STRATEGIES PLEADINGS AND PROOF TO BE DISCUSSED AT SEMINAR THIS WEEKEND – REQUIRED READING FOR ATTENDEES

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Taking a variety of discussions, pleadings and answer to questions that have come up in recent weeks, our discussion on Saturday and Sunday will deal with notice letters to various parties, putting carriers on notice, and causes of action for damages, for injunctive relief — mandatory and prohibitive, suits against private and public entities etc. This is a partial compilation of the issues. Participants should read this a few times and become familiar with it because there are going to be questions directed at the lawyers concerning these issues as they relate to both judicial and non-judicial states.

  1. Check STATE statutes on ID theft. If there is an actual statute, track it and plead it.
  2. Check Federal Statutes for ID Theft, track and plead the statute and then when you plead state facts that fit within the description of the offending act.
  3. Make sure you have a private right of action for damages or injunction (injunction is usually easier) for ID theft. Your allegation is something along the lines that (a) they took your private information under false pretenses without disclosure the party to whom you were directing your personal information for the purpose of enabling an illegal PONZI scheme ( or illegal scheme involving fraud and deception) (b) they are still doing it because they pretending to have your loan in an “asset-backed pool” when in fact the loan is not owned by the “asset backed pool” and even the requirements were met for proper documentation, you never consented to that arrangement where your personal financial and identifying information would be shared. Giving out your name, and social security number probably violates social security law, for starters.
  4. Breach of Trust: Trust was procured under false pretenses — fraud in the inducement and fraud in the execution. You thought you were dealing with X who was the lender, when you were dealing with Y who was the investment banker’s aggregator for the Lender Z (investor-lender). Any interest they claim by definition creates a constructive trust of the rights stated in the Deed of Trust, wherein the beneficiaries under the common law constructive trust are BOTH the homeowner-borrower and the undisclosed real lender. The actions taken under the constructive trust were all unauthorized and undertaken without your consent or knowledge. The actions include substitution of trustee which was unauthorized. Plead affirmatively that the trustee is the original trustee, along with quiet title, but deny that the Trustee has the Power of Sale because the Power of Sale requires thee existence of a creditor in the document (see statute) but the Deed of Trust lacks such designation of creditor. (In Judicial states, the Mortgage deed lacks the creditor as mortgagee).
  5. RESCISSION: LETTER OF RESCISSION IS STRONGLY ADVISED UNDER COMMON LAW FRAUD, AND BREACH OF common law constructive TRUST, breach of fiduciary duties etc. In other words avoid saying that the second trustee or even the first trustee ever actually received trustee powers because the signature of the borrower was procured by fraud and in violation of the Federal Truth in Lending and  California Deceptive Lending Statutes.
  6. POTENTIAL STRATEGY SUGGESTED BY TRUST LAWYER: DO TRANSFER AND ASSIGNMENT OF CLAIMS AND RIGHTS TO FAMILY TRUST (MIGHT HAVE NEGATIVE EFFECT ON YOUR ABILITY TO USE BKR). HAVE FAMILY TRUST FILE THE SUIT FOR QUIET TITLE — NAMING YOU AS THE DEFENDANT ALONG WITH THE ORIGINATING LENDER ON THE ORIGINATING LOAN DOCUMENTS. NOBODY ELSE.
  7. YOUR POSITION IS THAT XYZ ( e.g. CENTRAL PACIFIC MORTGAGE) WAS A MORTGAGE BROKER WHO WITHOUT YOUR KNOWLEDGE OR CONSENT AND WITHOUT DISCLOSURE REQURIED UNDER TILA PRETENDED TO BE A LENDER WHEN IN FACT IT WAS ONLY A BROKER. The fraud was continued and memorialized on the closing documents which show XYZ as the originating lender, and shows various fees that would ordinarily appear on a settlement statement for a loan closing. There was no mention of ABC (e.g. New Century) who was obviously hiding behind the veil of deceptive acts and fraudulent and misleading statements all of which were intentional made to mislead the borrower and did mislead the borrower who reasonably relied upon the statements and representations made at and contemporaneously with the sham closing.  The party posing as mortgage broker DEF (e.g. First Priority Financial) and who owed a duty of honesty and good faith to the borrower, falsely put in the name of a “lender” (Ocwen) that was in fact never intended to be the lender and in fact was not the lender or creditor in the transaction regardless of whether one examines the money trail or the document trail. In so doing a credit report inquiry was added to the borrower’s credit report that caused a reduction in the credit score of the borrower.
