SEMINAR: Evidence, Expert Reports and Testimony

I am finally giving in to the requests that I do another workshop. It is a two-day workshop on evidence, burden of proof and what really persuades a judge. Lawyers and laymen have been using our title and securitization reports, expert declarations and consultations. But the results are spotty because of lack of knowledge — how to use the information to gain an advantage and control the narrative in court proceedings. Of course I am going to present some suggestions on pleadings and motions — especially a motion for summary judgment filed by the homeowner (an idea promoted first by Mark Stopa, Esq.). But my main emphasis is going to be the use and presentation of facts and opinions from analysts and experts.

The first thing you need to know about the cases where the use of those forensic reports has been successful is that they can only be introduced as presenting facts. For example the analyst might find that the designated creditor in the foreclosure action is a trust whose beneficiaries have been paid on an on-going basis from the start of the loan to the present, despite the fact that the homeowner has stopped paying. It is a fact if you have the distribution report. It is a fact that the prospectus or pooling and servicing agreement calls for those payments and calls them “Servicer payments”. But it is an opinion and a conclusion of law that there is no default and therefore the action should be dismissed.

The way the facts are presented makes a big difference too. If your analyst (fact witness) states that there is no evidence of any payment due but not received by the creditor, then he can state that as a matter of fact, the notice of default is based upon allegations of missed payments that are in conflict with the distribution reports and he or she can show the judge the two documents. If he shows that the securitization documents provide for the Servicer to make those payments regardless of whether the homeowner is paying or not, that corroborates the infrastructure that protects the creditor from any actual default.

The expert is there to give opinion evidence, which is to say that the expert states his conclusions. But conclusions are worthless unless they are persuasive. And they are not persuasive unless the facts are presented in a manner that leads the average judge to come to his or her own conclusion that there is no default, despite the fact that the homeowner stopped paying. The expert can explain that the mortgage deal is still current and that the Servicer has loaned the money to the borrower in a new transaction. The expert can demonstrate this by showing that the advances are not recoverable from the trust beneficiaries who were paid. Hence the legal conclusion, argued by the lawyer and suggested by the expert is that there is no basis for a foreclosure action because the new liability to the “Servicer” is not secured by the mortgage or any other instrument in which the home is collateral for the debt (if such a debt arises by operation of law).

The above example is by no means a silver bullet. There are many factors to consider when setting up such a defense. If possible it should be one basis for denial that there was a default — without inadvertently admitting that the note and mortgage are valid enforceable instruments. If you come into the case late, you may wish to file a motion to amend the affirmative defenses and answer or a motion for summary judgment.

The primary focus must be on the money trail, which is why you need analysts and experts because the pretender lender is not going to give you this information and in many cases will deny that the loan was “securitized” even when the reverse is true, although hidden behind a private label. Reports and analyses of documentation simply don’t cut it. They might suggest the possibility of illegal conduct, but at the end of the day, few judges are going to dismiss a foreclosure because of documentary defects — especially on the rocket dockets. But when you tell them your client never received the loan from anyone in the securitization cloud, then you stand a better chance in discovery and at trial forcing the foreclosing party to prove their entire case.

My focus at the seminar will be how and when to use analysts, forensic reports and expert testimony (which can include hearsay), the way to establish credibility, the way to present a persuasive case, and the knowledge that every trial lawyer, investigator, analyst and forensic auditor must have before signing an affidavit or giving live testimony.

Details on the seminar will be announced shortly. It will be in South Florida.

78 Responses

  1. RE: “due on sale clause” … 🙂

  2. marilyn – no I don’t, but it sounds interesting, so I’ll look into it. I do know these guys in the club all share information and strategies, with things like “white papers”.

  3. kc @ 11:30 yesterday – interesting stuff. There is a restraint on alienation in collateral instruments generally. It’s the ‘due on sale clause’. Other than that, the other part which concerns and informs us as borrowers, and I say it’s significant, is the last part about effective real covenant (and equitable servitude) as it applies or may apply to MERS in the dot.
    I don’t believe an agency is created in the dot, first of all. But even if it were, I also believe no one may appoint his agent as anyone else’s, not even by way of a ‘covenant’, servitude, restriction, or condition in the dot, which has been attempted here. It doesn’t comply with the statute of frauds if for no other reason than MERS doesn’t accept the appt) and it’s clearly against (“violates”) public policy to hide the name of the party with an interest in people’s homes. Whether or not it’s
    “too vague” is another debate, but I say a real debate would most accurately end in a finding of no agency, but more of a novation (only more because the lender was not named as the original ben TO novate (a substitution of one or both parties), something I think is fatal – with all its consequences, including that no dot naming MERS as the orig ben has been perfected by recordation. Either that or there has been original bifurcation of the mortgage loan deal (or contract). I don’t want to go into it, but you saved me some work – thanks.

