What’s Working? — Agenda for Today’s Conference Call with Subscribing Members

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At the request of the members, I will be publishing an agenda before each conference call. The agenda is subject to changes depending upon news of the day, the questions asked by attorneys and laymen, and any case decisions that should be discussed. As always, the conference call is recorded and sent to any member who requests it.

Click Here to Subcribe Now and Participate in this Afternoon’s Teleconference.

Send your questions to neilfgarfield@hotmail.com. (Remember the middle “F”).  In the subject line Type “QUESTION FOR TODAY’S TELECONFERENCE”. If you are requesting a copy of the audio file, send the request to the same address and allow for up to 2 days for delivery to your email account. Conference lasts 1.5 hours.

  1. What is working in court and what isn’t getting any traction. Just because you are right on the law doesn’t mean the Judge will apply it as you want.
  2. Show Me the Money: Asking for proof of the payment or funding of the loan or transfer of the loan.
  3. Challenges to Authority to represent — especially when the lawyer says he represents the pretender lender, the trustee and MERS.
  4. Challenges to Old Trustee on Deed of Trust.
  5. Challenges to “substitute trustee.” Usually the substitute trustee is owned or controlled by the the party claiming to be the creditor, which amounts to a creditor naming itself as the trustee. In non-judicial states the duties of the Trustee on a deed of trust are to replace what would otherwise have been a court of law. The old trustees should be challenged to assert their authority and to contest the substitution based upon information you provide.
  6. Hogan Case in Arizona, up for Oral argument this month before the Az Supreme Court
  7. Strategic defaults: why they are rising and what that means for the housing market.
  8. Questions and answers

Remember that this is for general information only and not to be used as legal advice on your case. Before making any decision as to your home or mortgage or anything else you hear on these phone conferences with me, you should consult with an attorney licensed in the jurisdiction in which your property or dispute is located. The days of successful pro se litigants are coming to a close. The cases are becoming more and more fights over procedure and rules of evidence. Laymen are ill-equipped to deal with the actions and arguments in the context of procedural battles.

20 Responses

  1. Joann, …..your welcome. I do have more of these case decisions, CA statutes etc. but I hesitate in putting them out there for all to see because I know the opposition is also looking.

    If I may ask, what CA county do you reside in…..we may be close neighbors and be able to exchange some information?

  2. I’m with Gary H on judicial notice. I have read in more than one case that jn does not assume the veracity of the statements in the document noticed.

  3. @Gary H:

    Please tell me where you heard this…..case law, etc?

    Again Gary H. – just bumbling along here and trying to understand.

    Here is a good discussion of this:

    http://www.creditslips.org/creditslips/2011/07/standing-to-challenge-standing.html

    And search livinglies for:

    “Alabama Court: Busted Securitization Prevents Foreclosure” and read discussion of that case (didn’t want to put in too many links because it doesn’t get posted if you do that.

    Banksters want everyone including judges (and defense attorneys) to believe this is all too complex and irrelevant to a homeowner who is default anyway and going to lose a house anyway and the judges are more than willing to take that point of view.

    It isn’t complex. Don’t need to understand the complexities of securitization. Who got ownership when from who and who has ownership now. Who was the last owner of the mortgage before the trust that is foreclosing now – it isn’t the servicerpretendlender in the recorded assignment or the recorded originator. It is the depositor to the trust.

    So point out the relative paragraphs in the specific PSA to the judge (or make the point all psa’s go by the same rules in order for a mortgage to be sold into a mbs.

    The PSA’s and other trust files are posted on the SEC site – publically available even though some things got “intentionally omitted”.

    Here is a sample from one (“Company” is defined as “Depositor”) :

    “The Company does hereby irrevocably sell, transfer, assign, set over and otherwise convey to the Trust, without recourse, all the Company’s right, title and interest in and to the Mortgage Pool Assets”

    and:

    “With respect to any security backed by a Mortgage Security, the depositor will transfer, convey and assign to the trust all right, title and interest of the depositor in the Mortgage Securities and related property. The assignment will include all principal and interest due on or with respect to the Mortgage Securities after the cut-off date specified in the accompanying prospectus supplement. The depositor will cause the Mortgage Securities to be registered in the name of the trust, the trustee or its nominee, and the trust will concurrently authenticate and deliver the securities. The trustee will not be in possession of or be assignee of record of any underlying assets for a Mortgage Security”

    So now that there is a brand new fraud assignment to the trust it begs the question why? Did a sale take place or not? More importantly did the trust receive ownership of the asset or not?