  8. Slander of Title, negligence, constructive trust, fraud in the inducement and fraud in the execution, and breach of fiduciary duties by title and escrow agent: (SEND NOTICE LETTERS TO APPROPRIATE PARTIES, ATTACH ALL NOTICE LETTERS TO COMPLAINT) for reasons not known to the borrower, the “lender” as designated by the actual mortgage broker and the sham mortgage broker who posed as “lender” in a fee based fraudulent transaction as described above, was the same party that submitted a fraudulent payoff statement claiming to the the prior creditor and lender when in fact this was a blatant misrepresentation. Despite the obvious error or fraud, the Title Company, acting as title and escrow and closing agent, paid off (e.g.) Ocwen who had no interest in either loan and had neither been the lender nor the successor to any lender under either loan, past or present.  Ocwen currently holds as constructive or resulting trustee funds for which it has no legal basis for  having received nor does Ocwen have any basis for keeping those funds. Borrower has submitted a demand letter to Ocwen which was ignored. The amount of funds received and held by Ocwen ( or potentially passed on to other parties without the knowledge or consent or authority from the borrower or any other party entitled to give such consent or authority) is $325,000. Whoever should have received said funds can and probably will make claim for said funds against the borrower, plus interest, cost and attorney fees if litigation ensues. Based upon the contractual and statutory rate of interest the amount owed by Ocwen to borrower is in excess of $400,000, the precise amount of which will be proffered by borrower as evidence at trial or summary judgment.
  9. Suit for Mandatory Injunction Against original trustee. As a result of all of the above, and according to title experts consulted by the borrower, the Trustee under the Deed of Trust that was recorded and never changed, notwithstanding fabricated, forged and unauthorized documents purporting to substitute the trustee. Borrower ahs sent a notice letter to the “trustee” (SEND ONE) which has been ignored. The original trustee refuses to assert itself in the above-related chaos of recorded and unrecorded documentation that was fabricated and used by multiple parties for multiple purposes. Said Trustee does NOT have the power of sale as recited in the Deed of Trust  and should be required to (a) assert itself as the Trustee and (b) reconvey the property to the homeowner-borrower because, as the first trustee knows, the parties designated as “lender” and “beneficiary” were neither the lender or beneficiary and were not the creditor in the cash transaction that did occur. The substitution of trustee, like a deed, does not create any additional rights or new rights under the original Deed of Trust, thus no Trustee under the deed of trust ahs the power of sale in this instance.
  10. Negligence and Fraud against the Notary: borrower has sent a notice letter (SEND ONE) to the notary with instructions to forward it to the Notary’s bond carrier. The Notary has failed and refused to respond or forward the letter to the carrier, thus preventing the homeowner-borrower from negotiating the claim for negligence in the notarization of the documents which were clearly not authentic.
  11. Mandatory injunction against the recording office: Borrower has sent a notice letter (SEND ONE) that is most appropriately called redundant inasmuch as the every recording office in the country is aware of the signature and notarization problems with documents that the title registry has accepted for recording. Since the notarization of the documents listed below were performed negligently (don’t say fraudulently because no insurance policy pays for fraud), and did not conform to statute or the standards applicable to the notarization of instruments, the notarizations are invalid. Since the recording of the instruments requires notarization, the recordation of these instruments is also invalid and should be purged from the title registry. The recording office refuses to do so, and obviously intends to accept new submissions on the same property fro recording using the same chain of documents that are outside of the chain of title and therefore are improperly recorded.  The current situation creates a cloud on title and renders title unmarketable by anyone. Unless the situation is resolved immediately, home-borrower will suffer continued financial losses and damages as well as potential loss of his property for which no action in damages can adequately compensate him.

