No Mediation Without True Lender

EDITOR’S NOTE: It wasn’t so long ago that I had to practically pulled teeth to get her attorneys to agree with the proposition that nearly all of the foreclosures were fake.  Matt Wiedner seems to have his finger on the pulse of what is really happening. I think the most important feature of this article is that mediation is a farce unless the real parties in interest are in the room. It’s really the same issue as we encounter in litigation: STANDING. The fact remains that the great mortgage sting leading to the great recession is still very much in progress. It starts with the servicing companies along with other intermediaries that have no financial interest in either the loan or any mortgage bond purporting to claim ownership of the loan. They have a vested interest in making certain that the home goes all the way through the process of foreclosure because for them that is where the money is. By the time they are done with the foreclosure process they have imposed so many fees, costs and surcharges that there is nothing left to pay the investors who advanced money into a pool from which some mortgages were funded.


When these intermediaries intervene in the process of foreclosure, modification, short sale, or mediation they are merely creating the appearance of good faith when in fact they have no business being involved at all. They continue to waste the time of everyone involved in the process. They are successful in creating the illusion that they are the right people to conduct negotiations or litigation. In fact, their only interest lies in obstructing the process long enough to impose fees that eliminate any value of the loan and eliminate any possibility  of a conclusion in which the homeowner is able to achieve a reasonable settlement with the real lender.


Investors, borrowers, and attorneys should aggressively act to enforce the obligation of the party alleging that it is the lender to prove that it is in fact the lender. You can start with a simple question to the company that services the mortgage. To whom have you been paying the borrower’s monthly loan payments? Then ask for proof. Chances are they will do almost anything to avoid answering that question. It is is a simple question. I think that there are many judges that would find it difficult to understand why any “lender” or servicing entity objected to answering that question. It goes to the heart of jurisdiction and to the heart of the illusion which thus far has been successfully created in the minds of most judges and many lawyers.

Matt Weidner Blog
Today, July 28, 2010, 2 hours ago

Fight The Mortgage Servicers Who Bring These Foreclosure Actions
Today, July 28, 2010, 2 hours ago | Matthew D. Weidner, Esq.
The vast majority of foreclosure cases are brought not by the real
parties that have any interest in the outcome of the litigation, but
by nominal, shell Plaintiffs that have been propped up by the
investors or the real parties in interest to pursue the litigation.
Because the vast majority of foreclosures go undefended, this
important point is missed in the vast majority of cases.  While it may
be missed in cases, the consequences of this phenomena are profound
and broad reaching.

The failure to identify what parties are really at risk in litigation
prevents courts, policy makers, investors and the general public from
knowing who stands to win or lose in litigation.  Concealing the
identity of the real party in interest allows those who made bad
decisions to shirk their responsibility in the litigation, a fact that
is more important when their conduct could very well make them
complicit in creating the situation that led to the litigation.  On a
very practical level, litigation pursued by servicers probably
prohibits effective settlement or mediation discussions because they
lack the risk of loss that forces effective resolutions.  The
consequences of this are played out hundreds of thousands of times a
day as homeowners try futilely to negotiate a short sale or
modification with the lender.  This is especially important now that
circuits across the state are rolling out mediation programs.

FORECLOSURE MEDIATION IS NOT GOING TO WORK UNLESS THE REAL PARTIES IN
INTEREST ARE IN THE COURTROOM

The fact that mediations are not going to work until we have real
players at the table will be borne out in the months to come.
Certainly borrowers will share some of the blame for not actively
participating in the mediation and settlement discussions, but at the
end of the day, another bank owned property is a loss for all parties
involved….there are too many of these properties already.

The key to addressing this problem is to first attack the Plaintiff’s
capacity.  The first part of the attack is the fact that most
Plaintiffs are never properly identified in the lawsuit.  Courts must
begin to demand knowing just exactly where this company comes from
that is bringing this action.  Courts must begin to ask, “Who am I
about to grant this $250,000 judgment to?”  then not let the case
proceed until they have a very clear answer to that question.

Our State Division of Corporations or Department of Financial Services
must begin to demand registration of all these nominal and real
plaintiffs.  Specific laws are already on the books that demand
registration of foreign corporations and of all trusts, but these
registration requirements are being totally ignored.

OUR STATE IS IGNORING MILLIONS OF DOLLARS IN TAX REVENUE AND FAILING
TO PROVIDE APPROPRIATE REGULATORY OVERSIGHT BY IGNORING THESE LAWS.