    From the “Draft Report of the PEB on the UCC Rules Applicable to the Assignment of Mortgage Notes and to the Ownership and Enforcement of Those Notes and the Mortgages Securing Them:

    “In some states, a party without a recorded interest in a mortgage may not enforce the mortgage non-judicially. In such states, even though the buyer of a mortgage note (or a creditor to whom a security interest in the note has been granted to secure an obligation) automatically obtains corresponding rights in the mortgage, this may be insufficient as a matter of applicable real estate law to enable that buyer or secured creditor to enforce the mortgage upon default of the maker if the buyer or secured creditor does not have a recordable assignment. The buyer or other secured creditor may, of course, attempt to obtain such a recordable assignment from the seller or debtor at the time it seeks to enforce the mortgage, but such an attempt may be unsuccessful.
    Article 9 of the UCC provides such a buyer or secured creditor a mechanism by which it can record its interest in the realty records in order to conduct a non-judicial foreclosure. UCC Section 9-607(b) provides that “if necessary to enable a secured party [including the buyer of a mortgage note] to exercise…the right of [its transferor] to enforce a mortgage non-judicially,” the secured party may record in the office in which the mortgage is recorded (i)a copy of the security agreement transferring an interest in the note to the secured party and (ii)the secured party’s sworn affidavit in recordable form stating that default has occurred and that the secured party is entitled to enforce the mortgage non judicially.”

    ….Those last couple of sentences – the recorded ADOT is not that. The trustee bank for the trust (“secured party”) must produce those last two sentences. If they say it’s the ADOT they are allowing a supreme fabrication under perjury. They don’t show up in court and let the servicer speak for their interest – wonder why.

  4. @Gary H

    “I’m also in CA and have some interesting case law regarding judicial notice(RJN) I’d like to pass on to you…..”

    Thank you for this! Some of us have no hope of an attorney who will dig these things out for us. I am just a prior complete idiot now a little bit less complete idiot about these things who has tried to get educated and anything I ever post here is my bungling attempt to understand and have anyone explain why the understanding is correct or not. It is important to actually read cases and decisions.

    Read this one regarding this and all the case files are posted providing even more insight about many things such as what the bankster attorneys try to push over on the court and usually get away with:

    http://dtc-systems.net/2012/01/jpmorgan-wamu-dismissal-overruled/

    The recorded document is what is used to passively foreclose in non- judicial unless a homeowner becomes a plaintiff and sues – stands up in court and questions anything. Banker attorneys in court wave the recorded document as evidence of their ownership or the basis of their right to transfer ownership as in the recorded assignment and judges have accepted it unless the plaintiff homeowner does not object (or whatever you call it). If the homeowner does not specifically provide the info you just posted – thank you – and further proof (proof is on the plaintiff) why the recorded document is at best erroneous at medium patently false and misleading and at worst outright fraud(and I would say this is the reality because ownership is being claimed when there is none and the signer and institution he “represents” is fully aware of this and the point can strongly be made if you have other evidence such as when the loan was purportedly paid in full to the originator who then became a servicer only and answers to qwrs ect) – the judge just accepts the recorded document as evidence of the bankster’s ownership and right to do anything he wants – further complicated by for instance the P and A agreement that “lenders” like Chase wave around which is BS because loan was sold years before and needs to be pointed out to judges using the PSA language (and even real estate attorneys who are fearful to take this on or who think divine right was granted to Chase by the FDIC) that buy into it wholesale.

    We shouldn’t have to understand any of this and be in a position to point out anything to a judge or have to go to court at all but here we are.

    When the assignment to the trust is made by the servicer (non-owner) there is no notice of this given the homeowner within 30 days as per TRUTH IN LENDING ACT, 15 U.S.C. § 1641(g) LIABILITY OF ASSIGNEES. Who has the responsibility to notify the homeowner of the change in ownership? The new beneficiary. This is the trust on the face of the recorded assignment. The trustee for the trust tries to say there is no requirement for them to notify anyone because as a mere trustee (equating themselves with the trustee on the deed of trust) they have no beneficial ownership.

    In a recent case in Northern CA district court the judge made the distinction saying the trustee for the trust, unlike the trustee on the deed of trust, does represent the beneficial ownership of the trust and does have liability and responsibility to notify the homeowner. Read this case because there is much more in the opinion regarding jurisdiction, claims of fraud, beneficiary status and standing and how it relates to equitable considerations such as tender and more that relate to CA homeowners and claims:

    http://law.justia.com/cases/federal/district-courts/california/caedce/2:2011cv02098/227273/30

    I am seeing in this lack of notice that there is harm beyond the statutory penalty – without knowing about this new beneficiary a homeowner cannot in a timely fashion request the beneficiary statement and payoff demand statement as per California Civil Code 2943 and UCC 3-502 from the true beneficiary (which may be why this is effectively skipped by the trustee for the trust who wants nothing to do with it and no responsibility or liability to disclose what is actually owed the trust who is the supposed “true” beneficiary).

