    You also made the statement: “We are in new territory, as far as the law, for the whole mortgage crisis. It will take a long time for courts to rectify errors and for a real precedence to set in.”

    This is not anywhere near being correct there are literally thousands of cases regarding these matters going back fifty, a hundred years or more.

    “If you do not want to believe what really goes on in SOME courts.”We know what goes on in EVERY court, we have to because we have our own cases and train attorneys on foreclosure methodologies.

    But, our methods are NOT based on these ridiculous arguments that are bandied about. More importantly, we ALWAYS have successful outcomes for the HO, because we KNOW the law, and more importantly know how to use it!

    All of these securitization, “produce the note” etc., arguments fail 99.9% of the time and just waste the HO”s money.

    If you don’t have a cogent legal argument showing some wrongdoing on the part of anyone of the players regarding your mortgage transaction, you’re just wasting your time and your money 99.9% of the time!

  78. Storm

    Not going to argue with you about this. If you do not want to believe what really goes on in SOME courts – that is your choice. I happen to KNOW differently.

    And, judges are deciding many foreclosures on legal technicalities – this in uniformity. For example, in the process, statute of limitations is addressed and without consideration of extension of SOL for time of the discovery fraud.

    This is not to say that good case law and presentation must be there at the onset. And, it is not say that all judges do not give consumers a fair chance. It is simply to say that the law is interpretative and can be manipulated. We are in new territory, as far as the law, for the whole mortgage crisis. It will take a long time for courts to rectify errors and for a real precedence to set in. In the meantime, the old cliche “Kangaroo Court” stands in many parts of the country. You have to stay one step ahead – or can get crushed before you even know what is happening.

    Also, judicial “shopping” occurs even in big cases. You will see parties requesting change of judge because they want a judge who will be more agreeable to their cause. None of this is new – it has existed for a very long time.


    NO – I have never been personally involved as a defendant in a foreclosure action.

    I became involved in the issues due to a personal situation that allowed me to discover much fraud in mortgage process and spillover to the foreclosure process. I am only posting here because I want to do what I can to help the people. People can take my opinions and information and 1) Use it 2) File it 3) Discard it.

    Separately – there is an interesting article in today’s newspaper (Parade – do not know if nationally published). It is by Lewis Ranieri – the “father” of subprime mortgage securitization. Quote “I used to feel proud,” Ranieri says of his role in pioneering the mortgage-debt market. “I don’t feel that way anymore.”

    Ranieri is now “trying to make a difference with his “Selene Residential Mortgage Opportunity Fund.” “Selene buys distressed mortgages from lenders and then works with the homeowners to get them back on track.” He founded Selene two years ago – “It has purchased thousands of distressed mortgages, often at discounts of 40% to 50%. Once the loans are adjusted to manageable levels and the homeowners are on steadier financial ground, Selene resells them- for a profit.” Ranieri “insists his fund is about more than making money: “I feel badly about what’s happened. I want to be a part of the solution.”


    Happen to know Ranieri has lived in a very modest home for long time. And, maybe his intentions are really to help fix what he created. What Ranieri is describing is, in effect, a “short refinance.” However, Selene is a drop in the bucket since most funds/hedge funds/debt buyers that purchase distressed mortgages do not want to help the borrowers – they exist simply to make a profit.


    Actually, the HO is not really “at the mercy of the judge they get – and how that judge interprets the law,” they’re at the mercy of their facts regarding their mortgage transaction.

    One cannot leave their common sense at the door. Let’s say for the sake of argument, you lend me 500K to buy a house, of course you’re going to want a mortgage to protect your interest.

    Now your house burns down, or somehow you lose or misplace the note and mortgage. I fail to make payment as agreed. You take me to court and can’t produce the paperwork. Would it be fair for the court to give me the house “free & clear” because of your failure to “produce the note?” No, that’s part of the problem these courts must address, remember a foreclosure is an equity proceeding, in other words what’s fair to the parties.

    So, if that’s all you have as a defense to your case, or some stupid securitization argument–you will lose, and as well you should.

    However, if the facts surrounding your mortgage transaction show evidence of wrongdoing by any of the players, now that’s a different story!

    But as a rule the judges ARE ruling pretty much uniformely.

  80. ANON

    Have you ever been personally involved in a foreclosure as a defendant?


  81. All others

    What the heck is going on in California? – One bad decision after another. CA must be in really desperate position.

  82. Storm

    Wish it were true. Unfortunately, the people are at the mercy of the judge they get – and how that judge interprets the law.

    Otherwise, foreclosures would be decided in uniformity – and with discovery granted equally. Part of the reason I advocate government intervention is because foreclosures are not decided ,or processed equally. Even if a pro se victim does not present his/her case with complete cognizance of the law, these pro se victims should be given leeway by the court – simply because they are pro se. This is not happening.

    We need government direction – and have to use what we do have. These are not just simple “tort” claims – these people are losing their homes. And, while the people certainly NEED direction and help from foreclosure experts, if they get an difficult judge – the battle is all that much more difficult..