Once the nominal plaintiff is properly identified, it’s time to demand
proof that they have the authority to maintain the litigation on
behalf of the real party in interest.  This too is addressed by the
capacity argument, but you must also be thinking about this in the
context of preparing discovery, because the proof demanded will come
in the form of the Plaintiffs responses to the discovery requests.

I have previously attached my capacity Motion to Dismiss and I can
tell you that when the facts support this Motion, it is nearly
impossible for the Plaintiffs to wiggle their way around.  Even the
most bank-friendly judge will have problems denying this Motion and if
the motion is denied, it sets up a very significant summary judgment
or appeal issue. I’m going to work on this motion again to put some
more recent circuit court cases into it, but as I’ve stated before…

CAPACITY IS A CASE KILLER!

Keep up the good fight!


Jake Naumer  Union Capital
Licensed Financial Advisor
3187 Morgan Ford
St Louis Missouri 63116
314 961 7600
Fax Voice Mail 314 754 9086

19 Responses

  1. Türkh Web Tasarım,

    Well said. Guess I am back.

  2. Without jurisdiction, the case is VOID, and that means
    no arguing about who/what the trustee is doing, no PSA arguments. Best of all, judges clearly understand jurisdiction.

  3. Saturday 31 July 2010

    CEA: You either get it, or you don’t.

    I already delineated what SMJ is. It enables the judge to hear a specific type of case. The case you cite goes to jurisdictional standing of the plaintiff bringing the case. No standing, no jurisdiction. Standing has nothing to do with a judge having the ability to hear the specific type of case, [subject matter jurisdiction], a plaintiff with no standing, lack of jurisdiction] may try to bring before the court.

    The difference remains large, and challenging the wrong one will always fail.

  4. Edgetraderplus, No doubt, there is a difference between subject matter jurisdiction (SMJ) and jurisdiction. The huge mistake is the costly notion that “judges always have SMJ”

    The point and fact is that courts do NOT HAVE SMJ. Plaintiffs have to INVOKE SMJ through SUFFICIENCY OF PLEADINGS when filing a complaint.

    Its called checks and balances, designed to keep predators, presenting nothing other than hot air as proof of claim, out of busy court rooms. Pretender lenders, as Neil has shown, are fake and so is their questionably obtained ‘evidence’. It is this predatory transgression which is COSTLY, costing millions of people their homes. Anything else is misleading.

    But I don’t want anyone to ‘believe’ me. What about if I state case law so that everyone can judge cause v effect for themselves? As an example, will Connecticut do?

    From Webster Bank v. Zak, 259 Conn. 766, 774, 792 A.2d 66 (2002):
    We begin our analysis by underscoring that a party must have standing to assert a claim in order for the court to have subject matter jurisdiction over the claim. Ramos v. Vernon, 254 Conn. 799, 808, 761 A.2d 705 (2000). ‘‘Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy.’’ Ganim v. Smith & Wesson Corp., 258 Conn. 313, 347, 780 A.2d 98 (2001).

    Based on case law the MESSAGE IS CLEAR:
    From the START, insist on enforcement of the basic non-discretionary DUTY of courts to dismiss pretender lender’s complaints for lack of subject matter jurisdiction (SMJ).

  5. All these facts are true mortgage servicers are owned by wall street or major banks and they were over compesated to modify loans. Its amazing how much money they were given. The real question is why are the law firms keeping these homes under delaware llc s stern did not get rich from filling motions or william foley. The monies from these homes is what the huge profit come from. Lets track the mony trail just on one to show the courts.

  6. Thursday 29 July 2010

    Be very careful here, CEA. What you say can be misleading and costly in results. Quote:

    > “It is satisfying to know that the issue of [subject matter]
    > jurisdiction is finally being addressed at the national level.”

    Judges always have subject matter jurisdiction to hear a specific
    TYPE OF CASE…i.e. foreclosure. Judges have jurisdiction to HEAR that KIND of case.

    What is the stake in the heart of any case is LACK OF JURISDICTION. In a lack of jurisdiction, the judge cannot make any ruling at all, and any judgement is VOID AB INITIO…void from the begining.

    Subject matter jurisdiction and jurisdiction are two entirely different issues. Do not confuse them, anyone.

  7. Excellent post! The title could also be:
    “We do not negotiate with financial terrorists”

    It is satisfying to know that the issue of [subject matter] jurisdiction is finally being addressed at the national level. Thank you Neil & Matt. RichardCornforth.com and also VoidJudgments.com taught us long ago that most cases in the courts today result in void judgments.