  5. @joann,

    “That thing about the homeowner not being a party to the PSA…..”

    Please tell me where you heard this…..case law, etc?

    “First there would be no PSA without the homeowner signature. Second the PSA dictates and legitimizes the homeowner’s “servicer”. Third the PSA (purportedly) transfers the ownership of the mortgage to the trust. Third the PSA is used to foreclose on the homeowner as in trustee bank for the trust in the name of the trust. How is a homeowner not at party to this “agreement”?

    I totally agree…..furthermore why would a borrower enter into a Contract without having full knowledge of other agreements that affect the borrowers Contract?

    The deception in this entire matter is no one knew!

  6. @joann,

    I’m also in CA and have some interesting case law regarding judicial notice(RJN) I’d like to pass on to you…..

    (i) “Judicial notice may not be taken of any matter unless authorized or required by
    law.” (Evid. Code, § 450). “Matters that are subject to judicial notice are listed
    in Evidence Code sections 451 and 452. A matter ordinarily is subject to
    judicial notice only if the matter is reasonably beyond dispute”. (Fremont
    Indemnity Co. v.Fremont General Corp. (2007) 148 Cal.App.4th 97, 113.)

    (ii) “Taking judicial notice of a document is not the same as accepting the truth of
    its contents or accepting a particular interpretation of its meaning.” (Joslin v.
    H.A.S. Ins.Brokerage (1986) 184 Cal.App.3d 369, 374.)

    (iii) “While courts take judicial notice of public records, they do not take notice of
    the truth of matters stated therein.” (Love v. Wolf (1964) 226 Cal.App.2d 378,
    403.)

    (iv) “When judicial notice is taken of a document…..the truthfulness and proper
    interpretation of the document are disputable.” (StorMedia, Inc.v. Superior Court
    (1999) 20 Cal.4th 449, 457, fn. 9 (StorMedia).)

    (v) “The fact a court may take judicial notice of a recorded deed, or similar
    document, does not mean it may take judicial notice of factual matters stated
    therein.” (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007)
    152 Cal.App.4th 1106.)

  7. Just my $.02 here:

    There is no way that all the players, SEC, IRS, AG’s, OCC, Obama administration, etc…do not know about all of this. I am a layment by all measures and I have proof of fraud, forgery, bogus asignments…pick your poison. The paperwork is in view. As for the proprietary information, if in fact there is such a thing, most of this paperwork should be available, because it is required by law, IRS rules, deed assignments, etc…again, how can they not know? The information is at their fingertips. There has to be a reason everyone is burying their heads in the sand. MONEY!

  8. @ian and joann – and that is why I have opined (sourceoftitle.com, if I may say) that decisons are being made for the benefit of one class at the expense of another. No one (other than the homeowners who currently have about as much clout as mud), wants to admit the loans aren’t in the trusts. As far as I can tell, the investors don’t for at least the tax consequences. The IRS won’t tax where tax is due for the perceived larger consequence of acknowledging the payments or what-not to the investors are taxable events. The law is either being stomped on for 1) some perception of a greater good or 2) for the undue influence of WS and those who would be taxed, or both.
    joann – you’re pretty darn good with a pen and you easily identify and articulate issues. What if you took your writings, for instance those here, and sent them to the judges in your state, especially your own SC? What could it hurt? Judges have a right to read their mail. I believe they will read it. We have got to change the presumptions of legitimacy.

  9. @NG, who said:

    “In non-judicial states the duties of the Trustee on a deed of trust are to replace what would otherwise have been a court of law.”

    Kudos! Takes me an hour to say that.

    What is a “subscribing member”?

  10. Didn’t get the log info and the call time. Please post. Thanks, Ken

  11. @Ian

    “indicated that you weren’t able to determine who the investor was”

    I am really talking about all mortgages and all homeowners. Been there and done that – no MERS – no Fannie Freddie. I have had all the details right down to the cusip for some time now and my mortgage identified in the free writing prospectus in the trust files (not the same thing as Mortgage Loan Purchase Schedule which is “intentionally omitted” in SEC filings for the trust files).