    “1.It must be enforceable. To be enforceable it must not be too vague, it must not violate a statute or the constitution, it must not violate public policy, and it must meet the requirements under the statute of frauds.”


  4. John Gault

    Do you know about the National JUDICIAL COLLEGE in Reno Nevada this is why no one is winning against the banks. THEY TRAIN JUDGES especially how to deal with the pro ses THEY PROBABLY KNOW YOUR NAME AND THE RESEARCH YOU DO.


  5. Dissenting Opinion Simply and Correctly Interprets Schwartzwald
    SRMOF Trust v. Lewis
    Given that a note and mortgage are inseparable and that a party who merely holds the mortgage suffers no injury, I do not believe the Supreme Court intended to imply that possession of the mortgage alone is sufficient to establish standing. Therefore, as indicated above, I would have remanded the matter to the trial court with instructions to dismiss the complaint pursuant to the Supreme Court of Ohio’s decision in Schwartzwald.

  6. Christine

    Don’t open your mouth about what you think void ab initio means without knowing . The term void ab initio means to be treated as invalid from the beginning.

    Even Astoria’a new attorneys came into court telling JUDGE SCHLESINGER ITS INDEMNIFY INDEMNIFY INDEMNIFY

  7. Anytime anyone sees posting by this CHRISTINE or ENRAGED
    know here is a person who final purpose is cheering for the enemy

    lets hear you sing God Bless America Christine

  8. CHRISTINE said

    christine said

    Not only is this country finished but so are you. Again, deal with it and go make something creative of your time


  9. Christine
    Again you are giving out false information to many.
    All those attorneys missed the class THAT day if They don’t know the case ELLIOT v. PIERSOL.

  10. “Christine
    Finished talking to you.”

    I hope so, ML. I really do because whatever effort I make to ignore you, it just won’t work: you have that unhealthy need to call on me all the time, day in, day out, even when I don’t address you. Don’t expect me to keep quiet until you ignore me for good. And yes, ML, this country IS finished. Fact of life. Deal with it. Any attempt to stop people from remarking on it is futile, counterproductive and… once again, demonstrative of how intellectually deficient, self-absorbed and self-centered you are.

    Not only is this country finished but so are you. Again, deal with it and go make something creative of your time.

  11. Christine

    You are not a judge on the US Supreme Court.
    I and all of us have the US Constitution on our side.

    Elliot v. Piersol, 1 Pet. 328, 340, 26 U.S. 328, 340 (1828):
    Under Federal law which is applicable to all states, the U.S. Supreme Court stated that if a court is

    “without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void; and form no bar to a recovery sought, even prior to a reversal in opposition to them. They constitute no justification; and all persons concerned in executing such judgments or sentences, are considered, in law, as trespassers.”

    [Elliot v. Piersol, 1 Pet. 328, 340, 26 U.S. 328, 340 (1828)]



    Black’s Law Dictionary, Sixth Edition, p. 1574:

    Void judgment. One which has has no legal force or effect, invalidity of which may be asserted by any person whose rights are affected at any time and at any place directly or collaterally. Reynolds v. Volunteer State Life Ins. Co., Tex.Civ.App., 80 S.W.2d 1087, 1092. One which from its inception is and forever continues to be absolutely null, without legal efficacy, ineffectual to bind parties or support a right, of no legal force and effect whatever, and incapable of confirmation, ratification, or enforcement in any manner or to any degree. Judgment is a “void judgment” if court that rendered judgment lacked jurisdiction of the subject matter, or of the parties, or acted in a manner inconsistent with due process. Klugh v. U.S., D.C.S.C., 610 F.Supp. 892, 901. See also Voidable judgment.

    [Black’s Law Dictionary, Sixth Edition, p. 1574]

  12. ML:

    Don’t take it from me but Bob G., Jan Van Eck and many other attorneys have told it so often, it isn’t even funny any longer. You’ve litigated that thing so much and in so many jurisdictions that you are finished with it. MOVE ON.