    Just want to know what to do about this. My suggestion is to provide a site where decisions can be quickly referenced as to state and federal courts. This would help victims know what they are up against from the onset. And let judges know – we are watching.

  83. ANONYMOUS, I don’t disagree with you in the slightest, however if either the law, facts or procedure is on your side, but most importantly the law, you’ll prevail EVERY time–Guaranteed!

    Caveat: That’s assuming you know how to use them.

  84. Hi Storm

    While it is true that knowing the law is critical, this is often not enough. Power, very often, rules. Believe me.

  85. Here is more proof that postings need to be more fully explained to those lacking in legal knowledge.

    Neil posted the above case, out of the case comes this language:

    “Plaintiff seeks SUMMARY JUDGMENT to foreclose upon the property located at
 639 East 91st Street, (Block 4751, Lot 31), in Kings County.”

    Forensic Mortgage Examiners states:

    “First of all, this post is NOT about a “summary judgment”. That’s just something you pulled out of your ass. Quit trying to confuse people!”

    Clearly, there’s a comprehension problem.

    Under the “Burden of Proof” posting, I was the first commenter, I stated:

    “It is well established in order to establish prima facie entitlement to summary judgment in a foreclosure action, a plaintiff ONLY has to submit the mortgage and unpaid note, along with evidence of default.”

    Forensic Mortgage Examiners took umbrage with my comment there as well.

    But, clearly in Judge Saitta’s opinion above he opines almost verbatim what I had posted:

    “In order to establish prima facie entitlement to summary judgment in a foreclosure action, a plaintiff must submit the mortgage and unpaid note, along with evidence of default.”

    Is Judge Saitta trying to confuse people as well, no, the law is the law–period!

    Forensic Mortgage Examiners last comment:

    “He’s shown absolutely nothing but contempt for what Neil has to say and has taught.”

    Not true, I just think Neil needs to take into consideration before he posts, that there are those that are lacking in legal knowledge, and things need to be more fully explained so they don’t go away with misconceptions, as has been exhibited herein.


    That’s where the power comes from–knowing the law!

  87. Storm, once again, you try to spin. EVERYONE who has a computer has access to the law. It’s called “Google”.

    I don’t give a good G-D damn what you “believe”, DON”T EVER CALL ME A LIAR AGAIN! Neil said precisely waht I said he said and since this is his site, HE can correct me if I got something wrong. YOU, don’t get to do anything.

    First of all, this post is NOT about a “summary judgment”. That’s just something you pulled out of your ass. Quit trying to confuse people!

    Anonymous, join with Storm? Why would I ever want to “join” with this idiot? All he ever does it show up and create havoc, confusion and misdirection. He’s shown absolutely nothing but contempt for what Neil has to say and has taught. Join with Storm? Hell will freeze over first.

  88. Storm

    Winning cases is far more than knowing about the law. It is about power. Sadly, that is what is happening.

  89. It’s simply amazing, whenever anyone shoots down a fallacious argument they become a “shill for lenders.” That’s the reason so many attorneys and pro se’s are losing in court, they just blindly follow what some alleged guru, or some legal illiterate tells them without checking out the validity of what was said. And regrettably, most homeowners that come hear don’t have the means to do so, but there is no excuse for the lawyers not checking out.

    Moreover, I don’t believe for a second that Neil said: “a document is regarded as HEARSAY without an actual person having PERSONAL knowledge of the circumstances around that documents creation,” without some caveats. Any first year law student knows that’s baloney, but clearly Forensic Mortgage Examiners believes it.

    As already pointed out, there are plenty of documents that aren’t hearsay. Plus, Evid. R. 803(14), 803(15) or 807 are pretty clear as well.

    Furthermore, your not going to get oral testimony in a motion for summary judgement, which was the subject of the original post. Although a court has discretion to hold a hearing on a motion for SJ, a hearing is not required. See L.S.T., Inc. v. Crow, 49 F.3d 679, 684 n.9 (11th Cir. 1995); Cray Comms. v. Novatel Computer Systems, 33 F.3d 390, 396 (4th Cir. 1994).

    Winning cases aren’t about conjecture or wishful thinking, it’s knowing the law, and being somewhat right doesn’t cut it in the real world!

  90. Everyone

    Stop arguing – you need to join together.


  91. I read a lot of arguing, but I see no action. It seems too me that this is something very critical, and we should have learned about this in High School. It is something to be said about, when you keep the masses, dumb and ignorant. This topic is very complex, and I think it is that way for a reason.

  92. To Jeff,

    I found it on that very site. The case was filed in 2008 and the DEFENDANT to search for is “Sameeh Alderazi”.

    It is ‘index number’ 021739/2008.

  93. I attempted to find this case on the NY State Unified Court System website and was not able to find it under either the Plaintiff or the defendants name – can anyone help here?