    The point I am making is for all mortgages – who is declaring the default occurred to who and on the authority of who and by who’s records? Who is now assigning to the trust for what reason and by what authority and who is foreclosing and by what authority.

    Who “owns” the secured interest and who is owed how much? The “beneficiary statement” has to do with how much is owed the beneficiary so when and how and if this is ever disclosed to any homeowner before he loses his home matters.

    I am really talking about all mortgages not just mine and the same occurs whether you know who legitimately purchased a mortgage or not. Even if you figure it out it really doesn’t do any good unless some attorney you can’t afford can actually get a case using that info across to a judge.

    Everyone gets to find out that entity though when the assignments and foreclosure sales start happening. Try to figure it out before you are in default is difficult or you have to pay for an expert to do it and might not even get it then – and those still paying on time – and I was one of those for years and years have no reason to question anything. If they do attorneys say there is no harm nothing to do – It’s different now though because more and more sales are headed toward a situation where the only option is short sale or walk away or foreclose because 50-60-70% drop in value puts more and more underwater and hopefully more and more will ask WHY? We are headed for a cash buys cash flow valuation and 99% renting if the why doesn’t get asked – that’s just what I think. Even the banks will eventually lose their bread and butter debtor slaves which may be the only good thing left to come out of this except at what cost to society?There is a reason for our public registries. It’s time for regulators to require disclosure of the off record and off balance sheet “irrelevant” transactions. We wouldn’t be here today if that had been done.

  12. joanne- at the risk of being repetitive, have you checked the MERS Investor ID feature, which is under Servicer ID? You just need your MIN number, SS#, and it will show you a name. Then check to see if the entity given is still in business, half of them aren’t. Your prior posts,or one of them, indicated that you weren’t able to determine who the investor was. Or was it the holder? Maybe it was the beneficiary, or perhaps the creditor. No, come to think of it, was it the bank? Must have been the bank. don’t feel bad, I can’t find who did what to whom and when either.

  13. That thing about the homeowner not being a party to the PSA: First there would be no PSA without the homeowner signature. Second the PSA dictates and legitimizes the homeowner’s “servicer”. Third the PSA (purportedly) transfers the ownership of the mortgage to the trust. Third the PSA is used to foreclose on the homeowner as in trustee bank for the trust in the name of the trust. How is a homeowner not at party to this “agreement”?

  14. Sorry everyone guess I am on a rant today.

    Homeowner has a right to request a beneficiary statement (or at least in non -judicial) only it has to be done TIMELY (to the right beneficiary which is never done – you get servicer “authority”, servicer records full of errors and servicer does everything he can to not disclose beneficiary in qwrs ect. and heck the reps haven’t even a clue who the investor is or if there is even an investor) so if never notified TIMELY of the newly recorded assigned “investor” “beneficiary” who will be foreclosing (VIOLATION OF TRUTH IN LENDING ACT, 15 U.S.C. § 1641(g) LIABILITY OF ASSIGNEES – there is the harm that goes beyond the statutory penalty for that one. Judges and everyone like to say there is no harm, you got a loan, you didn’t pay it, why should you care who gets your house or your payments. Why indeed. We better think deeply about that as a civilized society.

  15. Carie

    Nice to read-hear from you again.

    Exactly. My NOD – beneficiary is clearly and unequivocally not the beneficiary (and not even going by “theories”) and the contact to find out what I owe to the non-beneficiary is the default servicer (servicer by default to the bankrupt defunct non-beneficiary on the NOD meaning whimpy servicer pretender who constantly says he owns the non- beneficiary without any paper or money trail (but denies liabliity and “succesor in interest” status in his own court cases) didn’t even want to declare that default occurred to him – whimpy… or weasely meaning there is no default to him or the non- beneficiary named on the NOD and he knows it (but better for him this way because the defunct non beneficiary is harder to hold liable if questioned and because non-judicial looks the other way as long as something is recorded and the bankrupt guy is recorded while the default guy is not….) as if this is the primary authority on what is owed the “true” beneficiary – not.

    Simultaneously the servicer non-beneficary assigns “For Value Received” to the trust closed years ago. The signer is employed by the trustee on the deed of trust and signs as CEO of the servicer pretender lender. No notification of this sale – transfer – recorded – assignment which will be used as prima facie evidence of ownership in non judicial and taken as judicial notice by a judge if a homeowner tries to question anything if it even occurs to them to question anything at all (VIOLATION OF TRUTH IN LENDING ACT, 15 U.S.C. § 1641(g) LIABILITY OF ASSIGNEES).

