Pleading: The devil is in the details

Proposed pleading submitted to me for review. The difference is subtle to the casual reader but it is the difference between giving the Judge a chance to rule in your favor and giving him no opportunity to rule in your favor. Once you have tacitly or explicitly admitted the connections and validity of any of the documents upon which the co-venturers in the Ponzi scheme relied upon to foreclose, you are tying a bow around the case of the would-be forecloser. The more facts you allege in your pleading, the more you will be required to prove. The more you deny what is either plead or presumed in the foreclosure, the better your chances of getting cancellation of the instruments.

Paragraph submitted to me:

However, the wire transfer evidenced to this court clearly shows that the money wired into Plaintiffs’ escrow came from a different bank altogether, Centennial Bank of Colorado. Under Cal. Fin. Code §22009, AHL does not qualify as a lender in California. AHL acted as a broker of funds that were derived from the sale of mortgage backed securities, as was the intent of the “AMLT 2006-2 Trust”. (In this area you are writing about entering the “contract.”  See the AmJur for entering contracts without full “awareness.”)Deutsche Bank had a close contractual relationship with AHL prior to Plaintiff entering into any contractual agreement and was aware of the intent of the Trust to fund Plaintiffs’ loan and all of the loan(s) in the trust that were funneled through AHL as a “straw lender”. False and misleading information was entered onto Plaintiffs’ loan application by Defendants’ predecessors in interest without Plaintiffs’ knowledge. The applications, as exhibits, are factual evidence in this case and are admitted by Defendant(s). AHL, and thus Defendant Deutsche, as trustee of the beneficial trust and partner to AHL in the AMLT 2006-2 Trust, had a duty to deny the loan application for using false information that it knew to be false and because Mr. Macklin simply did not qualify financially, under TILA and Reg. Z, as well as California lending laws.

All that is sort of correct and mostly conjecture and what is being suggested is antithetical to the position that any homeowner wants to take.

MY Comments

As stated before do not refer to AHL as having acted as a broker. As far as you are concerned they were the lender according to their own disclosures and representations and those disclosures and representations were untrue. They were borrowing the transaction between you and the investors and passing it off as their own. With no other information and the other parties all having superior access to the real facts, you had no basis to know or even inquire about irregularities in the supposed loan papers.

You don’t know if Deutsch had a close contractual relationship with AHL and the probability is that they did not. If they did, then the AHL acts could be as authorized agent for an undisclosed principal — true, that might be violative of TILA and RESPA but it ties the funds you got with AHL which you want to deny. The fact that it is a violation but it does not negate the obligation running through AHL or at least it might not nullify the obligation.

THEN YOU USE THEIR OWN DOCUMENTS AGAINST TO CORROBORATE YOUR FIRST ARGUMENT THAT THERE WAS NO CONTRACT between homeowner and Deutsch and no contract between homeowner and AHL. : Even if Deutsch was the trustee of a valid trust into which loans were being assigned timely (within the 90 day cutoff period) and which were performing, Deutsch was violating the requirements, terms and conditions of the documents upon which they rely to assert their claim. Those documents require a performing loan to be assigned in recordable form into the trust within 90 days. The loan was neither performing, according to their own declarations, nor was the purported assignment within the 90 day window.

Deutsch is attempting to create circular logic here to prove a nonexistent point. Even if the situation was as they say, they would be violating their duties as trustee and could not accept the offer of the assignment, thus negating the contract. Further, examination of the transaction will show that the trust never paid for the assignment, thus lacking consideration in the same way as there was no consideration for the origination documents that Deutsch claims was signed by homeowner.

Deutsch was a co-venturer that had no concern as to the value or validity of the loan at any point in the chain events leading up to the point where they asserted a claim. They knew or must have known there was no committee using industry standard underwriting procedures and that the goal was not to loan money for repayment, but rather to simply loan money with the expectation of non-payment, thus enabling the the investment banker to collect on insurance and credit default swaps and federal bailouts that should have been made payable to the investors whose money was used to fund the loans.