  94. Storm, spin, spin, spin, baby. Did you take lessons from the Bush Administration?

    I don’t rely on wiki, as I clearly stated, it was for quick reference and I also suggested people go to their local law library and check out the facts. FACTS not your spin.

    As for you and your time… please… waste it elsewhere, your attempts at “spinning” my posts are pathetic.

  95. Forensic Mortgage Examiners:

    It’s clear now why the law confuses you, you rely on Wikipedia. They even warn: “Users should be aware that not all articles are of encyclopedic quality from the start: they may contain false or debatable information.”

    As already stated: The note, mortgage, powers of attorney, assignments and deeds and other such instruments usually appear in cases involving their enforcement. They clearly would be relevant in that context.. And since such instruments contain directives as opposed to statements of fact, the HEARSAY RULE WOULDN’T APPLY. So, they wouldn’t be “business records!” You clearly don’t even understand what hearsay is!

    You’re just wasting my time to even have to reply to such nonsense.

  96. Storm. Seriously? I understand the law just fine. It’s YOU who are, and continue to be, wrong. I won’t be “speaking” to you again. Kindly return the favor, or better yet, go the hell away. You’re not helping here.

    Alina, thank you.

    For those who doubt me, here’s the wiki (for quick reference)

    Read for yourselves.

    IGNORE “Storm”, the shill for lenders.

  97. Forensic,

    You are correct with regard to the rules of evidence as it pertains to business records. A person with knowledge must authenticate that loan transaction history that is presented as evidence to show you have defaulted. There is plenty of case law that backs this up.

  98. Hey Forensic Mortgage Examiners,

    You stated: “Anything I say is meant solely as information and or entertainment.” Well, we’re entertained by laughter, every time you post something everyone here in our office cracks up at your nitwittery.

    What I posted is not the “lender’s arguments” because they aren’t even smart enough to argue it; It’s just the law. I hate to say this , but most of the problems with trying to defeat the banks is people listen to legal illiterates like you, instead of reading the law, or going to someone who knows it.

    You can object all you want, and you’ll lose, as i’ve already pointed out. Go look it up if you know how, if not I’ll show you. Any attorney with two brain cells to rub together knows that what I posted is factually and legally correct.

    You clearly don’t understand law, that’s why you find the law confusing!

  99. Simple enough…. look up the property record’s of the “council” for Plaintiff

  100. Storm, once agin, you’re presenting the “lenders” argument and it won’t wash here jsut as it doesn’t wash in court.

    “Edgetraderplus” is entirely correct that you must raise the issue of hearsay, but that does not cancel out my point that DOCUMENTS by and in of themselves (without a person who can testify with PERSONAL KNOWLEDGE about that document) is merely a document with no force UNLESS you allow it into the record.

    People, do not allow “Storm” to confuse you.

    If you live anywhere near a law school, go to the law library at it, ask for help, look up the rules of evidence… use it in court if you are ProSe. If you’re attorney is not objecting to documents as hearsay, FIRE THEM! The law library is usually FREE because most law schools take federal money and are required to open their libraries to the public.

  101. Storm, once agin, you’re presenting the “lenders” arguement and it won’t was here jsut as it doesn’t wash in court.

    “Edgetraderplus” is entirely correct that you must raise the issue of hearsay, but that does not cancel out my point that DOCUMENTS by and in of themselves (without a person who can testify with PERSONAL KNOWLEDGE about that document) is merely a document with no force UNLESS you allow it into the record.

    People, do not allow “Storm” to confuse you.

    If you live anywhere near a law school, go to the law library at it, ask for help, look up the rules of evidence… us it’s usually FREE because most law schools take federal money and

  102. Hi everyone,

    Just a couple of points RE- the Kings County case – Don’t we all wish we lived in Kings County, NY?? Sometimes, although we dispute the authority of Trustee/Trust to foreclose, we have to turn the tables and use what THEY give us to counter their argument and, I believe, this is what the judge did in King’s County.

    The Trust named in this suit is CWABS, Inc., Asset Backed Certificates, Series 2007-2

    1) Countrywide d/b/a America’s Wholesale Lender – America’s Wholesale Lender is dissolved and Countrywide acquired by Bank of America Corp. Power of Attorney’s die with corporate dissolution.

    2) The PSA is stated as between the servicer, trustee, and seller – MERS is NOT a part of the PSA.

    3) Most PSA’s allow ONLY the TRUSTEE to grant a Limited Power of Attorney to the servicer (may also be called Attorney in Fact). The originator (in this case – America’s Wholesale Lender) has no authority to grant POA to anyone. In fact, they supposedly sold loans elsewhere – and have no authority for anything – and also are not named in the PSA.

    4) The only reference I could find as to POA or “attorney in fact” in this PSA is:


    In the event that a Seller fails to record an assignment of a MortgageLoan as herein provided within 90 days of notice of an event set forth inclause (I), (II) or (III) of the preceding paragraph, the Master Servicershall prepare and, if required hereunder, file such assignments forrecordation in the appropriate real property or other records office. EachSeller hereby appoints the Master Servicer (and any successor servicerhereunder) as its attorney-in-fact with full power and authority acting in itsstead for the purpose of such preparation, execution and filing.


