What Lawyers Are Being Taught in Current Seminars About Foreclosure

It might strike a note of dissonance when you realize that all the knowledge, facts and theories are well-known by title experts and they are teaching mostly correct things to lawyers. The problem is not whether the information is being disseminated. The problem is that the Lawyers are either not paying attention at these seminars or they are refusing or failing to follow what they have been taught. That includes lawyers who become Judges.

If you don’t know these things, you should be a member of this blog, participate in our twice monthly teleconferences, and attend any seminar you can lay your hands on. NBI has several although they shy away from the third rail of securitization.

In the end BOTH the Max Gardner of approaching the documents and the Neil Garfield method of following the money will be needed to drill the point home — i.e., that the mortgages, notes and obligations were faked from beginning to end and then covered up with false assignments, indorsements, “allonges” and other affidavits or instruments that make it look pretty but fail to meet the test of a proper foreclosure.

And you arrive at the same conclusion regardless of whether you start with first money exchanging hands with the investor or first funding with the borrower at the time of origination.

As the pace picks up on government, borrower and investor lawsuits that soon will be facing statute of limitations arguments from the banks, the realities are closing in on the banks and servicers. Any Bank will tell you that you can’t go in in with a gun, make a “withdrawal” and then settle the case with pennies on the dollar. ALL the money is seized, and the perpetrator goes to jail. I predict some nasty surprises for the megabanks next year and some of those will lead to break up of those banks into smaller banks that are more easily regulated. Glass Steagel might not come back completely but administratively we are headed in that direction.

The following is from my notes taken from many different seminars at which the presenters were title examiners, real estate lawyers, professors of law and even executives from the title insurance industry who articulated the situation quite clearly. Title is corrupt, but they fault the banks for misleading the title carriers as to the character and content of the closing. They understand the problems with “credit bids” and that is why they charge extra for a title guarantee — an instrument that is usually not even mentioned to ordinary people buying property.

Heads up to those on the fringe of real estate transactions. Title must be clear, not clouded or defective and must be insurable. In the case of transactions in which securitization and assignment claims are being made, the “economic interest” rule of thumb and industry standard is the sticking point. When you actually follow the money the documents don’t add up, which is layman’s way of saying what lawyers call an absence of a nexus between the transaction and the documents.

This is where the giants will fall. In fact, it was the the improper, illegal and fraudulent use of the money and the signatures of the parties that got them to appear so fat to begin with. When the dust clears, banks like BOA, (which is already executing on a contingency plan for a breakup by quietly dumping all contested foreclosures into third party hands), will not exist in their present form.

MAIN TAKEAWAY ITEMS:

