More Traction for Deny and Discover

Deny and Discover, is the strategy developed by Neil Garfield and presented in recent seminars. The results have been profound. Those who employed it correctly have seen mostly rulings in favor of the borrower/debtor. Become a member (CLICK HERE TO SUBSCRIBE NOW) and you will be invited to our twice monthly discussions of strategies and tactics that work in foreclosure defense, modifications, and mediation. To get a consultation with Neil Garfield Click Now to Consult with Neil Garfield.

A bankruptcy Judge in Northern California found that the claim by the alleged forecloser was insufficient to establish even colorable right to proceed in foreclosure. The logic employed was irrefutable.

The a declaration/affidavit was signed for a company that could only have knowledge of the case AFTER the Notice of Default and Notice of Sale was ordered. If that is what the notice of Default was based upon then the trustee had no right to schedule the sale.

The person signing, used the usual “I am familiar with…” language and the Court found that the declaration/affidavit on its face showed a lack of personal knowledge on the part of the person signing the affidavit. This is important because it is doubtful that many people are around who DO  have personal knowledge and if they did, whether they would testify to what the would-be forecloser would want.

The court found a lack of foundation (sound familiar, seminar participants) to proffer ownership of the note not mere possession. As an employee the affiant was not COMPETENT (paying attention, seminar participants) to testify that the movant was the holder of the note, which is a LEGAL CONCLUSION. This left the movant without standing to apply for a lift of the automatic stay.

Notable quotes:

” The simple fact that Ms. Hiatt is over the age of eighteen and is employed at SPS is inadequate, in the presence of an evidentiary objection, to show that she has personal knowledge of the facts necessary to authenticate the Note. The Hiatt Decl. is merely a boilerplate recitation of Rule 803(6) and Rule 902(11). The Hiatt Decl. does not contain testimony of the kind described above that is necessary to show Ms. Hiatt’s personal knowledge of the facts offered to authenticate the Note. If the Hiatt Decl. is an attempt to invoke Rule 902(11), the movant never provided written notice of its intention to offer the records as self-authenticating under that provision.    Accordingly, the Hiatt Decl. fails to authenticate the Note.

Possession of the Note

The same personal knowledge requirements apply to Ms. Hiatt’s testimony regarding the movant’s possession of the Note.    Fed. R. Evid. 601 and 602. Here, the Hiatt Decl. is absent any statement that would indicate the movant has possession of the Note.    Ms. Hiatt simply states that the Bank “is the holder of the Note;” however, as an “employee,” Mr. Hiatt is not competent to testify to legal conclusions.

The movant might establish the requisite personal knowledge of the movant’s possession of the Note if an employee or agent of the movant could truthfully state that he or she has personally reviewed the movant’s files regarding the loan in question and that he or she has personally verified the presence therein of the original Note, a copy of which is attached to the motion.

Standing

Based on the forgoing defects in the movant’s evidence, the movant has failed to demonstrate that it has standing to bring this motion for relief from the automatic stay in this case. As this court recently stated in its decision in In re Jackson, B.R., 2011 WL 2247816 (Bankr. E.D. Cal. June 6, 2011)(Holman, J.) in order to determine a party’s standing in the bankruptcy context, two inquiries are required. First, the court must determine whether the party has constitutional standing, i.e. whether the party has suffered sufficient injury to satisfy the “case or controversy” requirement of Article III. If the movant does not satisfy the first inquiry, the court lacks subject matter jurisdiction to hear the matter. Id. at * 2. Second, the court must determine whether the party has prudential standing, i.e. whether the party is properly able to assert a particular claim; where the party is seeking to enforce a negotiable instrument, as here, the movant’s right to enforce an obligation is determined by the Commercial Code.

The movant in this case has not satisfied the first or the second inquiry.    First, the court finds that the movant has not presented sufficient evidence to establish that it as constitutional standing because it has not shown that by admissible evidence that it is the owner or has legal title of the Note. Second, the movant has not shown by admissible evidence that it has prudential standing as the “person entitled to enforce” the Note in any of the ways described in Jackson. Accordingly, the motion is dismissed without prejudice.

29 Responses

  1. @ Greg, you said ….. …” While the government may be the “head”, big money is the “neck.”