    And this makes no reference to assignments (or foreclosure) and only recordings. Further, the seller is not America’s Wholesale Lender – continue

    Sponsor and Sellers

    Countrywide Home Loans, Inc. will be the sponsor of the transaction and a seller of a portion of the mortgage loans. Other sellers may include one or more special purpose entities established by Countrywide Financial Corporation or one of its subsidiaries, which acquired the mortgage loans they are selling directly from Countrywide Home Loans, Inc.

    CWABS, INC.,




    Master Servicer






    Dated as of February 1, 2007



    Further, Park Monaco and Park Sienna, sellers along with Countrywide Home Loans, were reported as direct or indirect subsidiaries of Bank of America Corp. in 2009. America’s Wholesale Lender is not listed as a subsidiary.

    See below.

    AS OF 1/31/09

    Park Granada LLC Calabasas, CA
    Park Monaco Inc. Calabasas, CA
    Park Sienna LLC Calabasas, CA


    Thus, quote – “The claim in this case is that the mortgage was assigned by MERS, as the nominee, to the Plaintiff. However Plaintiff submits no evidence that America’s Wholesale Lender authorized MERS to make the assignment. ” –

    – is entirely valid, and the judge did a great job.

    Again, don’t we all wish we lived in King’s County?

    Closely look at any “Limited Power of Attorneys/Attorney in fact” – very important.


  103. Angelo- less than 1% of homeowners engage an attorney, probably 1/10 of 1% of attorneys make any argument re securitization fraud, accounting fraud, forgery, backdating, missing abcd assignments. etc. So foreclosures going to trial is practically zero. For instance, my county here in Pa., there are 168 foreclosures filed per month, with an 18 month backlog for the foreclosure to be heard. No one shows up, and if they do, it is only to beg the judge to stay in their house another month or two. So however bad you think it is, quadruple it for a start.

  104. How could MERS assign the mortgage this late in the game? When the note was transferred from Lender A to Lender B, didn’t that terminate the agency/nominee relationship between lender A and MERS? Are they suggesting that the nominee’s status is transferrable too?

    Is MERS suddenly going to emerge with a postdated separate agency contract with the current noteholder?

  105. I believe there are serious problems with what that ‘WOLF’ firm has on their website.

    MERS is only on my DOT. The defunct lender, AWL is in the DOT and the NOTE. MERS is NOT on the NOTE. Assignments done by the company who bought out the company who used to have the D/B/A? I would not count on it. Likewise, how can MERS assign the NOTE? How did MERS get the power, just as is stated in the original NY case this thread is based on.

    BofA has tried to claim to be the ‘successor in interest’. That sure looks like an attempt to cover up the problem with any valid assignment.

  106. Daniela:

    Thanks for posting, shows how really it is to produce what’s needed which is done 99% of the time. that’s what happens in the real world!

    Like I said, just a stall tactic, but mostly a waste of the HO’s time and money. However, in La LA Land they “move for ‘quiet title’ and take the house free and clear.”

  107. Z
    OOPPPPSSS, I guess that will stop your argument, huh.
    And what are you talking about with regard to the previous owner, when i bought my house, my original lender paid the “previous owner” MONEY for his house, so he cashed a check for $400,000.
    Please go take your meds today, Im scared for you.

  108. “To ensure timely foreclosures and avoid the delays inherent in missing assignments, Freddie Mac described the following best practice:

    “When acquiring new servicing portfolios, address missing mortgage assignment problems and other loan documentation deficiencies through due diligence reviews. Maintain a database of information (contact names and telephone numbers) to help you locate representatives of prior servicers who may need to sign missing assignments.

    Have a dedicated staff member aggressively work missing assignments, payment disputes and other problems that may result in lengthy delays.

    Ask the title company if it will accept evidence of the original note endorsed to Freddie Mac instead of attempting to cure missing assignments.”

  109. What to do when the Chain Breaks

    look what they are doing in California !



  111. zurenarrh:

    Now, for once I see someone who is not just a blind follower and took something for checking; as I ALWAYS suggest. Congrats to you zurenarrh.

    Here are a few for starters:

    Frances Kenny Family Trust v. World Savings Bank, No. C04-03724 WHA, 2005 WL 106792 (N.D.Cal. Jan. 19, 2005) (sanctioning plaintiffs and rejecting their “vapor money” theory).

    Carrington v. Federal Nat’l Mortgage Ass’n, No. 05-cv-73429-DT, 2005 WL 3216226, at 3 (E.D.Mich. Nov. 29, 2005) (finding “fundamentally absurd and obviously frivolous” plaintiff’s claim that the lender unlawfully “created money” through its ledger entries).

    United States v. Schiefen, 926 F.Supp. 877, 880-81 (D.S.D.1995) (rejecting arguments that there was insufficient consideration to secure the promissory note, and that lender had “created money” by means of a bookkeeping entry).