By purchasing multiple insurance policies that were sham transactions in the sense that they were really sales of the same loan portfolio multiple times, the Ponzi scheme was enhanced on financial steroids. These soaring, ill-gotten gains enabled the investment bank to spread fees around on Wall Street like it was raining money. Any financial analyst would know instantly that on a loan where there was 5% interest, the fees could not possibly be sufficient to pay all the people up and down the false securitization chain.

Yet the money was there as has been reported abundantly in the mainstream media, with bonuses and profits literally in the billions of dollars to single individuals or small groups of individuals.

As further corroboration, the terms of the PSA require the assignor to either buy-back the bad loans or replace them with cash. Deutsch has either never made such a demand or it is concealing the demand so it can collect more than once. This is why a complete accounting, with a receiver if necessary, should be delivered starting with the funding of the loan and continuing to the current time. Both Deutsch and AHL were paid puppets of the investment bank that sold the bogus mortgage bonds and then took the money and used it for their own purposes.

Neither Deutsch nor the AHL have demanded a share of the insurance, credit default swaps and bailout that was paid to Deutsch. The reason is clear: Deutsch agreed that it would disclaim any interest in the loans and agreed NOT to pursue the homeowner for collection or foreclosure. The investment banker needed this assurance because otherwise both Deutsch and the participants and co-venturers in the false securitization scheme might have shown up foreclosing on the property not as co-venturers but as having opposing interests. Deutsch was paid its monthly fee to allow the renting of its name, with no further duties. The investment bankers were thus able to claim the loan as though they were holding the loan receivable when they had neither funded nor purchased it.

As further corroboration, of the fact that Deutsch did not treat the situation as one in which they were true trustee of a valid trust with an actual trust account, no trustee, would have ever agreed under these circumstances to release their interest or allow the investment banker to assert claims of ownership of what was in the trust — a fact well known to Deutsch since it was the issuer of most of the credit default swaps in the industry.

21 Responses

  1. “..and that the goal was not to loan money for repayment, but rather to simply loan money with the expectation of non-payment, thus enabling the the investment banker to collect on insurance and credit default swaps and federal bailouts that should have been made payable to the investors whose money was used to fund the loans…”

    Can someone please tell me why Neil says “NO FUNDING—NO LOANS” one day, and the next day he says the investors “funded”…?

  2. some of your comment have realy got me right here in my heart. YES i have worked my whole life to have my home stolen. I have one to stump everyone. wells fargo bank NA is the foreclsoing plaintif. i have been in foreclosure since december 2011. wells fargo calls myhouse i do not answer. NOW i started receivng letters form wells fargo home mortgage. I was denied a mortgage modification “by the investor who ultimately owns my mortgage”, then i was sent another letter about the advantages of a short sale. I have a lawyer and i sent them the modification denial. the para emails me ” have i sent wells fargo my finacials”? (why would i pay for a lawyer to defend me and send finacials to wells fargo? she must not have gotten an A in her paralegal class.) i was merely sending this to my lawyer for him to find out what they mean by the “the investor who ultimatley owns my mortgage” yet they claim ownership of my note. I have learned in foreclosure 101 they can not be separated.
    so my dilema is….what happens or can wells fargo home mortgage foreclose on me too? maybe my house has 2 credit default policies.

    now imagine if i walked away. both would foreclose independent of each other. i would not know. right.
    just a thought
    ps to ivent and carie and everyone in discovery my lawyer has asked for everything but my favorite request is…..documentation to prove when the note was stamped?

  3. Neidermeyer… call their Secretary of States office and complain. You could file a complaint with the State AG after that. They have to validate the miles on that title and give you a clean title. If the car is more than 10 years old, they could have stated miles exempt but it is too late for that. They have to cure the defect or take the car back.

  4. Looking for general advice .. and we have some smart people here ,, besides this parallels the housing/mortgage mess pretty well..

    Bought a car , dealer messed up an intermediate Odometer statement from a dealer to dealer sale listed on reverse of title, cannot title or get a tag (carfax indicates odo numbers are correct other than the one missing statement)… I did put money pretty big money into fixing some things … dealer has had 60+ days to cure delivery defect (odo statement) and give me marketable title… In 2 weeks my final temp tag runs out… dealer is from state next to mine ..