    I would like to add that the Investors are the Shoulders that support the neck, and workers are the backbone.

  2. “Ignored by Obama…” While the government may be the “head”, big money is the “neck.”

  3. Update on my case. 3 causes of action + QT: violation 2943, slander of title; decl relief; and request for return of original note at end of case (2941). 2943 is CA QWR (copy of note) which defendants delayed answering until 21 days passed and I was forced to stop making payments in order not to affirm a fraudulent obligation. Then defendants sent a letter stating the ‘… requested document is not available in paper format…’, then filed NOD, usual transfer of interest, and months later answered QWR with a copy of the note. I fired my atty who directed me to BK, filed an amended complaint, and obtained prelim injunction under condition of making mtge payments to opposing counsel’s firm.

    Complaint stated I could secure rev mtge to pay off subject loan if beneficiary identified. 2943 allows for all damages. As defendants filed NOD instead of answering QWR, causing me to stop making payments, they became tortfeasors. I also denied defendants held beneficiary interest, denied the amount that was owing, and that property has multiple of remaining loan amt as equity in property. Most of my pleadings were focused on slander of title, with constant reminder of violation of penal code (115.5 – false filing). There is a placeholder about securitization if discovery allows, and recital that recent CA case law doesn’t apply to my case because it does not consider the public interest of having property recorded and available by disinterested party (counties) among other things (how much lower bid on Trustee Sale of FC home if title not clean, or unknown, and can’t be insured).

    But I focused on getting causes of action past demurrers, and now defendants’ answer has survived demurrers and the case has moved to discovery. Their answer states that their attorney says defendants’ possess the original note, endorsed in blank. Defendants presented assignments recorded with county recorder, but Calvo v HSBC issued since first PI, stating deed of trust loans are not encumbrancers and are not required to be recorded in order to conduct foreclosures (2932.5).

    In an attempt to reduce discovery costs, I filed motion to modify the PI, citing substantial evidence is available from parties as pleadings are past demurrer, and the change in case law since first PI, noting that questions of law need to be answered before questions of equity (the mortgage payments as ‘security for damages’), and asserted defendants are tortfeasors. I also stated the continued payments were never intended because the rev mtge would have paid off the loan in 2010, their answer provides only hearsay of their beneficial interest to receive such payments, and defined in my motion the corroborating documents necessary to confirm they are a party to the contract and that the court has jurisdiction over them in that context. And I requested a statement of decision on the facts used by the court if my motion was denied for issues such as why continued payments when equity exceeds debt and defendants are tortfeasors who injured themselves by their actions (filing the NOD), and why I should insure for security interest damages the damages caused by defendants for a fictitious loan without substantiation and a termination date in 2010, extended solely by defendants actions.

    The judge blew me off and denied my motion, citing there was no interest in justice or change in facts or law justifying a change. Furthermore, there would be no statement of decision, even though I cited statue and case law that appealable orders are judgments that allow statements of decisions, and that the Appellate court states it is reversible error per se to refuse to provide, because the judge would not have time to answer all the statements of decisions that would be presented. And no, the tentative ruling did not address the issues I raised in my request for statement of decision.

    This is the state of the CA judiciary today. The Laughistrators in Sacramento have raised court filing fees by 50% in the past few months, but not raised the standard for waiving fees of the Fed definition of poverty level. And court budgets have been slashed again in order to support all the CA programs has for illegal aliens.

    Any suggestions? Bear in mind an appeal would cost over $1k, and the Appellate court would only remand the case back to Sup. Ct to provide the required statement. I then likely have to file a 2nd appeal to actually deal with the motion to modify on the grounds the court abused its discretion in using the facts laid out in the the statement of decision response..

  4. Really don’t know what it’s gonna take…

    Bill Black wrote on it: ignored by Obama. Dylan Ratigan wrote on it: ignored by Obama. Matt Taibbi writes on it pretty much every day: ignored by Obama. Neil Barofsky wrote on it (and boy! Did he ever spill some beans!): ignored by Obama. Cathy Austin Pitts: ignored by Obama. Sheila Bair ain’t gonna be more successful. Mandelman is quite vocal: doesn’t make a dent.