    Rene v. Citibank, 32 F.Supp.2d 539, 544-45 (E.D.N.Y.1999) (rejecting claims that because lender did not have sufficient funds in its vault to make the loan, and merely “transferred some book entries,” the lender had created illegal tender).

    BTW, that Jerome Daly case was a sham. The Justice of the Peace Mahoney wasn’t even a lawyer, which is not that uncommon. Moreover, several Mahoney/Daly decisions, made on exactly the same grounds as Credit River, were declared nullities by the highest court in Minnesota on the dual grounds that they far exceeded Mahoney’s jurisdiction, and that they were simply wrong.

  112. Storm,

    I don’t know of the “vapor money” argument being shot down in court. I do know of it prevailing in court, in the case of Jerome Daly. Can you give us an example of a case where the vapor money argument has been used and shot down? I’m not taunting you, I just want to read it. Because if I’m wrong about the “vapor money,” I want to learn why I’m wrong and change my mind.

  113. Angelo,

    I don’t want to argue with you. You don’t have to believe me. But you asked this question: “Please tell me who then gave the previous homeowner the $$ for the house, it had to come from somewhere, NO??”

    Perhaps the previous homeowner was independently wealthy and paid cash for it. Or gold. Or won it in a raffle. Who knows? But more than likely, the previous owner got the house in the way we are all familiar with–a mortgage/note. If so, then the previous homeowner was actually the creditor but forced to act as the borower.

  114. Angelo, its a known fact that almost 90 to 95% of all cases don’t go to trial be they normal civil disputes or criminal cases. Think of a trial as having 12 in the box, a jury. Before attorneys “rack ’em up”, they need to get their issues prioritized. Every case will turn on one or two issues, not the boat load you bring up. Too many issues confuses the jury and the judge.

    So, what happens in discovery and motion practice, is to distill those issues out. We find out what we can prove and what we can’t prove. Because, in the end, it’s all about what you can prove.

    The judges will hold “hearings” to vent this distillation process. What a “demur” does is challenge the Plaintiff’s pleadings right from the get-go. Are these pleading sufficient to causes of action the defendant can answer? That’s why you’ve got to allege that the bad guys broke a law and what law did they break and how did they break it (what conduct did they do that broke what law).

    A Motion for Summary Judgement is asking the court to rule on whether, at this stage, there’s even enough evidence uncovered in discovery, to even move to trial. There’s got to be trial-able issues for the jury to decide.

    A motion to dismiss is asking the court to dismiss an action because the Plaintiff doesn’t have any law or facts on their side to bother with.

    That’s why it is important to know what you are doing. On top of all that, there are Rules of Civil Procedure and Rules of Court. You’ve got to know all the time lines involved and what the Judge requires. The problem with non-judicial foreclosure is that you never get in front of a judge because of its very nature. It’s designed to stream line the foreclosure process. And that’s where we all get blind-sided.

    And that’s why Neil has been rather cautious. We need to object to the Notice of Default. To do that you have to file a Complaint and serve the defendant’s with a Summons. That makes YOU the Plaintiff and the burden of proof now is on YOU to prove that they have no right to foreclose. It’s a heavy burden but you’ve got it if you are the Plaintiff. And if you don’t plead it right, they’ll get you in a demur. If you manage to survive that, they’ll get you in a Motion to dismiss or a Summary Judgement.

    And that’s why these things are such a bitch to do. And they know it. Bastards.

  115. Angelo:

    You are correct, it’s just more legal babble.

    zurenarrh stated: “the only reason that defense is not likely to prevail is that it is not widely known.” It’s not only widely known, this “vapor money” theory has been shot down by the courts for the last twenty-five years!

  116. Wednesday 19 May 2010

    One does not have to be a lawyer to know the law. More often than not, people lose in court based on not knowing procedure.

    RE hearsay. A plaintiff can submit an assignment signed by Mickey Mouse. If it not not objected to, as hearsay, it is admitted. A copy of the note instead of the original? If the copy is not objected to as hearsay, it is admited as true.

    Hearsay is used all the time. No objection? No problem, at least not for the plaintiff. No timely objection? Too bad for the defendant.

    Due process is properly served: the right to be heard, [without objecting? too bad], and in a meaningful way, [full oportunity to object. Didn’t do it? Waived.] Move on.

    Argue credit was loaned instead of money? Kiss your case good-bye, and I am fully aware of the issue. Argue the lack of authority from the original lender to allow MERS to assign the mortgage? Now you have a case with a good chance of winning, along with a few other pertinent issues one can raise.

  117. Hey, Charlie, please don’t give up or give in. Sometimes you can find people that can help at legal aid or even some of the law schools that have clinics for the students. This is for all of you! You might have to fight this alone because you can’t find an attorney that gets it. BUT, you might find a law student who needs some cash to HELP you do research and write pleadings. Those “kids” have access to professors and teachers who actually ARE lawyers and they might be able to answer your questions.