21 Responses

  1. sorry, I meant OF the…

  2. The relentless bloodsucking on the great vampire squid—GOLDMAN SUCKS:

    http://www.huffingtonpost.com/2011/06/20/goldman-sachs-reportedly-manipulating-commodities_n_880379.html

  3. Mr. Bryl, is this the FDCPA item you’re referring to?

    (6) Taking or threatening to take any nonjudicial action to effect dispossession or disablement of property if—
    (A) there is no present right to possession of the property claimed as collateral through an enforceable security interest;

    or, sec 809(2) the name of the creditor to whom the debt is owed

  4. alright

  5. A-Man, still waiting to hear from you regarding that visit to Chicago or Milwaukee so we can have dinner together! And I think ANONYMOUS is on hiatus.

  6. HEY Usedkarguy. you forgot about Anonymous.

    Be Strong and Courageous

  7. tnharry express yourself. We need you on this sight

    NEVER AGAIN
    BE STRONG AND COURAGEOUS.

  8. tnharry, I don’t know what axe Louie is grinding, but I personally am appreciative of your feedback. I think everyone who follows this blog respects the input of any attorney in this venue. We are glad to have the likes of VanEck, Bryl, Bob G., Brian Davies, and of course yourself. And Soliman is and has been very patient with the naysayers, attackers, and other “know it alls” who have nothing to offer but criticism. Neil got this going, and we’re damn glad to have him stoking these fires.
    People need to understand that there is no one KEY to this puzzle we are living. Every loan, no matter how kinky, has a different twist. I filed my suit against Wells/HSBC/Gray and Associates in spite of the attorneys who have said “You’re done, you’re toast, GIVE IT UP!” I refuse to lay down and take it in the @$$ from these banks. If we can educate the judge a little bit, maybe enough to where they thoughtfully question the scenario presented by the distressed borrower, we are accomplishing something. Maybe I can’t win, but I can sure make them work to beat me. That”s it. I’m fighting for the roof over my head. Period. I fought too hard to get back to ZERO to let these m-f-‘ers put me in a $200,000 hole. Mad? Angry? Nahhh. I’m smokin’ HOT over this. And as I watch the houses in my neighborhood become empty, I get even madder. Here’s a quote from an attorney I’ve been in contact with: ” It appears that a judgment had been entered some time ago and that Judge XXXX has repeatedly denied the attempts to get relief from the judgment. That is unsurprising given the positions and personalities of the local judges.
    I see you have filed a separate action against Wells Fargo. If this action is related to the prior foreclosure action, you may run into the problem of res judicata applying. In other words, the judge in your action is not going to reverse the findings of facts and conclusions of law of his brother judge in the previous action.
    It sounds like you are trying to get the judges to recognize your positions with respect to out of state law (which they routinely disregard) and it is not working. Unless you plan to appeal or try to go through the bankruptcy process, I don’t see much optimism in your case.”

    So there you have it. “Give up! You can’t win!”

    I guess they don’t know me that well, YET!

    here’s a quote from an attorney in my neck of the woods: “

  9. @Louie – not sure what your agenda might be. read my posts again. i’m actually quite complimentary of Neil. I’m not afraid to offer a suggestion or a counterpoint here and there though.

  10. grammar

  11. tnharry, your critical of everything Neil does, you claim to be an attorney, which I doubt, and I could care less about your personal information. Most good attorneys are not afraid to identify themselves and say what state they practice in. I doubt given your grammer and punctuation that you completed law school.