    For one thing, res judicata applies and banks will invoke it every chance you give them and obtain it: you’ve already litigated to death and non stop since 1998. For another, your rulings were deadly. No one can get past 2 different rulings qualifying your actions as frivolous, non meritorious and vexatious. If you want to find yourself in the loony house, keep at it. There’s a bed waiting for you at Bellevue.

    And as Bob said over and over, and I fully agree with him, there will come a time when judge Schlesinger will go after you for libel, slander and defamation and rightly so. In fact, I know for a fact that many people who read this blog are very close to tipping that judge off on what’s been written about her if it will make you go away.

    You are NOT getting back your condos. You are NOT getting money back. You are DONE, FINISHED, OVER. Move on!!!!!!!!!!

  13. TN
    I agree with you . Mine is crystal clear that it is an upside down ruling
    But how do you deal with a corrupt Judge?.

  14. TN
    did you read my 8:45 pm post Congress has the right to coin money but no state shall that is where the meaning of no state shall is found

  15. Christine
    Judge Schlesinger must have gotten a bit of money to rule against the US Supreme Court. They caught Sampson didn’t they?

  16. In common law legal systems, a contract is an agreement having a lawful object entered into voluntarily by two or more parties, each of whom intends to create one or more legal obligations between them. The elements of a contract are “offer” and “acceptance” by “competent persons” having legal capacity who exchange “consideration” to create “mutuality of obligation.”[1]

    Proof of some or all of these elements may be done in writing, though contracts may be made entirely orally or by conduct. The remedy for breach of contract can be “damages” in the form of compensation of money or specific performance enforced through an injunction. Both of these remedies award the party at loss the “benefit of the bargain” or expectation damages, which are greater than mere reliance damages, as in promissory estoppel. The parties may be natural persons or juristic persons. A contract is a legally enforceable promise or undertaking that something will or will not occur. The word promise can be used as a legal synonym for contract,[2] although care is required as a promise may not have the full standing of a contract, as when it is an agreement without consideration.

  17. Christine
    Finished talking to you. When anyone reads the Supreme Court Case of Elliot v PIERSOL they will know what a dodo you sound like since you are making up words and a ruling opposite to what the US Supreme Court wrote.

  18. So much blablabla and so little action… Yep. Front row seat alright.

  19. Some specific restraints on alienation in the United States include:
    Disabling restraints To be effective the grantor must sue the grantee for enforcement. The effectiveness of the lawsuit could prevent the transfer from being made. In addition, if the disabling restraint is found to be unconstitutional the restraint will not be effective.Promissory restraints If the promissory note is breached by the grantee, the grantor may sue for damages. Unlike disabling restraints, the effectiveness of the lawsuit does not prevent the transfer from being made. However, the Supreme Court says promissory restraints are not permissible. The promissory note discourages the person getting ready to sell the property which is the same effect as the disabling restraint.Forfeiture restraints In the event of a breach the property returns to the grantor or the grantor’s heirs. The return happens automatically, hence the argument can be made that there is no state actions. However according to a constitutional argument the mere fact that the state recognizes the validity of an automatic transfer makes it a state action.

  20. Right from the horse’s mouth:
    “a voidable judgment has to have something done to it to make it void.”

    So she knows it. Like so many before her, she would rather come here, whine ad vitam eternam and attack and insult everyone who tries to put some sense into her than get off her butt and take action.

    The making of a true winner… Then again, pretty tough to get past “vexatious” in two different rulings and in two different jurisdictions. Those pesky court decisions do have a way of sticking to plaintiffs like a reallt bad smell.

    Group therapy ain’t what it’s cracked to be. Won’t do jack for those whose biggest ambition in life is to get pity ad nauseam. Besides, it’s been done so often, it’s pathetic.

  21. TN
    They don’t want to put me back in my apartments Even though Astoria Federal new attorneys stated its indemnify indemnify indemnify Fidelity Title does not want to indemnify and David Fiveson’s client has nothing but a sham title company that can’t indemnify either Fiveson’s client or Fiveson whoever the strawman is.
    There on and off mortgage is held by Bank of America It sure seems it was very profitable for Schlesinger to rule against the law,. Christine .

  22. tnharry – you might say that’s all dandy, but you still find the un-transferor able to enforce, just now subject to all affirmative defenses, including prior payment. Given that I’d hate to see us all have to rely on aff defenses, v something a tad more finite, I’m going to think about it some more. fwiw. Prior payment, even as an aff defense, may be an ‘absolute’ defense. I’m not sure. And of course the real rub is if the bankster himself took the note as a hidc – I forget the limited defenses available against a hidc (i’d have to look). Case law, if nothing else, would or at least might tell us whether or not, under any theory, one who has been paid and failed to deliver may yet try to enforce and is just subject to the defense of prior payment. I truly think not and I sure as hey hope not (and I was encouraged by that article). Maybe you’ll look into it? I have reading stacked up from here to next week.