    I certainly remember my instructors in UCC, Contracts, Real Property, Evidence, Civil Procedure, etc. I know my old law school has many teachers that come from the legal community that still practice. My trial practice teacher was an actual Judge of the Superior Court that later in my career I had the honor to appear before. He was a wonderful teacher and taught me a lot about conducting a trial. Also, I learned a lot from another Judge who taught a criminal procedure seminar and I also later appeared before him on motions to Suppress evidence.

    If you have questions on UCC or anything else, it might be worth it to ask at the local law school if you can talk to one of the professors. You never know. It may be worth a try. But, I would also caution you to find out about this person in advance. You don’t want to discover that the Prof you’ve been talking to is helping the evil bastards!

  118. Willow
    I totally agree with what your saying, but i would really like to know how many foreclosure actually go to trial, I think they are mostly all done with motion practice and never really get into the courtroom. This is the real problem because we never get to cross-examine their affidavits.

    You never told me where did the actual money come from to pay the owner of the house.

  119. More nonsense: “a document is regarded a HEARSAY without an actual person having PERSONAL knowledge of the circumstances around that documents creation.” The note, mortgage, powers of attorney, and deeds and other such instruments usually appear in cases involving their enforcement. They clearly would be relevant in that context.. And since such instruments contain directives as opposed to statements of fact, the hearsay rule wouldn’t apply.

  120. Forensic is correct in that we shouldn’t get too caught up in HOW money is exchanged. Once the Federal Reserve came into being in 1913 the whole game changed, new rules were written and the cash in your pocket became a debt. But, that’s all besides the point.

    The real point here is that the OL must have given to MERS some right, title, interest and/or authority, to MERS to allow them to assign the DOT and the rights and powers of foreclosure and sale to another entity. In this particular case, BoNY was arguing that they have a right to foreclose on the property because MERS had the right to foreclose on the property. They waived their assignment in everybody’s face as if that was enough.

    The court said, no the assignment itself isn’t enough. Without even having to explore the standing issue itself, the court said that BoNY had to show that OL gave MERS the power to foreclose and that they got this power through the assignment from the OL to MERS and from MERS to BoNY. They wanted to see the agency agreement, or the power of attorney or the assignment which SPECIFICALLY stated that MERS has this power to dispose of the property and that MERS SPECIFICALLY had the power to assign that dirty deed to someone else. Without that chain of authority and title, BoNY couldn’t just walk in and foreclose.

    At that point, they didn’t even need to explore legally if the person who executed and signed all this stuff had the authority to do so. That will be left for another day.

    Should BoNY be able to show a chain of authority and assignment then, the defendant, would have to attack the actual person signed their name to all the documents to determine if they had the authority to sign such documents.

    As we’ve all seen, over and over, these people are employees of the lenders or law firms or some mystery entity pretending to be employees of MERS. They sign these things under a color of “corporate resolution” with a $25 MERS stamp. But those courts who get it are asking hard questions. And this court wants to SEE that corporate resolution that actually gives this JANE DOE the authority to sign these documents. They are even asking hard questions about the notary. They want to find out if these signatures that are on these documents were actually SIGNED in front of a REAL notary, as the notary has attested to.

    If the person signing the documents doesn’t exist in reality or is just a drone and really doesn’t have any actual authority, then the document is INADMISSIBLE. Here’s where Forensic is correct. A document is considered hearsay (hearsay is an out-of-court statement being used to prove the matter asserted). But there are EXCEPTIONS to the hearsay rule and those exceptions under the evidence codes require that the document(s) be authenticated. That means they’ve got to bring someone in to testify under oath that the document(s) were made in the ordinary course of business and that the person signing them was duly authorized to sign. You have the right to cross-examine that person to test their credibility, veracity, position and so forth to make sure that what they are testify to is from their personal knowledge and not some BS they are making up.

    Forensic is right. We need to keep our eye on the ball and not get distracted by the side shows in this circus.

  121. Angelo,
    It’s not a conspiracy theory, it’s a conspiracy fact regarding the money being created out of thin air (or more accurately, a borrower’s promise to pay). I agree that such a defense is not likely to prevail in a foreclosure defense suit, which is why I am personally not using the defense. But the only reason that defense is not likely to prevail is that it is not widely known and is completely antithetical to what we’ve been taught for the majority of our lives. I get that; I know it seems incredible.

    But the fraudulent nature of our money supply does dovetail with mortgage meltdown issues like derivatives, which are said to total in excess of 1 quadrllion dollars–all in “money” that is completely fake. So while I agree with you that the fake money argument isn’t the best defense in court, it does help people understand the nature of the beast they are facing and why they shouldn’t feel at all guilty or shameful for not paying their mortgages. And that’s because WE are the creditors; we were not “lent” anything.

  122. i have a question for all of you, what happens if one runs out of money or simply cant find an attorney that gets it and decides to move out of the house because it has been already foreclosed on? can one still come back and fight these bastards later on based on ALL on hand evidence of non proper assignments and other stuff that is obviously fraud, i know i have a hell of a case, however finding an attorney that actual gets it, it another matter. what are my chances of wining against the rat bastard bank(gang)sters?

