Banks Hedging Their Bets on Wrongful Foreclosures

13 Questions Before You Can Foreclose

foreclosure_standards_42013 — this one works for sure

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The selection of an attorney is an important decision  and should only be made after you have interviewed licensed attorneys familiar with investment banking, securities, property law, consumer law, mortgages, foreclosures, and collection procedures. This site is dedicated to providing those services directly or indirectly through attorneys seeking guidance or assistance in representing consumers and homeowners. We are available to any lawyer seeking assistance anywhere in the country, U.S. possessions and territories. Neil Garfield is a licensed member of the Florida Bar and is qualified to appear as an expert witness or litigator in in several states including the district of Columbia. The information on this blog is general information and should NEVER be considered to be advice on one specific case. Consultation with a licensed attorney is required in this highly complex field.

The need for continuing pressure on state and federal legislators who are relentlessly pursued by Bank lobbyists has never been greater.  Anyone who cares about the state of our economy and the state of our justice system needs to be writing and calling state and federal legislators as well as state and federal agencies to oppose these naked attempts to seal the deal against the homeowners.

Anyone who thinks that our falling bridges and decaying infrastructure is going to be fixed without fixing housing is dreaming. Both the tax revenue and the potential for private investment are severely diminished by the failure of this government and governments around the world to take actual control of the situation, return wealth to those from whom wealth was stolen, and recover taxes from those who have failed to report and pay taxes on transactions that were conducted in the United States but never reported in any detail as to the method utilized to create “off balance sheet” and “offshore” transactions.

Michigan homeowners in foreclosure would have less time to save, sell home under new proposal

In Michigan the proposal put forth by the banks would extend the time that borrowers could contest an impending foreclosure but shorten the time that borrowers could attack a wrongful foreclosure seeking monetary damages or to overturn the fraudulent auction sale awarded to a party who submitted a credit bid but who was not a creditor.  It is a tacit admission by the banks that they are doing well before a foreclosure judgment is entered but they are afraid of the consequences after the sale.

The fact that they were not a creditor obviously also brings in the issues of jurisdictional standing and whether they have any potential rights to initiate foreclosure. The confusion here is closed by rulings in many states which seem to indicate that almost anyone can initiate a foreclosure proceeding. The mistake made by both pro se litigants and attorneys for homeowners is that they concede the rest of the case once a decision is made that a non-creditor can initiate foreclosure proceedings.

In the initial phase of litigation those early motions will obviously have an effect on the momentum of the case in favor of either the banks or the borrowers. But the fact remains that if the party initiating the foreclosure was doing so in a representative capacity, or if they were doing so in their own name lacking any history or facts supporting their assertions of being a “holder” then the point needs to be made to the court that there is no creditor based upon any evidence in the court record who can submit a credit bid.

The court is presented then with the choice of either dismissing the case because of lack of jurisdiction over the subject matter and potentially lack of jurisdiction over the parties or entering a final order or judgment allowing the foreclosure to proceed but stipulating that the party conducting the auction may not accept a credit bid  in the absence of uncontested proof of payment, proof of loss and proof of ownership of the loan receivable. This step has less far been ignored in nearly all cases of foreclosure litigation throughout the country. It is time to invoke it.

The initiative in Michigan reflects the tacit admission of the banks that while they can still easily prevail in pre-judgment motions, they are highly vulnerable to enormous liabilities after the sale of the property at auction or at a closing table. The fact remains that they must show a canceled check, wire transfer receipts, ACH confirmation or check 21 confirmation in order to establish the loss;  in addition, they must show the same facts for each and every predecessor in the alleged securitization chain which we already know has been falsely presented.

 By hammering on the money trail, you will be educating the judge as to the difference between the actual transactions in which money was exchanged or in which consideration was exchanged and the paper  documents that refer to transactions which never actually occurred. Each transaction requires, for enforcement, and offer, acceptance and consideration. If you closely examine the documents used by the banks in the falsely presented securitization chain you might find an offer but you probably won’t find acceptance and you definitely won’t find consideration. The same holds true in the origination of the loan wherein the designated payee and secured party had nothing to do with the funding of the original loan. It is all smoke and mirrors.

The point needs to be made that if the judge is all fired up about whether or not the borrower made payments that the attorney representing the homeowner agrees that payments are an important issue which is why he is requiring the other side to present proof of their payments to creditors and their receipt of payments from parties other than the borrower. Your argument is obviously that either payments matter where they don’t. It should be pointed out to the judge that a double standard is being applied if the borrower’s payments are at issue but the so-called lenders’ payments and receipts are out of bounds. The point should also be made that rather than arguing about it, if there was no defect in the money trail and if there was therefore complete compliance between the money trail in the document trail, the party initiating foreclosure should be more than anxious to display the canceled check and end the debate.

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38 Responses

  1. There is always a cancelled check? Funny I don’t have that cancelled check in my possession. I should have received that cancelled check if the Issuer “negotiated” with my Security. Banks don’t have the authority to “negotiate” with our Securities unless they notify us of a change to the original contract. They need our consent. Where exactly on the mortgage/note did it say we may negotiate or convert your Securities into something else without notifying you of an Alteration?