  23. Re: State May Not Do this … ?

    A restraint on alienation, in the law of real property, is a clause used in the conveyance of real property that seeks to prohibit the recipient from selling or otherwise transferring his interest in the property. Under the common law such restraints are void as against the public policy of allowing landowners to freely dispose of their property. Perhaps the ultimate restraint on alienation was the fee tail, a form of ownership which required that property be passed down in the same family from generation to generation, which has also been widely abolished.

    However, certain reasonable restraints will be given effect in most jurisdictions. These traditionally include:
    1.A prohibition against partition of property for a limited time.
    2.The right of first refusal – for example, if Joey sells property to Rachel, he may require that if Rachel later decides to sell the property, she must first give Joey the opportunity to buy it back.
    3.The establishment of public parks and gardens, as was the case for The Royal Parks of London in the UK. These public spaces were created under such terms by the Crown Estate; which meant that these parks were held in perpetuity for the public to use.

    Some specific restraints on alienation in the United States include:
    Disabling restraints To be effective the grantor must sue the grantee for enforcement. The effectiveness of the lawsuit could prevent the transfer from being made. In addition, if the disabling restraint is found to be unconstitutional the restraint will not be effective.Promissory restraints If the promissory note is breached by the grantee, the grantor may sue for damages. Unlike disabling restraints, the effectiveness of the lawsuit does not prevent the transfer from being made. However, the Supreme Court says promissory restraints are not permissible. The promissory note discourages the person getting ready to sell the property which is the same effect as the disabling restraint.Forfeiture restraints In the event of a breach the property returns to the grantor or the grantor’s heirs. The return happens automatically, hence the argument can be made that there is no state actions. However according to a constitutional argument the mere fact that the state recognizes the validity of an automatic transfer makes it a state action.
    To be effective the restraint must be reasonable and the restraint must be the same as a real covenant or equitable servitude.

    There are six factors to determine if a restraint on alienation is reasonable:
    1.Type of price (fixed or not fixed; courts prefer non-fixed)
    2.Purpose: Is it a legitimate purpose, or not? (courts prefer legitimate)
    3.Equal bargaining power of the parties
    4.Duration (a time limit to the restraint is preferred)
    5.Limit to the number of persons to which transfer is prohibited
    6.A restraint that increases the value of property is more reasonable.

    There are five basic conditions that must be met in order for there to be an effective real covenant and equitable servitude:
    1.It must be enforceable. To be enforceable it must not be too vague, it must not violate a statute or the constitution, it must not violate public policy, and it must meet the requirements under the statute of frauds.
    2.It must touch and concern the land.
    3.It must be intended to run.
    4.There must be privity between the successive occupants.
    5.There must be notice of the existence of a real covenant/equitable servitude


    I went back to the NYS Appellate Division 1st dept for a final decision and the lst dept of the Appellate Division ruled we are not going to give you a final decision.

  25. tnharry re: “void” transfer. From what I get of the UCC, there is no transfer when there is no delivery (yeah, we all get that, right?) I also get that when one has paid for a note but not received it, he obtains a security interest both in the note and its coll instrument, if any. As to your specific question, which I take to mean no ‘late’ transfer to a trust because it can’t be done (void), I’d say that would be true if no one had paid valuable consideration for the note. But void is possibly a new situation (I don’t know -seems like it) pursuant to this particular law (trust law). So just now I’d stick with what I said – that the note is enforceable by no one, with one party perhaps retaining legal title and another who acquired the beneficial interest by his payment. I think the note is in no man’s land because of the bad acts of certain players (who must bear the loss, fwiw, which might be a lot). Of course courts want to consider equity, but they don’t get to imo when there’s another prescribed remedy, which in this case, devastating as it might be for some, is the return of the funds paid for the non-delivered notes. Where would that leave things, if the funds had to be returned (because any post-closing transfer is void)? On the borrower’s side of the mess, the bankster / supposed-to-have-been-transferor can’t enforce, at least as long as he retains payment for the note.** If he disgorges the money to its approp owner, maybe he can then enforce against the maker. Case law might be indicative of enforcement in their current state (and I believe it would find enf is not possible UNTIL…), but likely not as about these particular trusts with
    legal parameters by which others aren’t constrained.