    Dealer could cure the defect but he now tells me to F OFF…

    Dealership has a bonding company but I don’t know what the bonding company insures.. bonding company name is not listed in the corporate records but is required as a condition of obtaining a dealers license.

    Do I visit my credit union and inform them that their security (car) can never be in their/my name and is worthless to them and me ,, get their lawyer to file (SC State or is this better in Federal??) stating the sale never completed properly and demanding the deal be unwound? In that case I see myself needing a 2nd attorney to represent my interests over and above initial purchase..

    Do I go to regulators? The bonding company? How do I establish “Long Arm” jurisdiction?

    Suggestions? THANKS IN ADVANCE….

  5. How can you fight this is the real issue? In AZ MERS business model is deemed valid and assignments don’t have to be recorded prior to foreclosure. Furthermore the AZ statute only requires that the appropriate party reach out to the homeowner during a trustee sale and you should take them at their word.

    I really think you need to “shot gun” the banks and see what you get traction with. You need it all FDCPA, QWR, Title issues, accounting, etc…I think you need to submit so much evidence to even stand a chance at winning. The odds are stacked in the banks favor at least in AZ.

  6. Obama Has Investments In This Corp….
    That is why he is allowing the ongoing bailouts…before he was elected he said he believed in spreading our wealth around the globe. Here is the proof of the Kronyism and why there is a conflict of interest between the politicians and the people:
    http://washingtonexaminer.com/obama-has-investments-in-companies-that-ship-jobs-overseas/article/2502361#.UEddVKE1jbq

  7. The actual amount of creditors is what they are hiding in discovery. The fact there are no recorded legal assignments allowed them to hide the ORIGINATION FRAUD and oversell investments in the mortgages and notes . That is how the massive fraud occurred…by arrogantly bypassing RECORDING LAWS. One attorney found his clients loan was divided among 607 different entities. They are hiding the insolvency of their debt.

  8. The Obama Administration chose to protect the banks rather than find resolve for the housing market, and that’s not a decision it can disown.
    Obama and his staff protect the crooks. If Romney wants to be elected he needs to answer to home owners. We already know Obama is full of deceit.

    Go Green ! Clean up Congress !

  9. The subprime loans were put into default before the loan in question refinance.

    Servicer is responsible for covering up who is the actual creditor/lender.

    Servicer does not believe that they have to disclose anything.

    Government supports this because debt buying is the largest business in the WORLD.

    Security investors and debt buyers would not invest in anything if they knew that their name could be exposed.

    Deregulation has allowed them to conceal all information from the public. The problem is this, unless the actual creditor is divulged, you still owe the debt. This makes it extremely difficult to ever recover after foreclosure.

    It was up to the AGs to expose the fraud– they failed.

  10. Obama said he wants to bring U.S. to a better place. Sorry, but many Americans do not believe a nation of financially weakened and more dependent people is a better place. Romney in a campaign speech today, used the words of Lech Walessa… evil has shown its ugly head around the world. I believe that is true and I believe that ugly head is complete communism. We were warned by the creator and the U.S. Constitution to watch for the signs of this. Anything that prevents the people from being free and independent is evil and that is what they want. A nation of broke, homeless, unarmed, microchipped, dependent mind slaves. They could only defraud us of everything by using secrets, lies and deception. The American Dream is Freedom and Independence. Not tyranny to fraudulently induced dependence.

  11. My sentiments exactly! We all know that the big banks screwed us all over. The problem is getting the info to prove this is challenging and the average joe (myself included) is at a loss of how to disprove the banks. The problem with the court system is even though you can have the facts on your side the procedure rules will kill the average Joe. We’re not all Brian Davies.

    I hope I last long enough and win my case against the liars but only time will tell…

  12. Ivent, BSE. Me too. Lucifer walks the earth

  13. 52 Shades of Greed – US Government and their theives exposed !

    http://52shadesofgreed.com/

  14. @Ivent

    My words exactly.