    Must be pretty darn good to live in an ivory tower we all pay for… Or… there’s something true about all the “conspiracy” alarmists and their theories that he wants to push us as hard as he can so that he can have a reason to crack down! If something isn’t done, I think it’s fair to say that a few judges may start being used for target practice. Maybe that’s what it will take…?

    The bets are on: how much that Obama will get reelected and… will pick A.H. Geithner again? How stupid do we have to be to keep paying taxes and supporting those dangerous clowns? And get that: every day i get texts and phone calls asking me to take an active part in the campaign. And every day, i give the same answer: “Has Obama declared a foreclosure moratorium yet? Has one banker been jailed yet? Then no, don’t count on me! I ain’t gonna serve as asphalt for the banks’ runway!” I have to say though: they don’t push as hard as the other, desperate camp.

  5. When the servicer banks were not making enough profits on deadbeats (not enough deadbeats I guess), they enacted that sneaky lil clause that gives the servicer the right to protect the investors intrest if the borrower had defaulted or the servicer has reasonable belief to believe the borrower would default. The reasonable belief was when you applied for that loan mod. Ironic….?? Then servicer racks up hidden fees and funds them thru your escrow while you are in default (or not). In addition to collecting those fees during default/mod they also charged off those same fees to the investor for their services. GAG! They were so Greedy … they didnt want to pay those pesky recording fees …. Gobble! Gobble! Gobble! Turkeys can drop dirty snowballs but they can not out run a clean one ….. “SPLAT”!

  6. Actual words of head honcho at Fannie/Freddie when confronted with undeniable, irrefutible proof of GSE false default, empty trusts, unsecured debt, etc,:

    “Let it go.”

    I’m not kidding—my friend showed them the proof…and that was their answer…”Let it go.”

    Basically, a giant “So what—EF YOU…WE DON’T CARE.”

    Congress has given a green light to the courts to push foreclosures through however they can.

  7. http://www.huffingtonpost.com/2012/09/27/sheila-bair-timothy-geithner_n_1918753.html?ncid=webmail20

    Sheila Bair criticized Treasury Secretary Timothy Geithner in an interview with the Wall Street Journal on Tuesday.

    Former financial regulator Sheila Bair says that Treasury Secretary Timothy Geithner was primarily concerned with shoring up Citigroup and other banks in his response to the financial crisis, rather than holding those banks accountable.

    Bair went on a media tour on Tuesday to promote her new book, “Bull by the Horns,” about the government’s response to the financial crisis, which she experienced firsthand as a top financial regulator. Bair criticized Geithner in the book, and she aired some of that criticism in an interview with the Wall Street Journal on Tuesday.

    “He was in constant communication with [Citigroup CEO] Vikram Pandit throughout that whole process, and I felt like he and Vikram were figuring out what they were going to do and then trying to jam it on me,” said Bair, who served as chair of the Federal Deposit Insurance Corporation (FDIC) between 2006 and 2011. “I do think that a lot of the policy decisions that were made were made through the prism of what Citigroup needed.”

    Bair said that most big banks did not need the Troubled Asset Relief Program (TARP), the government’s bank bailout in 2008, but the government forced TARP on all of them partly because Citigroup needed it. “It worked horrible reputational damage on everyone,” Bair said of TARP.

    Some TARP defenders say granting TARP funds across the board was necessary to avoid a loss of trust in specific banks. Citigroup was one of the more vulnerable banks during the financial crisis, since it held a large number of toxic mortgage-backed securities. The government gave Citigroup multiple bailouts.

    “He viewed these institutions as entities that needed to be taken care of,” Bair said of Geithner, adding he thought the banks “needed to be taken care of and that this was just a big systemic event, and we needed to protect them — whereas I wanted them to have accountability. They had caused this.”

    “If you view the banks themselves as victims just of the larger crisis, then you’re going to just try to help them however you can, and I think that was his guiding philosophy,” she added.

    Geithner declined to comment to the Wall Street Journal after the interview.

    This is not the first time that Bair has criticized Geithner. She told CNBC in July that the Federal Reserve Bank of New York should have done more to investigate the Libor rate-rigging scandal in 2008, when Geithner served as the New York Fed’s president. “It looks like they had pretty explicit notification of some very bad behavior, and I don’t understand why they didn’t investigate,” she said. “They did have authority to do that.”