1. Title insurance only applies if there is an insurable interest. It was universally
accepted by the conference (including those who were there to protect the interests of the banks and pretenders), that an insurable interest includes two elements: (a) a recorded instrument naming that party and (b) an economic interest in the property. Thus if we take the position that an insurable interest is based upon law and not just policy, it can be argued that in the absence of an insurable interest, the title company will not issue the policy and the Court should not and may not validate the interest, since it is ipso facto, uninsurable.
2. As the number of transfer of the “indebtedness” (the note) increases, the duty to inquire increases, and the more nervous the title examiner or transactional lawyer becomes.
3. Producing the note is universally accepted as law despite some court decisions to the contrary. In Florida and other states the forecloser must produce and tender the original note to the court in order to obtain an order from a Judge to sell the property, and without the note, the forecloser cannot submit a credit bid. So even if the Judge lets the case go through, the sale can be attacked as being no sale (Void, not voidable) because the forecloser did not comply with the requirements of law to establish itself as the creditor.
4. Title insurance policies universally have an exception for the rights of the parties in possession. Presumably that means at the time of the transaction. So if the transaction was are financing (which accounts for more than half of all mortgage transactions, the party in possession is the homeowner. The argument can be made that the title carrier made the exception — and that assuming they are experts in title — that exclusion should be used in any litigation of the parties regardless of whether the issue involves the title policy. Thus the homeownerʼs rights include multiple affirmative defenses, counterclaims and cross claims which need to be heard in a hearing in which actual evidence is heard which means that actual COMPETENT witnesses must be heard to authenticate any documents proffered into evidence.
5. Any situation in which the named insured on the title policy is different than the instrument on record identifying the mortgagee or beneficiary results in an uninsurable interest which can be translated as non-marketable title. Hence the originated loan documents prove that the transaction was a table-funded loan in which the true lender was not disclosed. This means the original documents are fatally defective and cannot be cured without the signature of the borrower or a Court order which would require a hearing in which actual evidence is heard which means that actual COMPETENT witnesses must be heard to authenticate any documents proffered into evidence.
6. Only a creditor may submit a credit bid. If anyone else bids, the Trustee or clerk usually has no discretion but to issue a certificate of title (deed) which gives clear title to the grantee, which can either be the borrower or someone standing in for the borrower.
7. Title insurance is not a magic bullet. It does not prove the status of title.
8. Generally unrecorded instruments are not covered by title insurance. In Arizona and other states there is general acceptance of the idea that based upon statute and ATLA standards successors in interest to the debt do not need a new title policy. By inference this would mean that they are giving credence to the idea that the mortgage follows the note, whether the transfer was recorded or not. But upon questioning the experts who delivered the presentation agreed that as the number of transfers increased the transaction becomes suspicious and that the rule regarding successors was probably meant for single transfers.
9. A transfer by a corporation not in good standing in the state or states in which it is required to be registered may not transact business nor bring any judicial proceeding. Mere ownership of property is not considered doing business. But a pattern of conduct of transactions is all that is needed. If the entities (any of them) that are involved in the chain of title are either defunct or in bankruptcy, any assignment, allonge or other instrument is invalid. It can be cured but there are time limits on how long they have before they cure, and it may be that reinstatement may require a name change. After 6 months in Arizona the name of the entity that should have registered is up for grabs which means you can incorporate under that name. What you can do with that name is an interesting proposition that was not discussed.
10.Conflicts of interests apparent on the face of the document or otherwise known to the title examiner create a duty to inquire. Therefore, since the usual pattern is that these documents are created after notice of default and usually after the matter is in litigation and sometimes not until hours or days before a hearing in which the documents need to be produced, the matter is a question of fact that needs to be decided after hearing evidence which requires competent witnesses testifying from personal knowledge.
11.BOARD RESOLUTION REQUIRED: No officer may sign a deed without board resolution. It is possible that estoppel, waiver or apparent authority might apply in the situation where the complaining party is a bona fide third party arms length purchaser for value.
12.In Arizona the knowledge of the Trustee is not imputed to the Lender, but there is no reference or prohibition against imputing the knowledge of the Lender to the Trustee. The practice of ALWAYS substituting trustees instead of using the old one is a cover for the fact that the old trustee would probably ask some questions rather than simply follow orders and send the notice of default, notice of sale etc.

42 Responses

  1. “I’ve been saying over and over on this site that people must close their bank accounts to stop the influx of money toward the banks and refuse to pay taxes.”

    “…I won’t push anyone to go for it…”

    ???

  2. DCB,

    “I KNOW what they think and what they do.”

    Could I suggest that you know what they thought and what they used to do at the time, when laws meant something, fraud was being prosecuted, Glass-Steagall still existed and was enforced and America was thriving?

    My intent is to personally test the new system and change what I can change. Can’t do that without experimenting. What I don’t want is not try to engage into that fight because of others’ fears or others’ bad experiences. I won’t push anyone to go for it but i won’t allow anyone to stop me either. Imagine if a toddler learning to walk stopped trying after seeing someone else fall? Or after his first fall?

    But I do know that you mean well and i thank you for it.

  3. @ER
    “Where is your perspective, DCB?”

    I was with treasury for a few years and for decades in that tax business on private side. I KNOW what they think and what they do. I had nothing but your interest in mind—-i knew people that would not buy license plate renewals—etc etc —Its not like telling the clerk at starbucks that the food is to go–so save the sales tax….and your risk rises if you go online and talk about it

    if you think that the SYSTEM is contrived against you in arguing with debt collectors—you have just a taste of what its like to be on the receiving end of a govt prosecution. are you trying to get an early booking for a room at one of those camps???-

    you are an adult and I do not intend to dwell on it–

  4. DCB,

    Perspective…

    Have you hard of a weird, strange, hateful and… well, completely insane, foreign-born attorney named Orly Taitz, who’s spent the greater of the past 4 years going after Obama in every jurisdiction she can?

    So far, she’s not been deported, jailed, put in concentration camp or anything else. The loony is going after Obama! Hey, if she’s got free speech and can get away with what she’s been pulling, what is the likelihood of anyone going after me…? I’d say probably close to minus 50%…

  5. @DCB,

    With all due respect:

    1) That article is dated February 2010. Since then, we’ve learned plenty about the fraud committed by the banks, and there has been an infamous “settlement” condoning fraud nationwide. I bet there are more people refusing to pay today than in 2010, and with ample reasons.
    2) The fact that i state and declare what I’m doing doesn’t make me an “organizer”. What it does is simply confirm that, as far as i can tell, there is still a semblance of free speech in this country. I’ll use it as much as i can and want. i cannot control people’s fear and I won’t cave in to it!
    3) With all the budget cuts, past, present and future (except for the war machine… which is exactly what i am against!), there aren’t enough IRS agents to go after a lousy $2,500. And if they did waste money going after me, it would give me even more arguments against taxes!