    The emphasis is on “[COMPETENT] COURT OF COMPETENT JURISDICTION”.

    Competent in the subject matter?…
    …Credit default swaps? Delaware Trusts which are nothing but LLC’s? Pass Through Certificate Series? Disharmonious Conjunctions? Non-performing-asset insurance? Guarantors v Grantors? Ownership of Original Notes? Basic Rules of Evidence?
    Which judges are competent in the subject matter before them?
    Which judges have not been diverted into a pre-programmed mindset of “You got the money, didn’t you”, thereby severely jeopardizing the international reputation of the US judiciary?

    Competent jurisdiction?
    No pretender lender (or 3rd party interloper) has ever proved up their claim through sufficiency of pleadings in order to invoke the jurisdiction of the court, because they can’t. If they try, it’s evidence for responsible law enforcement (BTW, where are they?)

    Conclusion:
    No foreclosure or ‘debt-buyer-breach-of-contract’ judgment was ever carried out by a [competent] court of competent jurisdiction. They are void and can be challenged anytime. Therefore, the statements on judges’ orders in favor of 3rd party interlopers allows the sting artists to get away with their cunning obfuscations:

    “…the Court having reviewed the file, [attentively] heard evidence and argument of counsel, and being otherwise fully advised, it is adjudged that…”

    This alleged perjury and not the interlopers’ lies is the catalyst in the crimes against the global economy as exposed on this blog and elsewhere.

    The good news is that the claims against all predicate actors who procured the void judgment are not time barred. This gives tremendous class action opportunities to responsible consumer attorneys! But first, we all have to do our part in controlling the judges by sending them the message that they either follow the rules or lose their tax funded pension.

  8. Thank you Edgetraderplus. This is what I found: http://mattweidnerlaw.com/blog/wp-content/uploads/2010/04/capacitywasylik.pdf

  9. i serached the Matt W. blog and could not find the Motion to dimsiss for capcity. If someone finds it please post. thanks

  10. Wait a minute, here. If courts are not enforcing discovery, it often stems from the fact that defenders are simply not demanding it. For those who are demanding discovery, it is a matter of being insistent with the judge, using case cites to back up the demands.

    Even reluctant judges cannot ignore properly demanded discovery, coupled with objections, and one of those objections includes judicial bias in favor of the plaintiff that denies the right to be heard in a meaningful way, aka due process.

  11. ANONYMOUS,

    You are absolutely correct when you state that courts are not enforcing discovery. The servicers have become extremely adept artful dodgers.

    Most servicers have been fleecing homeowners for almost 2 decades with impunity. Although there have been FTC and DOJ suits against some servicers, they were able to get away with their shenanigans after a slap on the wrist. It’s busines as usual for these guys. They have the lying, cheating, and stealing down to a science. They are very aware that the papers they are presenting in court are fabricated, but they are arrogant enough and confident enough to know that judges will not question them.

    One thing I would like to emhasize is that the most important tool in a homeowner’s arsenal is the discovery of fraud in the origination of the loan. That is how you get the servicer to the bargaining table.

  12. TO MATT WEIDNER WHO IS LIKE A NEIL GARFIELD PROTEGE.

    I HAVE BEEN DEMANDING TO SEE THE TRUE OWNERS OF THE LOAN FOR OVER A YEAR IN CALIFORNIA, TO DEAF EARS. ALL THE POWER TO YOU MATT WEIDNER.

    DO SOME RALLIES IN YOUR COMMUNITY JUST LIKE YOU DID TO THE CAPITAL OF FLORIDA A FEW MONTHS AGO.

    BUT DO IT IN FRONT OF THE MAYORS HOUSE AND THE JUDGES ETC….HOUSE BASED ON THE “BELL CITY” INCIDENT YOU WILL GET MORE ACCOMPLISHED THAN YOU HAVE AND YOU HAVE GOTTEN ALOT OF ACCOMPLISHMENTS.

    BECAUSE THE DAMAGE THE BANKS DID WAS TO OUR COMMUNITIES NOT ONLY US AS INDIVIDUALS.

    MAKE IT A COMMUNITY ISSUE, DEMAND THAT THE BANKS CANNOT DO BUSINESS IN YOUR COMMUNITY UNTIL THEY FIX THE WRONGS. TREAT THEM LIKE DRUG DEALERS ETC…….

    NEVER AGAIN

  13. Thursday 29 July 2010

    Sirina:

    You can find it on his blog, http://www.mattweidnerlaw.com/blog, back in May, I believe.