    No way to receive verification of debt owed or amount owed to this “new” beneficiary by any “authority” under penalty of perjury with any first- hand knowledge to speak to what is owed them if questioned.

    You are exactly right- who do we write that check to? I am adding – how much exactly to the penny is owed to who and how many are claiming I owe them for something and how did it get rung up in the register – I want the itemized bill for each person I owe before I have to pay them or before they take my house. I also want to know where my payments made on time for years went.

  16. How is it okay for the “payoff” check to be made out to a debt collector? Isn’t a payoff check for “full amount” of “obligation” supposed to go to “beneficiary”? My servicer said if you want to pay the whole amount due—make the check out to “OneWest Bank, FSB”…who is only a debt collector. WHO is the G*D D**N beneficiary, and WHY wouldn’t I make the check out to them??? Can anyone answer that question?

    The fraud is so blatant: There is no “beneficiary defined to receive tender”…except to say the “investor” of your “loan” which is “pooled into” a “mortgage-backed security” blah blah blah…how are they getting away with this? The trusts are empty—yet they “assign” right before they steal your house…

  17. Ian

    One day maybe everyone will finally “get it” in the mainstream – generations from now? Maybe the irs needs investigation…. Solution could be free pass on tax consequence to “innocent” investors but call the bluff and stop it in its tracks. Stop it from continuing to be perpetrated around the world. It is so obvious a moratorium is in order. It won’t cause armageddon – we already have that just not recognized – can’t save the Titanic – and the upper decks can party all they want – they are going down too – send in a fleet of lifeboats and the navy and save everyone at the same time. The thing is so systemic with a mindless mind. Makes me sick.

  18. Joanne- If the ‘mortgages’ existence is due solely to the NY Trust structure and rigid legal requirements and the REMIC/REIT requirements of the IRC, and these requirements were all purposely disregarded, then the PSA,and within it, the servicer duties, can be of no legal effect whatsoever. The servicer (front for debt collectors, vulture funds, hedge funds,etc) should not even have our personal information, as their “contract” via the PSA is nonexistent. The IRS has publicly stated that they will not investigate the MBS/RMBS ‘Trusts’ for breaches under the IRC.

  19. And add to that the passive acceptance of the indentured trustee banks for the trusts who stand by while the sevicers seek by any means possible to wipe out the npv due the investors through the foreclosure mill adding 10 times the homeowners insurance premium in force placed insurance, bogus driveby inspections twice a month, payments to attorneys for the false filings and court perjury representations, bogus modification repeated aps and dual track collections – all of the above making sure the homeowners can never recover or bring their loan current. It isn’t just servicers who need investigation. Where does the buck stop? It shouldn’t be the govt (taxpayers) or the homeowner.

  20. Just wondering. When the indentured trustee bank for the trust passively lets the servicer (non beneficiary) make an assignment to the trust years later (not assigned by the depositor as required by the trust agreements and irs, assigned directly from the servicer to the trust, circumventing the 2 to 3 sales that were required and represented to have occurred years ago – assigning-selling “For Value Received” mortgages that are in default or eminent default, not within the 90 days of the closing of the trust and more) against all warranties and representations made to the certificate investors, sec, irs ect and the assignment also circumvents the states recording statutes (represented to investors that this would be done as required and necessary to protect their interests and all docs maintained in recordable form) and proper challenges will continue to show it results in illegal foreclosures…..first it ought to be of concern to the investors – it pretty much confirms they never received ownership, throws into doubt the 2 or 3 true sales that supposedly already occurred in order for them to have ownership – jeopardizes their tax status in any income received since the inception of the trust – it’s a fraudulent conveyance – sale by a party who has nothing to convey or sell – a claim of a secured ownership interest by a party who has none – it clouds the title for all future transactions including the foreclosure by the trust itself which is illegal because it cannot receive ownership of a mortgage if purchased or conveyed from anyone who did not have ownership- NOD by non-beneficiary and ADOT by non –benefiicary false and fraudulent means those instruments void and if used by indentured trustee for the trust to foreclose and then sell a home…..just wondering…. Frist there is big breach of contract or such to the trust investors, then there are false filings with the sec and irs ect and then there is collusion or such by allowing the false filings, fabrication, robo signing forgery notary fraud ect in the public registry and then ther is fraud on the courts (allowing a servicer to pretend they are authorized to speak for the trust) and fraud on homeowners and illegal seizure of property. Doesn’t the indentured trustee for the trust have big liability here on many fronts – yet they remain far removed and let servicers pretend to represent them. Are the AG’s or any other on to this??

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