    Where is your perspective, DCB? And please, please, please, don’t tell me that I bring attention to this site and put anyone in jeopardy. What NG is doing would be much more threatening to government than anything I could say!

    Perspective:
    1) Mandelman hasn’t been shut down; and man is the guy vocal!
    2) LL hasn’t been shut down. Talk about seditious!
    3) Have you read Matt Weidner? Still practicing, as far as i know.
    4) have you gone into sites such as Nesara? Take a look at them and you’ll see that many, many people are so fed up that it will have to blow. They ain’t coming after me. Nothing to gain from doing it.
    5) Matt Taibbi is alive and well. And so are Catherine Austin Fitts, Bill Black and Neil Batofsky. Who am I again?

    I know you mean well. But don’t forget that the ways to hell are paved with good intentions. I ain’t going to hell. And i sure won’t live in it either.

  6. ER take a look at this link re penalties—–also note they are sensitive about IRS bashing–it gets people to fly planes into bldgs—they dont like that stuff at all–take it seriously

  7. Because you are publishing your thoughts and advocating others to violate the tax law—-i think that is the bright line—just no upside to it

  8. DCB,

    What a worrier you can be. Why would anyone bother with such a small person as I? In the big scheme of things, I have very little importance. Don’t worry about me. I don’t. And it’s only money. We’ll have much bigger problems than that in a very short future.

  9. er—you are uttering sedition—-they will deport you citizen or not–or rather youl be happy to leave —-there is little worse you can state –that argument has been tested in vietnam era—-

  10. SC,

    Your solicitude is appreciated, thank you. I’ve been debating whether i was going to make a big, public stink about the IRS. It’s not the amount but rather the principle of it: I don’t want to pay taxes when 53% goes directly to the war machine and the rest is given to the banks. Call me picky…

    And, unlike many, I put my money where my mouth is.

  11. I agree with DCB, you should file your income taxes ER. You will get penilized out the wazzu. If you dont pay them they can and will put a lien on everything you own.

  12. DCB,

    Here are a few cases, among which the Davies case I brought up earlier. I believe the case is still on appeal. What’s interesting is the complaint which names everybody and his brother. Actually, this link is pretty good overall. The case is halfway through that long list.

    http://chasechase.org/cases.html

  13. @DCB

    Well, it’s Davies V Deutsche Bank, and it’s in CA—not sure what you can find by Googling it at this point. Looks like that link doesn’t work anymore.

  14. that link does not work for me—–do you have the full case name and ill goodle it

  15. be careful ER——irs is mean enough with penalties for non-filing–but they might call it tax protesting if you advocate others diregard rules—-you dont want two fies burning if you can avoid it

  16. homeowners end up forced to disprove what plaintiffs allege

    Yes the note holder is entitled to presumption of authority –as ;long as they present the original–but note maker must offer up some contravening evidence to shift the burden back to the collection agency

    i think you can get to a similar result your way–by demanding presentment and examination—but id like to see the case for that grounded in UCC—so its easier to state a general rule –UCC being 50 state

  17. @enraged—
    YAY! FINALLY you will ignore me—please stick to that promise this time. That would be truly heavenly.

  18. who is davies

  19. Enraged. Yes, I am “Attacking” and seeking QT. That however, isn’t enough to stop the parties from attempting to foreclose.

    Even if they do I still have a case in court where I will hopefully win and get the sale overturned if they do foreclose. I am seeking sanctions and everything I can.

    I would honestly go for a MOD if it was good terms. I know I’ll get blasted by most for some but I’ve been there over a decade. My kids were born there and I’m not willing to roll the dice, but I’ll continue to fight as long as I have to…

  20. SC,

    It’s like commercials on TV. At the beginning, it irritates the hell out of you. Then, you realize that it is a pretty good way to learn the language: it tells a story, they write the words and you hear them said. I tell people: watch TV. Watch the commercials and repeat them along.