  2. @Carie – you are wrong – there is always a cancelled check and it is negotiated as follows:

    “Well Fargo Bank, N.A., for various investors”

    For anyone who has a loan not serviced by Wells Fargo Home Mortgage / ASC – simply insert your local NA that is now merged into the parent, or will be shortly.

    BAC has sure lost alot of the Fannie servicing since January.

  3. Poppy—that reminded me of what a lawyer once told my husband when he was a witness on a case…he said;

    “That was excellent—if you are willing to lie on the stand you can make a LOT of money…”

    Criminals with a free pass are in charge of all of it.

  4. The banksters are stealing poppy…..these are felonies they are committing. There is no law in equity for a non existent contract. One act of fraud in a contract, destroys a contract.

  5. @ Jim

    The non-judicial foreclosures are difficult. Almost a free pass to steal your house. Having been through the wringer here in NC…a magistrate handles these, from what I can see with little experience or paperwork required. They come to the hearing with “counterfeit” documents. The entire non-judicial process is biased.

    The only saving grace in it is the 10 right of appeal and you need to get on it quickly. In my case they send me a letter, date of hearing and told me to call the day before to confirm. I called at 4:50 pm, EST on June 30th 2009 for a hearing scheduled on July 01, 2009 and they told me, it was postponed to August 20, 2009. Well, they lied…the hearing was held, my signature was forged on the paperwork, we have a copy and a judgment was entered against me. It gets better; they sent out the notice of the judgment on July 11, 2009 11 days after my right of appeal was lost. The reason I am sure of this, is because the dates of these specific mailings, were manual removed from the envelope. So trust nothing and check and recheck every envelope and piece of paper.

  6. Time to stop cowering to these crooks and demand answers from the Treasury Department, who allowed the Federal Reserve Banksters to rob us and are now denying us our legal rights to defend our properties with or without an attorney.

  7. All pertinent questions regarding what to do about MORTGAGE & TITLE FRAUD BY THE BANKS should be directed to the U.S. TREASURY DEPARTMENT/DEPARTMENT OF JUSTICE. Ask them why there are no attorney’s fighting the mortgage fraud.

  8. The DOJ is part of the Treasury Department so you can ask to be connected to Preet Bhararra, the U.S. States Attorney when contacting Treasury Secretary Jacob Lew’s office.

  9. As of the past couple of weeks judges in Mexifornia are willing to be accessories after the fact of felony false filing and federal fraud for HAMP payments to non-existent participants by suppressing discovery of lenders’ business records. Court even ignored recent Appellate decision that assignments after original lender are hearsay because that was the only defense banksters put up in the case. Is that really worth losing 9% of their retirement over? (CalPERS investment in MBS’)

  10. Bilaya…. call the Treasury Department and ask them why they are not defending your property rights in court. The link is below.

  11. The American people are in a hell of a shitpile mess from listening to communist propaganda from the likes of you christine and your disinfo agent cronies in the media.

  12. Save your communist propaganda for your cronies Christine. I don’t give a rats ass what you think. This is not about you.

  13. Great Neil but where are the lawyers willing to step up ?
    I’ve been following you since 2007 & also pleading for exactly what you discerned with no avail.
    I am willing to fight but do not have the resource & there are no defenders in CA except those willing to collude with the banks even the talk shows like ask Steve for free here in the CA Sacramento & SF Bay Area
    They just want modifications not worth the paper they are written on once my rights are established by proper law
    Any help ideas out there?

  14. Hey everyone I wanted to share some info that might help some battling Nationstar. Google Nationstar 23 state foreclosure halt. There are multiple articles stating that they recently stopped foreclosures in 23 states because of pressure from regulators. I am uncertain which states but just thought I’d share.

    No one has formally charged Nationstar with a crime or wrongdoing but in its own prospectus, the company admitted that it could not assure that future inquiries would not affect its ability to foreclose loans.

  15. A unanimous U.S. Court of Appeals for the First Circuit ruling in Young v. Wells Fargo Bank N.A. revived Susan Young’s District of Massachusetts case.

  16. A federal appellate court ruled that Wells Fargo Bank must face a Massachusetts consumer protection law claim that entails possible triple damages, plus additional claims, for its conduct toward a homeowner under a federal loan modification program.

  17. Moron,

    And if “we The People” relied on you to explain or fix anything, they’d be in a hell of a doodoo… Go back to St. Kudlow. That, apparently, is at your level of (mis)understanding.

  18. Moron,

    1) I didn’t address you
    2) Java asked a very pertinent question for which there is a very pertinent answer
    3) If you don’t get it, shut the F up.

  19. WE THE PEOPLE -v- THE U.S. TREASURY DEPARTMENT ….. We demand our titles & stolen wealth be returned to us.

  20. The foreigner’s are buying up our securities for a song. Time to sue the Treasury Department.

  21. Lawyer Bonanza in California


  22. There is no making sense out of this Christine…it is simply grand theft larceny by felons…. contact the Treasury at the link below and demand answers as to why they failed to do their jobs and defend the Public Trust.