  14. Does anyone have a copy of Matt Weidner’s Motion to Dismiss or where to find a copy?

  15. TO DEUTCHE BANK BANK OF AMERICA BANK OF WHATEVER.

    WE ARE RELENTLESS WE WILL GET OUR PROPERTIES BACK IF IT TAKES MY GREAT GRAND CHILDREN TO GET IT AND THEIR CHILDREN..

    http://www.latimes.com/news/custom/topofthetimes/national/la-et-nazi-art-20100729,0,4515117.story

    TO THE CORRUPT JUDGES AND FORECLOSURE MILLS ATTORNEY HISTORY IS NOT ON YOUR SIDE

    NEVER AGAIN.

  16. David C Breidenbach

    The senior tranches have largely already been paid and closed. Since the junior tranches are paid only if there is left over current payment – after the senior tranches have been paid. Thus, junior tranches are paid nothing (this is evident in investor lawsuits – damages do not deduct foreclosure recovery). If anything remains today from the toxic mortgage loan securitizations, it is the residual tranche – which has likely been resecurized into a separate Trust – that is not a current pass-through security – but, rather, synthetically derived from a dismantled original Trust structure. .

  17. Thursday 29 July 2010

    Mr Weidner gets it entirely. Go for the jugular! Get to the heart of the matter. Make the plaintiff PROVE jurisdiction. He also beings up capacity, making the challenge even more formidable.

    Without jurisdiction, the case is VOID, and that means
    no arguing about who/what the trustee is doing, no PSA arguments. Best of all, judges clearly understand jurisdiction.

    This is not to suggest one should not still be able to fight other arguments, but learing to fight THIS fight the best is to anyone’s benefit who is facing foreclosure.

    It is as close to a silver bullet as one can find.

  18. This is a very important post. I have been aware of cases where the defendant is sent to mediation without first identifying the real creditor. Some here have stated that the real party issue is not relevant because eventually the plaintiff will get his “ducks in a row” and proceed with the foreclosure under the real party name.

    Not identifying the real party in court is not only fraud but also deprives the defendant of direct and timely negotiation with the real party true creditor. Thus, damages accrue to the defendant.

    Although real party, in my opinion, is the single most important issue, I am not seeing courts enforce discovery to ascertain the real party. Once it can be established that the real party is not before the court, all the produced documents are also subject to question. I have seen cases where the real party is at issue – but most of the cases simply state that the plaintiff does not have standing – without attempting to demonstrate why the plaintiff is not the real party.

    Since foreclosure cases most often are indicative of securitization, knowing the chain of sale/assignment in a securitization is crucial. Also, knowing what the “investors” are entitled to is important. Again, while I think this post is very important – i disagree with “there is nothing left to pay the investors who advanced money into a pool from which some mortgages were funded” 1) any investors who indirectly funded a “pool” – did not directly fund mortgages and 2) tranche “investors” – for which there a limited number of tranches – were only entitled to current income pass-through – not foreclosure recovery (which is not current and not passed on to pass-through security investors. (However, the residual tranche is not a pass-through – and is usually held by the servicer – who may -or may not be the current creditor). 3) the Trust is likely dissolved.

    The fact that mediation is being conducted without identification of the current creditor – in whose name any modification must be contracted – is simply additional fraud upon the borrower defendant. This fraud is akin to “loan modification” scams that are being currently investigated by some state Department of Justices.

    How and why the courts are allowing this to happen – and actually promoting it – is beyond me.

  19. “By the time they are done with the foreclosure process they have imposed so many fees, costs and surcharges that there is nothing left to pay the investors who advanced money into a pool from which some mortgages were funded” . this is certainly largely true, but for jumbos the costs of processing are not much higher than the lower value homes–but net foreclosure proceeds are higher. The net proceeds are deposited into the “collection account” which is held indefinitely for years’ later payout to seniors. In the meantime the servicer is clearly entitled to retain the income as part of the servicer “compensation” –this float is critical to servicers pricing when they purchased the servicing “rights”. The proceeds are invested at the discretion of the servicer also–this is a benefit. People keep referring to authority by the servicers to modify. But how would the servicer have authority to cut off payments to junior investors–especially principal? Would someone please refer me to a trust example where the servicer has this authority and how he determines who takes the hit among the investors? I need a trust name and/or SEC URL–and reference to the section in the servicing agreement. I am investigating servicer tension between modification and increasing the funds he holds to receive the revenue stream.

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