    Then, you get irritated again and you stop watching for a while. You get over it. You restart watching. Goes in cycles. That’s the same thing with her. It irritates. Then you start laughing and you ignore it while other people get ticked. Then, out of the blue, she has a hair across her constipated butt and attacks out of nowhere. You snap back and re-becomes irritated. I finished that cycle a couple of hours ago. Now, I don’t care. In fact, I am marveling at the thickness. You have to admit: that thick can’t be faked, it is beautiful!

    And she can repeat it over and over and over: DB still got her money and her house. Let if go.

  21. She will never get it … The refinaces were refinancing unsecured debt and securing collateral. You know … YOU SIGNED THE HOMESTEAD EXEMPTION WAIVER….. i.e…. you pledged you home. Give it a Friggin Break Already!

  22. “…Here is what we are discovering:

    Those “refinances” can be traced back to Freddie/Fannie charge-offs — where collection rights were sold, and purchased by stated Mortgagee and/or Servicer — with insurance funds.

    Those refinances are NOT secured loans.
    They are only reaffirmation of the debt collection rights.

    I am even finding this in PURCHASE of home — whereby the new purchaser took on the default debt (false or otherwise) of the prior owner (without knowing that this was the case!).

    We are finding that this is HUGE.

    No one is discussing this because no one is aware.

    Freddie/Fannie have all records, but REFUSE to divulge.

    This is why we are all dealing with debt buyers. With each refinance, only servicing to the collection rights changed. However, refinances were PRESENTED as a valid mortgage refinance, which it was NOT.

    The actual debt buyer, for whom the servicer services — is undisclosed.

    Why BK is important, is to show that the debt is unsecured. Nothing more than credit card charge-offs, which can be discharged in BK.
    What you are challenging in BK is the status of the “debt” — secured v unsecured.
    In addition, there are actions for fraud in the origination of the false refinance.
    This is not discovered until the COMPLETE money trail is traced — including all charge-offs, insurance collected, and that pay of all REFINANCES, were fraudulent.

    No money in any refinance ever reached the prior party.

    This is what happens in debt collection. Only servicing of collection rights changes.

    Once people get this, the consequence is BIG.”

  23. SC,

    I am not referring to property taxes. By all means, pay your state and real estate taxes: you live there. Protect yourself. Don’t pay the IRS. Those are the Taxes i keep referring to. Still haven’t done my return for this year.

  24. ER, Your situation with the property taxes do not necassarly apply to all states. I would have to disagree (in my case) to stop paying the property taxes or to let them pay them … Only opens the door for a lien. We have enough slander against our titles ….

  25. Absalutely Enraged! Just dont expect them to comply … they dont comply with anything other than their own conformity. I’m waiting to see if that 1 million $ fine is going to be worth the risk. HMMM

  26. from ANON:

    “Neil is right about the judges and — about the production of the entire loan receivables account. But, he needs to extend that request to production of documents and receivables, and all records, prior to the refinance in question.
    He needs to GO BACK to understand why the REMICS were not funded with anyone’s “investment” cash, because the debt receivables pass-through were simply pass-through of collection rights to false default debts.
    He needs to understand the status of the loans — when they refinanced — or when they purchased a home via a subprime/ALT-A loan. And, if new purchase, may even need to go back to the prior owners records.

    The problem you deal with in court, is the Statute of Limitations. However, this is equitable tolling for fraudulent concealment. Discovery in court is difficult — you must do your own work. Most courts will not even allow any discovery as to the ORIGINATION of the current refinance in question. And, that is where he is right as to the judges.

    How to get around — go and get all records — all documents — everything you can — as to what happened before the subprime refinance/new purchase in question.
    You need to go to title agency and get their records. All checks, all discharges, all satisfactions, and you need to get GSE records. Will the judge allow? Very difficult. But, if you are astute at looking at past records, you will have undeniable evidence of fraud.
    Fraudulent Concealment. Best case in court.”

  27. DCB,

    Look: Shadowcat sued and won. Hman appears to have sued and won. Davies sued and won. Now, look at the people who were sued, are fighting from a position of defense and have been embattled ever since.

    Think about it: you get a ticket and you go to court. Does the cop have to come up with his evidence or is the presumption against you right off the bat? The whole system is taught a certain way. The reality of it is opposite. Even in general and professional liability cases, the plaintiff had a leg up. And have you noticed how much easier it is to find experts standing for the plaintiff than for the defense? Why? because of that knee-jerk presumption.

  28. DCB,

    That’s what I did. I filed against the servicer and then, I stopped paying. As an attorney, you should remember that judges (and people in general) all tend to have that same knee-jerk reaction: “The plaintiff filed. People don’t file unless they believe they have been wronged and they have evidence to support it. Therefore plaintiff’s case must be strong enough to warrant a lawsuit.”