  123. Z
    Have you seen the documentary that says, 9/11 was not real?
    Please tell me who then gave the previous homeowner the $$ for the house, it had to come from somewhere, NO??
    all these conspiracy thoeries are just that, theories!!
    Let talk about real ways to fight these crooks, not make believe.

  124. Also, as Neil points out in his seminars, which I have been fortunate enough to attend, a document is regarded a HEARSAY without an actual person having PERSONAL knowledge of the circumstances around that documents creation.

    You can request to depose the people who sign these documents and you just might get someone who says “Oh, I don’t know if that’s right or wrong, I rely upon LPS (or any other “document production” company) to do their own Quality Control and I sign what they give me” which would mean that there’s no way they had personal knowledge and no way that document should be admittted as evidence.

    *Disclaimer* I am not an attorney. Anything I say is meant solely as information and or entertainment and not legal advice. You should consult competent local counsel in regards to all legal matters.

  125. Angelo,
    I know it’s hard to swallow, but that doesn’t make it any less true. Read “A Primer on Money,” prepared by Wright Patman for the House Committe on Banking and Currency.

    If you go to scribd and read the section “Who issues checkbook money?” on pages 23-24 of the scribd document, you will see what we are talking about.


  126. Judy, of course it hasn’t stopped the “purported” assignment. They are not obeying the law, which is what the judge in this case insisted they DO!

    Just because it’s been”assigned” doesn’t mean you have to accept the “assignment” as true. Contest their ability to “assign” anything. This judge has just handed you a very powerful argument that they in fact, have “assigned” something they had no business “assigning” as they have not provided proof that they have the actual authority to do so!

    You guys keep forgetting that many many many people are not even fighting their foreclosures. So, they are going after what Neil calls “low hanging fruit”.

    These lenders think if they can get thousands of homeowners to leave their houses based upon a fraudulent document then, why not?

    That doesn’t mean YOU should be one of those homeowners.

  127. All of you are getting caught up in the wrong thing.

    It’s NOT debt/credit on the books. In this case (and many others) it’s this; did an A-B-C chain of title transfer occur? If so, did B (MERS as nominee) have the authority FROM “A” to assign anything to “C”? Lacking specific language from “A” to transfer THEIR property, then “B”


    dispose of “A”s assets.

    Which is what they did when they “assigned” to “C”.

    You can insert any originating lender’s name into the “A” slot and any bank’s/trust/lender’s name into the “C” slot. MERS will always be “B” if they are the nominee.

    While there are those who decry the expense, I think it’s a red herring to think that money is thrown away, think of this: if the orignating lender is out of business, then a Quiet Title action coupled with this ruling would most likely be awarded. Unless the lawsuits to get the homeowner to a free and clear house costs more than the original note then the attorney’s fees are WELL SPENT.

  128. Ok wait a second, so when you purchased the house and they cut a check to the person who you bought it from, it wasnt real $$? WHAT! what are you guys smoking, of course they have to account for the recievable as a credit and the check a debit, thats accounting 101, but this notion of smoebody never really lent you money is a little hard to swallow.

    And I think a Judge will really not take your case seriously even if you have some real issues. Just MHO

  129. To ‘Forensic Mortgage Examiners’: CountryWide being defunct has not stopped the production of assignments in the name of AWL. I have seen at least one account of it being done with a document dated after BofA bought CW.

    It would likely have either have been a BofA or a BoNY employee who signed.

  130. Angelo,
    What Willow is saying is correct. Our system is set up in such a way that people are forced to finance their own indebtedness. That is to say, you give a bank a promissory note for $50K and the bank issues a $50K check. Neither the note nor the check are actual money, i.e. cash. But in the bank’s books, the $50K check goes on the debit side of the ledger and is balanced out by the $50K note on the credit side.

    Again, no cash or anything with inherent value (i.e., precious metals) changes hands in this transaction. It’s just plain old copy paper (the note) and digital data (the “check”). So the bank hasn’t actually lent ANYTHING, and that is borne out by the fact that the bank’s books are balanced as mentioned above.

    However, we are all supposed to ACT like we’ve received money and the bank is supposed to ACT like it has lent money. That’s been drummed into our heads since our heads were old enough to be trained to dance to the beat of that drum.

    But it goes further than that–the note is actually deposited into an account within itself, as though it were a check from the borrower. So the bank’s assets have actually increased by the amount of the borrower’s note. This should also mean that the bank’s liabilities have increased by the same amount.

    In other words, then, a promissory note is literally a check from a borrower to a bank. At the very least, the bank is allowed to treat it as such, meaning that the borrower is actually the creditor of the bank. But our nonsense system turns that logic on its head and says that the bank is the creditor and that the borrower has to pay money–i.e., interest–above and beyond the note/check the borrower has already given the bank. In other words, so-called borrowers are required to pay the bank for the “privilege” of giving money to the bank!