  15. Fraudclosure is the endgame failure of socialism. We were set up to fail. That is why the FED never paid the Treasury back for the ORIGINATION FRAUD and they were allowed to OVERSELL investments in their debt to insolvency and get bailed out. Fraudclosures, short sales, deed in lieu, renting your own homes and businesses from these scumbags is no less than Complete Communism. Refis of insolvent debts are another set up to fail for the citizenry. This is what people are failing to realize. If you allow them to steal it, you are most likely, NEVER going to get it back unless you are lucky enough to get a windfall. That is of course, highly unlikely. They are trying to resell the American Dream theory to people who already made it and had it stolen. If you work hard you can get it back doesn’t cut it for middle aged and older Americans. What they have taught our kids is, what good is working hard your whole life to have something of value when it can all be stolen by crooks in a blink of an eye? It is not right, it is SLAVERY IN DISGUISE….and it is criminal. It is the American Dream turned on its head.

  16. In addition, the other “investors” you mentioned are the security investors—of the cash pass-through receivables…they did not invest in “loans”…there was no funding—no “loans” in trusts…that’s why these investors are suing with regards to “misrepresentaions”…but they won’t tell you that…homeowners need to be left in the dark so that the foreclosures can go through.

  17. Thank You Neil for that great explanation. I agree we may be acting over defensive. An attorney told me when we answer the complaint, deny, deny, deny because they are imposters unless and until they prove otherwise. I was told not to try and be an attorney. Only go with what you can prove. I have uncovered more unsecured liens than equity, that I had no knowledge of. To say fraudclosure is unjust enrichment is absolutely true. The deception is WHO is being unjustly enriched….? These mortgages are absolutely insolvent. We could not have had any knowledge of what they were doing. This is simply outright theft. Even discovery is deceptive if we are only asking for the production of the loan file from one transaction. There were numerous transactions made from countless documents. That is why color of title is a valid cause for dismissal in any case. Nothing the attorneys for the other side bring to court validates their right to fraudclose because, they all got paid. Fraudclosure is simply the Government stealing of property from their own citizenry…and the judges are getting rich from it. The U.S. Government should be going after the FED for non payment of the origination fraud….not our properties. They all violated the TRUST for the peoples money….the U.S. TREASURY DEPT as well as our signatures. They are all dishonorable to say the least. Therefore, none of them deserve another dime from us, and especially not our properties.

  18. Deutsche doesn’t “own” any loans. Even their spokeperson says that. The “investor” is a junk debt buyer…but they don’t want you to know these things so they continue pretending.

  19. How do you research this? On my DOT and HUD1 it identifies the lender as the same party. I have a copy of the wire. It shows the “originator” as the title company. So far is this transaction legit?

    From here it has a swift field # with the letters JO at the end of the #. I believe this to possibly be the country of orgin. I’ve contacted the title company we used at closing who claims they only retain documents for the 5 year period required by AZ law. I’ve contacted the bank the wire was drawn on and all they can do is tell me the funds came from the title company.

    Does anyone know how to trace the funds from here? Deutsche is claiming to be the “owner” of my loan. My PSA stipulates they are “owner” on behalf of the investors.

    If anyone has any additional info it would be greatly appreciated.

    Thank you!

  20. Parsing out the Pleadings is one of the most important aspects of litigation. Neil (and others) also have the disconcerting tendency to reference “Deutsche Bank” as “Deutsch;” that is incorrect, if you were to use an abbreviation, then it would be Deutsche.” Again, Details. Also do note that, just like all the other players on Wall Street, Deutsche Bank is a hydra-headed monster, with lots of variations, all incorporated in different places, all designed to obscure, confuse and deflect. generally, there is “Deutsche Bank Americas,” which you find sitting in Stamford CT, and you have “Deutsche Bank National Trust Co.,” which is sitting in Southern California, and the parent entity, “Deutsche Bank” [possibly GmbH] sitting over in Franfort. They are not interchangeable. Attack the correct entity, and for my money, sue the parent bank on the basis that they control the acts and practices of the sub-entities. Sue the bums. Deutsche is the absolute worst player on the Street. Sue them all. Bury them in litigation.

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