  12. @Seeking Remedy

    I’m not sure of the exact post subject, but the attorney she (April) was referring to was in Huston, TX. April posted her own email address that day for anyone living in Huston who wanted to contact him.: april@thrillseekerstravel.com
    She also said she was willing to answer questions with regards to the title research that would be needed in preparation.

    My point is, if he can do it, why can’t attorneys everywhere start doing this? That’s what I don’t understand…

  13. Carie,

    Please point me to that post. I would VERY much like to get a hold of that attorney!!

    Thanks,

    ~Seeking

  14. Question:
    Back on May 28th, commenter “April” said she had a real estate attorney who not only stopped foreclosures, but threatened their securities licenses and got damages for every single penny the homeowner had paid to the “servicing company” from the date the securitized audit showed the loan had been assigned to a REMIC trust and according to the PSA. Why don’t we hear more about that angle?

  15. @BSTL – that’s generally accepted to be a good defense, but Neil’s post is meant to address offensive pleadings where you would be the plaintiff.

    @Louie – sure, I’ll give you my full name, bar number, etc right after you give me your full name, address and social security number….what are you getting at exactly? I’m not doling out specific advice to individuals. it’s all very general information. is there some reason you’re trying to get me to divulge private information other than malicious purpose?

  16. All this looks great, but, if you’ll pardon my dumb question, doesn’t lack of standing because of lack of ownership of the original note work in FL?

  17. tnharry, You always have better advice than Neil. Neil is an attorney. Are you an attorney? You always give out plenty of legal advice. I am assuming you must be an attorney and if so how might one get in touch with you in order to render your services. Have you ever thought about starting your own web page and setting the record straight. What is your bar number? I would be interested in contacting you and learning more about what you have to offer. I know you must be busy as most foreclosure lawyers are during these times. If you have a web site can you post it here so everyone might share in your vast wealth of information?

    tnharry, Since you don’t list any disclaimer after your postings i assume that you are an attorney. After all to give out legal information which many will take and use in their pro-se defence, one must assume that the party is licensed to give out this type of information. You say you are out there working in this feild everyday and I would like to check you out and make sure that i can use your advice based on your qualifications. I would like to know what your license number is so I can check with the Attorney’s Bar Association to verify your credentials.

  18. @Louie – I assume that’s mostly sarcasm since you took me out behind the woodshed in the comments section just last week. Either that or your opinion of me is so low that you don’t think I remember…

    And I don’t have better advice than Neil. He’s far and away more informed on the securitization stuff than I’ll ever be. I simply try to be a counterpoint to Neil and to provide supplementary information based on actually being out there and doing this stuff everyday.

  19. tnharry, You always have better advice than Neil. Neil is an attorney. Are you an attorney? You always give out plenty of legal advice. I am assuming you must be an attorney and if so how might one get in touch with you in order to render your services. Have you ever thought about starting your own web page and setting the record straight. What is your bar number? I would be interested in contacting you and learning more about what you have to offer. I know you must be busy as most foreclosure lawyers are during these times. If you have a web site can you post it here so everyone might share in your vast wealth of information?

  20. As I commented in the post Neil made about objections, I would caution using all of these together. A targeted, specific challenge will always carry more weight than a “shotgun” approach. There’s a real risk that some of your good claims may get thrown out with the questionable ones at the motion to dismiss stage if you go with the one size fits all plan. And most importantly, make sure you can adequately plead facts that support your claims. ID theft seems questionable in most cases and fraud of any kind requires special rules of pleading to support. The whole paragraph about notary fraud stands out to me as well. Absent specific knowledge of some actual fraud, you could be violating Rule 11 and subjecting yourself to sanction. Furthermore, suing people without good cause could also open you up to personal liability.

    These are good starting points, but not applicable to every set of facts. Pick and choose the proper ones for your circumstances. Just be judicious in choosing.

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