    It is a completely ridiculous situation and would be laughable if it weren’t so completely devastating to the average person, saddling them with debt on money created by the average person in the first place.

    One more thing–this is no secret. The Federal Reserve itself has spelled all this out in numerous publications. Here’s a link that explains what Willow said and what I’m trying to say:


  131. I have a question of WHETHER it is even POSSIBLE for Bank of Fraudsters to get the necessary document created without having another forged document.

    “America’s Wholesale Lender” was a ‘DBA’ of CountryWide. When CountryWide was purchased, does this give the new owner the right to execute new documents in the name of the acquired company’s former ‘DBA’ entity? I don’t know that CW even properly registered the name when they were using it.

    Can new documents continue to be produced in the name of ‘AWL’ and have it be recognized as being produced by the same original entity?

  132. willow
    Am i missing something about your train of thought, you sign a prommisory note after they lend you money, NO??
    In my honest opinion that will not fly in any court of law. They will laugh you out of the court room.

  133. Willow,
    I am also in Portland … can you recommend a local, aggressive attorney? PLEASE contact me at
    Thank you~

  134. Apparently, all BONY’s attorney showed was that the borrower (defendant) acknowledged that the OL could, if they wanted to, assign the mortgage to MERS as their nominee (or agent) in this case in order to record the DOT. In other words, the OL didn’t record it themselves and didn’t put their own name on the DOT, it elected or assigned MERS with that task.

    BONY would have to show, it seems, that the OL intended for MERS to be able to foreclose and sell and also that they authorized MERS to assign that power to someone else, namely, BONY. So, if MERS had the right to foreclose so does BONY. But, that power to foreclose had to be authorized by someone who had the authority to assign such rights and powers from the OL all the way through to BONY…and they didn’t do that.

    So, what are we left with? That BONY gets another shot at showing a chain of authorizations from the OL to them. I think that’s what everyone here is cranky over (and with damn good reason because the poor HO is paying for an attorney’s time and skill to get this blasted case resolved and they are going to have to go back to court when BONY gets their documents photo shopped correctly). What a pain in the ass for the HO.

    Sometimes I think what the HO should show is that he gave the OL a promissory note (which acts like a check because it’s a NI) and that the OL recorded it as an asset on his books, then lent him his own money back with interest to buy the house. In other words, the borrower gave the money to himself, anyway, through the OL. Meanwhile, the OL went and blew it by gambling at the Wall Street Casino and now the sore loser lender wants the property because he needs more money to feed his gambling addiction.

    It just makes you crazy because it is all non-sense on so many levels.

  135. Willow, you are correct.

    Essentially, the court has said that MERS has presented no proof that they were authorized to make any assignment, because they did not present proof that the Original Lender gave MERS the ability to “give away” (my paraphrase) the Original Lender’s property.

    Without that authority and absent presentantion of proof, MERS acted improperly and the case is dismissed. They DO have the right (ability) to represent the case, but without committing fraud, they are not likely to be able to present evidence of that authority and so are barred from presenting the case again against this particular homeowner.

    If you have a similar situation) and most people do, then this ruling should make you very happy. (Especially if you’re in New York!)

  136. It’s NOT a “stall tactic”.

    America’s Wholesale Lender (a defunct arm of Countrywide – now BofA) is out of business.

    There’s no way the plaintiff can acquire the court mandated paperwork (absent outright forgery, which I wouldn’t put past them).

    The defendant now needs to move for “quiet title” and take the house free and clear.

  137. storm
    Thats true, but if the original lender is no longer around or it becomes problematic to do so they might get time barred as they only have 30-60 days to fix the problems.

  138. Okay, so let me get this straight, if I can. The Plaintiff in the case was BONY and not the OL, American Wholesale Lenders. The OL was not in court.

    The BONY claimed that they can foreclose because MERS said they could. The Judge said, “No you can not foreclose because you have not shown that MERS was even authorized to make the assignment to you from the OL.

    BONY would have to prove by documents that the OL assigned or authorized by an agency agreement or by some power of attorney, that MERS has the right to foreclose and sell the property; that the person who executed the Assignment, or agency agreement or power of atty from the OL to MERS was authorized to do so; that MERS had the right to assign the mortgage to BONY per the OL’s authorization; and that the person who executed the assignment from MERS to BONY was authorized to do so.

    So, at this point, as far as this decision indicates, BONY does not have the right, title or interest in the property to foreclose and sell because they have not established a chain of title to do so.

    Am I right or wrong?

  139. Great stall tactic, but was it worth all of the money spent by the homeowner, when the court allowed the plaintiff bank to get their “proof of authority” and come back for their foreclosure?

  140. Dave
    No it was judge Saitta, from kings county. Kings county judges really get it!

  141. Might have been. Either way, I rather suspect Judge Schack is having an influence on his colleagues’ thinking and approach to these matters.

  142. Is this Judge Schack’s court? It wasn’t listed.

  143. Yep.


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