    That’s what homeowners haven’t understood: when servicers file first, there is a presumption that they have the goods. That bias is hard to overcome for any defendant and that’s one of the main reasons homeowners have lost so often: 99% of the time, they are on the receiving end. That story of “plaintiff has the burden of proof” is often just that: a fairy tale no one really believes and abides by. Otherwise, judges would systematically force the plaintiff to show proof. You know it doesn’t work that way. You know homeowners end up forced to disprove what plaintiffs allege. That bias is real!

    The perception was established the minutes the lawsuit was filed. Become the plaintiff and servicers won’t get away with as much any longer. That is echoed by Mark Stopa, Tim McCandless, Max Gardner, Jeff Barnes, Matt Weidner and all the big names of the who’s who of foreclosure.

    I’m not making up anything.

  29. Stop paying those bills and use your money to pay for the lawsuit. Or… keep paying, get washed out and become a casualty of this situation. It’s still everyone’s choice. And for those who would rather cave in to fear,

    Ok ER so please flesh this out? what would be the main points of the suit, sufficient to prevent getting a counter for sanctions if your complaint as filed and amended falis on motion to dismiss?
    You are filing a complaint rather than defending on a foreclosure filed action.???

  30. “I think there game is to get you to blow through your savings until you can’t afford to fight anymore and eventually they win.”

    That’s exactly it. People know it and implicitly accept it. Otherwise, they’d be taking action. The game seems to play completely differently when people sue the banks first. I’ve been saying over and over on this site that people must close their bank accounts to stop the influx of money toward the banks and refuse to pay taxes. They don’t and they don’t go on the attack either. Better yet: people keep paying their mortgage, student loans, credit card bills, etc. and telling each other horror stories of fema camps, jail, prosecution and the like.

    Consult and attorney. Stop paying those bills and use your money to pay for the lawsuit. Or… keep paying, get washed out and become a casualty of this situation. It’s still everyone’s choice. And for those who would rather cave in to fear, don’t complain if the situation turns out exactly as you knew it would.

    Hman,

    Do you have any possibility to simply quiet title? Since you have a win under your belt, it would seem to be the next step, no? You seem to prove what I’ve said all along as well: it is much easier to win by going on the attack. Shouldn’t you for one last time?

  31. AS to # 9. I posed the question sometime ago about reincorporating under a defunct lenders name and recording a lien release. I was advised it was mortgage fraud, I’d go to jail etc…No different than what they do under MERS, but the HO has to fight fair or go to jail. Even the foreclosure defense attorneys get slammed by the court systems most the time.

    I ended up suing my defunct lender as an alternative. Not giving any legal advice just stating the facts. Even though I won it didn’t stop the MERS monster from recording an assignment of mortgage from the defunct lender who I had already defaulted in court.

    Since then they’ve tried to sell my home multiple times already. I really don’t know what will stop them. I’ve got letters sent out to everyone and agency. I think there game is to get you to blow through your savings until you can’t afford to fight anymore and eventually they win.

  32. knock knock .. Anybody Home? knock knock .. Andybody Home? knock knock … Hellooooo””” Anybody Home? I Guess not … looks like she just abandoned the property and some theif came in and stole it already. Poor Thing …. Must have Bitten Off more than she could Chew.

  33. Thus the homeownerʼs rights include multiple affirmative defenses, counterclaims and cross claims which need to be heard in a hearing in which actual evidence is heard which means that actual COMPETENT witnesses must be heard to authenticate any documents proffered into evidence.

    Does this include the Note–if so are there some good authoritative state supreme court cases sayoing so?

  34. “…this does not have to do with surety and patents. It will eventually be shown that the fraud in the mortgages and refinances was that they were not mortgages or refinances at all. They were simply a “personal loan” with a distressed debt buyer debt collector.”

  35. See… Who’s Right Now? DEMAND PERFORMANCE! They cant get it up anymore … you need balls to do that. *Snorts*

  36. Beware … B.I.N.G.O. can not Perform, BoBo could not Perform. Why you ask …. they lost their Balls!

  37. B.I.N.G.O. was his name Bo.

  38. Neil can you please comment on this with regards to foreclosures:

    Federal Reserve’s Rule, 74 Fed.Reg. 60143 (November 20, 2009) -Final Rule at 75 Fed Reg. 58489 (September 24, 2010), definition as to creditor under the TILA, 15 U.S.C. sec. 1641, et seq. 15 U.S.C. sec. 1641, et seq.

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