  8. I need the duct tape for my mouth … It appears that it best to keep it quiet because it seems no matter what I say … I’m gonna shoot one of my limbs off and as you can see .. with 5 personalities, I do not have 5 limbs to spare …..

  9. I’m the Worker, Investor ,Homeowner, Saver, Taxpayer … You could compare it to having multi-personalities. It depends who the Buttwipes pisses off 1st each day ….. *grins*

  10. @SC,

    At times, I don’t get you. Still waiting to get clarification on the “duct tape” thing and this one flies way over my head…!

    Here is a little “How to…” by Stopa. Might help some here. The serious ones, I mean. With a case pending. The real doers who don’t just shout their mouth off.

    Untimely Objections are Waived

    Posted on September 27th, 2012 by Mark Stopa

    I had two hearings this morning where the Plaintiff moved for an extension of time to respond to my client’s interrogatories. In each hearing, the issue became whether the plaintiff could “respond” to interrogatories, as opposed to “answer” them, several months after those interrogatories were served.

    What’s the difference, you ask? By seeking the ability to “respond,” as opposed to “answer” the interrogatories, the plaintiffs wanted to preserve the right to object. In other words, having gone several months without serving any discovery responses at all, the plaintiffs wanted to avoid giving me substantive “answers” to my interrogatories by interposing blanket objections. If permitted, that would force me to file a motion to compel answers, without objection, and set that motion for another hearing.

    Florida law has a very simple rule on objections. If you have objections to discovery, you have to serve those objections within 30 days. Sometimes, candidly, this rule is not rigidly enforced at the trial court level. However, given the existence of the Rule, it is easy to argue that plaintiffs should not get to wait 5 or 6 months to “respond,” then, when they do respond, serve blanket objections without any substantive “answers”. In other words, judges may be lenient about the 30-day requirement, but they typically wont’ allow any party to wait 5-6 months before objecting to discovery.

    Imagine the roles were reversed. If defendants were trying to get away with waiting several months to “respond” to discovery, plaintiffs would be standing on the table screaming about how we are delaying the foreclosure case. The standard should be no different for plaintiffs. This is particularly so since plaintiffs love to ask for summary judgment or trial, even with discovery outstanding, and assert the defendants were dilatory in pursuing discovery.

    I won both hearings based on this argument. Both times, the judge gave the plaintiff more time to answer my discovery, but the judge required “answers” to my interrogatories, without objection.

    Anyone faced with this situation, I strongly recommend you adopt this approach. “More time to respond to discovery is fine, judge. But at this point, the plaintiff should be providing substantive answers, without objection.” I’m confident, more often than not, this argument will prevail.
    Mark Stopa

  11. If you throw dirty snowballs your Gonna Strike Out! Because the the party throwing the clean snowballs is going to hit their target the 1st time and knock them out Cold if they throw 1st! “SPLAT” …. Its all about who throws the first snowball that determines if there is going to be a game? a game with one inning? or a game with three innings? I choose not to play …. Its a Messy Game. But very Educational from the sidelines … cough”cough’

  12. @DCB,

    Remember that DeWine thing I posted a couple of days ago?

    That seminar was loaded with info that isn’t on the presentation, including pleadings, motions and such. Check it out on http://www.mvfairhousing.com/cle/resources/

    Even though it is a year old, I bet it’s still relevant today.

  13. Oh Jeez! Must we have a weirdo on every single page…?

  14. LLC – limited Liability Company
    This is the taxable REIT subsidiary and transferee that is the sole share holder or your “investor” The TRS is the subsidiary of the tax payer corporation who elects to from a REIT yr 1. Its sale lease back of the shares avoids the prohibition on servicing rights but here is what raises the gratuitous surety argument and restraint on exoneration
    registerclaims@live.com
    Not intended as a Robo, Bubo or Hobo defense. Not for inferring anything as to a banister’s, prankster’s or prankster’s.
    DISCLAIMER Not an attorney nor licensed to practice law. Call your state bar for an attorney in your area. For informational purposes only

  15. LLC – limited liability company

    This is the taxable REIT subsiidiary and transferee that is the sole share holder or your “invetsor” The TRS is the subsidary of teh tax payer corposration who elects to from a REIT yr 1. Its sale lease back of the shares avoids the prohibition on servcing rights but here is what raises the gratuitous surety arument and restaint on exoneration

    registerclaims@live.com

    Not intended as a Robo, Bobo or Hobo defense. Not for inferring anything as to a bankster’s , crankster’s or prankster’s .