  23. All of our queries need to be directed to the public trust for the American people money & property…

  24. Java,

    Simply answer: whenever there is any equity, the bank makes it a point to eat it all up with fees and expenses. The reason is simple: since the mortgage was never securitized in the first place, the reimbursement would have to come out of banks’ pocket and be recorded on the books. If they were to issue any equity payment, they would, implicitly, be admitting that there was no securitization since, otherwise, they would have to go to the “investors” to have that payment processed.

    I believe Garfield touched upon that a few years ago, when it became obvious that banks were willing to let $200,000 houses go for a tenth of that. The reasoning behind it is the same: banks cannot afford to show any money coming out of their coffers lest they would be admitting to the ongoing fraud.

    Same goes for houses they could sell for more than what is owed on them: they don’t want to. Otherwise, they would have to issue a refund check to investors and since there are4 none, they can’t afford to be viewed as having made and pocketed money.

    Everyone knows what is going on and no one wants to deal with it.

  25. It may be time for every American to take a trip to the TREASURY DEPARTMENT & demand answers as to why they failed to secure the public trust….?

  26. I would ask them for a receipt carie or I would file a lawsuit. No receipt means all those payments they took from you were stolen. They should all be hung.

  27. May I add that attorney was an ancient free & accepted freemason.

  28. All my checks for my “mortgage” went to “the servicer”—and nowhere else. “The servicer” is the name on the 1099A. “The servicer” is the entity name as “Lender” on the 1099A. There is no real creditor. Period. “The servicers” keep all the money. “The servicers” are third party debt collectors of unsecured debt.

  29. As for the judges …. How about a look see into their investment portfolios…. are they on If not, they should be because WGN NEWS in CHICAGO reported they are all politically appointed or buy their seats for $30,000.00.

    An attorney told me a while back….don’t even go to court, don’t even answer the complaint. There has been a coup de tat here and what they want is complete communism. He also told me if the economy gets worse, it will be Anarchy and he does not even want to be here to see this.

    Nice huh? Needless to say, I chose to fight these commie bastards because that is the right thing to do. Not fighting is for cowards. Not fighting will put you on their train to the FEMA CAMP IMHO.

  30. Obama is an investor in this scam to steal it all from us carie so I really don’t give a damn what he says or thinks.

    I agree with you a man…. they are all in the commie Conservatoriship…. They made that Conservatorship shit up …. that scheme called Conservatorship is exclusive to the United States. The politicians are all rat bastards who would make John Gotti blush.

  31. javagold….I spoke to an attorney a couple of years ago about the loan mod scam. I told him the U.S. TREASURY denied me the loan mod and the options they gave me were unacceptable. I told him we have a lot of money invested here. He told me, too bad, you lose. Needless to say, he really ticked me off and got me fired up to get to the bottom of this scam.

  32. There is no “canceled check”—and the judge doesn’t care.

  33. Obama uses the same excuses and tactics the banksters use. Eric holder is gonna investigate Eric Holder.


  34. The judges are investors that is the problem all throughout this fraudclosure scam. Wall Street made sure to create this massive conflict of interest between everybody. The people in the public sector jobs are compromised. How else could the banksters have gotten away with stealing a gazillion dollars from us and the hijacking the treasury?! Elementary ….. THE PUBLIC SECTOR ARE ALL INVESTORS….EVEN MANY IN THE PRIVATE SECTOR ARE INVESTORS….MWAHAHA….Little do they know these crooks are stealing from their pockets in the private sector as well because of the rising prices of everything. Yes…those worthless mortgage bonds are nuclear and they were intended to destroy everyone in the end.

  35. I always was told that when a home is foreclosed any additional equity goes to the homeowner and yet I have never met one person who was foreclosed on , who received one penny of their dtolen equity.

    Why is this ????

  36. Steve Cohen to his cronies in Washington……..I have a new hedge fund model….. We will use it to destroy what’s left of the free markets…We will call it SMAC CAPITAL…Why steal billions when you can steal trillions? Mwahaha….Mwahaha….

  37. Oh we are seeing judges all right – they just are not listening. The prevailing sentiment is “you have a debt you did not pay.” They do not want to listen to the extenuating circumstances and fraud that brought about this freaking mess in the first place. In Maryland robosiging foreclousre mill attorneys (the same ones who got fired by Fannie and Freddie) who presented fabricated documents and forged documents into court as “evidence” got a slap on the wrist while thousands lost their homes. One female judge even ratified a foreclosure sale that was brought about by fabricated and forged documents – which caused a bit of a controversy at the time but the foreclosures are still going through. WTF? Why?

  38. why doesnt someone ever discuss nonjudicial foreclosure A to Z.

    This blog only seems to discuss “the judge.” Most homeowners never see “a judge,” as their houses were stolen in the blink of an eye by the pretenders who “lost the note” after filing a forged assignment.

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