    DISCLAIMER Not an attorney nor licensed to practice law. Call your state bar for an attorney in your area . For informational puroses only

  16. LEAVE A REPLY – WHY ?

    People – if the following does not satisfy the missing link TO AVOIDING FORECLOSURE then nothing will. Read it till you get it.

    What it says to me is Party over.

    Best mis joinder arguments one can get into a court of law.

    Bonds –Before a company’s reorganization plan takes effect, bond holders are given the opportunity to review the plan, and bond holders vote whether to accept or reject the proposal. Crucially, stockholders do not always have the opportunity to vote on a reorganization plan, which means the owners of the company have less opportunity to protect their interests than the company’s creditors. Secured debts are tied to some form of collateral, while unsecured debts involve no collateral. The claims of secured debt holders are settled before unsecured creditor’s claims are addressed, so not all bond holders nor preferred claims are addressed equally.

    Side note: Foreclosure In America is a repossession effort for depositor accounts and confiscating cash while crediting back the devalued shares for purposes of “short title” . It’s a “deep in the money” “option” with a strike price set at the value and date of anticipated the sale by sheriff or trustee.

    This all to appear to save the tax payers under TARP and yet continues to be a solid claim of “laches” …it’s all before the foreclosure is ever allowed to surface

    “…..Boy, the trustee postponed my sale, hey , postponed it again , hey again and hey once again – – ”

    It’s called a future contract that has yet to ripen- right up to the target strike price . .. Look , you see…..never mind.

    Anyone find a Robo signer this week ?

    Read more: Who Has Priority, a Shareholder or a Creditor? | eHow.com http://www.ehow.com/info_8646506_priority-shareholder-creditor.html#ixzz27gDuO6tQ

  17. Based on the forgoing defects in the movant’s evidence, the movant has failed to demonstrate that it has standing to bring this motion for relief from the automatic stay in this case

    There is no right of automatic stay in these foreclosures brought in a BK . Trust me on this – or better yet – do yur homework .

    One west Bank last week states in court – (not verbatum)

    we are here soley for the note. And
    our client is not holding this matter as a foreclosure.

    Prior to that the creditor brings in an executed blank endorsement . .

    Wow three strikes here and parties are arguing for what – Relief or merit for denying relief ? (did anyone see the latest reports our SAT scores are at an all time low….Hmmmm)

    You got a door opened perry mason – strike – move to dimiss the entire creditor claim.

    not an attorney and not intended as legal advice – call state bar for more information about your rights and hiring an attorney

  18. Thoughts on :

    A limited liability company filed in Delaware, under Donald Pugalisi which has almost the identical name of a securitized trust:

    GSAMP2007HE2 alleged trust

    GSAMP2007HE2 N, llc

  19. Garyinca, on September 27, 2012 at 2:54 am said:
    good grief Charlie Brown a.k.a……M. Soliman

    Its sad this has to happen – over and over . Your not getting it. And if I knew how hard this would be too communicate to the judicious in America …perhaps I would not be here . Your entitled to your comments but do try reading what I publish – send NG the money ,

    Just read what I publish and hold on to it …this party is sure to end after november – preemption

  20. good grief Charlie Brown a.k.a……M. Soliman

  21. JURISDICTION

    The district court is the proper venue Pursuant to the unedited states governments involving 18 U.S.C. § 983(a), administrative civil forfeiture

    SUMMARY OF CLAIMS

    A Federal Question arises out of the Defedants enforcing a Security Instrument alleged to combine uniform covenants for national use subject to limited variations by jurisdiction to constitute a uniform security instrument covering real property, done under the Federal Acquisition Regulation (FAR), including those concerning competition and conflict of interest.
    Plaintiff alleges a misconceived public policy under federal procedures brought by certain enactment under TARP that systematically incorporates an oppressive means and intolerant method for systematic enforcement of repossessions need to link chattel and cash held in depositor’s accounts with the inability to fulfill executory contracts.
    Defedants are the benefactors of trust represented by their duly appointed agents who clearly operate outside the tolerances provided in this recovery under the TRAP initiatives.
    Defedants are negligent in promulgating the mission scope and purpose of the “Act” of 2008. In this argument , allegations re the recovery is solely to cure the charges and write-down of “toxic” assets, a code word given to valuable equitable interests in securities and cash accounts held in depositors accounts.
    Plaintiff is asking the opposition, “to what degree or level does the toxicity pose risks, if the toxic waste produced from 1996 through 2008 is quarantined in isolated and remote “Specialty Enterprises”. Finally, where the valuable accounts are required to be siesed of their legal title and are held free of lines and unencumbered, the barriers to foreclosure are in fact due to the inability to foreclose.
    Plaintiff asserts the degree of financial toxicity that exists, demands the securities representing the estates title remain where they are held. Hence, barring financial agents from seizing the common stock voting rights and access to divested title for the term agreed to at bargain – thirty years.

    soliman expert testimony
    registerclaims@live.com

    not an attorney not legal advice soley for testimony purposes -call your state bar for referal of competant counsel

  22. Thank you Neil.

    Is there any way to cite this case. Is is published?

  23. Foreclosures hurt renters

    The plight of distressed homeowners is at the center of the foreclosure crisis, but a report from the National Low Income Housing Coalition reveals that renters are also at risk of losing their homes. Renters make up at least 40% of the families affected by foreclosure, and the number of renters affected by foreclosure has tripled in the last three years. The report, Renters in Foreclosure: A Fresh Look at an Ongoing Problem, shows that at the start of the crisis, high-poverty neighborhoods saw the most foreclosures, and foreclosure rates are still disproportionately high in African-American neighborhoods.

    The entire 26-page report can be found here:
    http://nlihc.org/sites/default/files/Renters_in_Foreclosure_2012.pdf

    Afflicting and worrisome. We’re moving closer to a bloody revolution by the day…

  24. Subprime lending suit is revived

    The U.S. 6th Circuit Court of Appeals, reversing a district judge’s dismissal of the case, reopened the courtroom doors to a lawsuit filed by the City of Cleveland against mortgage lenders whose subprime loan foreclosures helped precipitate a nationwide financial crisis. Between 2000 and 2008, Cuyahoga County had approximately 80,000 foreclosures, making it what the county treasurer called “the epicenter of the mortgage meltdown in America.” The lawsuit accuses the lenders of securitizing subprime mortgages and later foreclosing on the houses that were purchased with them.

  25. http://www.scribd.com/doc/107111574/America-s-Wholesale-Lender-Countrywide-Fannie-Mae-Illinois-Answer-to-complaint-Affirmative-Defenses-and-Countersuit-against-Fannie-Mae

    Illinois Answer to complaint, affirmative defenses and counterclaims against Fannie Mae

    Illinois case where loan was sold to Fannie Mae and undisclosed. The Loan was made to America’s Wholesale Lender a copywrited trade name. This DBA is not a person or able to contract to a mortgage. Fannie Mae allowed these parties to do assignments that were a scam. So answer, affirmative defenses and counterclaims made.

    This is a good roadmap for those in Illinois.

  26. I don’t wanna be your friend
    I just wanna be your lover
    No matter how it ends
    No matter how it starts

    Forget about your house of cards
    And I’ll do mine
    Forget about your house of cards
    And I’ll do mine

    Fall off the table,
    And get swept under
    Denial, denial

    The infrastructure will collapse
    From voltage spikes
    Throw your keys in the bowl
    Kiss your husband ‘good night’

    Forget about your house of cards
    And I’ll do mine
    Forget about your house of cards
    And I’ll do mine

    Fall off the table,
    And get swept under

    Denial, denial
    Denial, denial

    Your ears are burning
    Denial, denial
    Your ears should be burning
    Denial, denial

  27. “Accordingly, the motion is dismissed without prejudice.”

    Bank corrects the mistakes, refiles, motion granted. Remember Rickie Walker? The Caporales?

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