    **the law may have to find that the investors’ payments and the inexcusable and lengthy delay in delivering has just plain paid the note, which imo subjects the banksters to full refunds and any damages, etc. (even so, I’d say the notes are still subject to the trust’s security interests). The banksters would be hard-pressed in alleging laches against the trusts, because that would be against their own since they’re all in bed together, or they might argue the trusts acted as if transfer occurred. But this is a case where equity cannot find done that which should have been done, even if it results in a “windfall” to someone. The really equitable and legally appropriate thing to do is make the guy who caused the problem bear its consequences. That’s what the law really says – he who cause the problem must bear the brunt.

  26. tn

    I was in front of judge Schlesinger to mark vacated the void ab initio judgments
    for her to do anything else is against the Supremacy Clause of the US Constitution.and any judge or anyone that uses a void ab initio judgment as if it carried any rights for title, for sentencing or whatever according to the law of the US Supreme court is guilty of treason..

    It came down to JUDGE SCHLESINGER RATHER HAVE THE MONEY THEN OBEY HER Oath to the Constitution.

    Why are the justices sitting on the US Supreme Court if a judge can ignore their decisions?

  27. SO DO SOMETHING. You were saying this same stuff 9 months ago. And im guessing 19 and 29 months ago too

  28. tn
    the justice at the appellate oral hearing said to David Fiveson “did the state court do it again when it came back to the state court “he didn’t know” The justice knew that is exactly what had to be done to get a

    to get around that problem the justice in the appellate court lied and changed the dates MY CASE WAS IN FEDERAL

  29. Everybody is going to court…

    I would suggest when addressing the instruments in your pleadings you use the wording …… “Void or Voidable”. It is a legal conclusion left to a Judge.

    JG.. in tnharrys statement.. (not nit picking it apart and missing the point . .. haha) … the end result is the same.

  30. Marilyn, I’m not saying it’s valid. I’m saying it’s of record until it’s vacated. Why haven’t you vacated it? Go do something instead of talking about doing something to your imaginary friends here

  31. tn
    anybody legally well informed knows a void ab initio judgment
    is of no value. if i wanted to put my Spiderlady outfit on and scale the wall of a Manhattan high rise I AM LEGALLY ALLOWED TO GO IN THAT APARTMENT. fORGET ALL THE DOTS, DASHES AND EVERYTHING ELSE THAT TITLE IS MINE.

  32. TN

    read Elliot v. PIERSOL


  33. christine

    what a void ab initio judgment is and that it is a nullity is written into the text of Elliot v. PIERSOL READ IT.

    it is the law of the land on jurisdiction

  34. But marilyn, even that void judgment is a judgment as far as the rest of the world is concerned until something is done to vacate it. If it’s of record, it’s facially valid

  35. Christine,


    a voidable judgment has to have something done to it to make it void.

    a void ab initio judgment is void from the beginning – a nullity.

  36. And who makes the determination that a transfer is void (versus voidable)?

    Not borrower, for sure. He’s been doing that for 7 years and gotten absolutely nowhere. It is a court decision. No court, no decision. Court with a bad attitude: adverse decision. Court without a well-articulated argument: adverse decision. Court with frivolous arguments: adverse decision. Court with non-meritorious arguments: you pay court costs. Court with frivolous argument: disbarment for attorney or contempt for pro se.

    Don’t like the idea of court? Change the system. This country is the only developed where going to court is a hoby. Oh Damn! No other country has suffered the number of foreclosures this country has.

    I wonder why…

  37. Excellent Question!

    tnharry, on January 14, 2014 at 7:30 pm said:

    John, doesn’t a void transfer simply result in no transfer so that the note remains with the named “lender” on the document itself?

  38. tn
    let me add -any business incorporated under the state has only as many rights as the state has. I


    Imbecile. Get a job. Be useful to someone.


    You never did. You gave her frivolous, non-meritorious and vexatious. Reread those opinions: it’s right there, black on white. Backed by 3, completely unrelated attorneys from a completely different jurisdiction. That ain’t a fight. That’s stupidity pushed to the extreme.

    And capital letters here don’t make it any better. Sane people lick their wounds, learn from it and move on. They don’t come to LL to shout their imbecility.

    Are you on retirement? Honestly, I don’t want to pay for it. My money is earmarked for tomorrow’s adventure. Not yesterday idiocy, pride and whatever subhumans display. John Wayne is gone and he ain’t coming back to rescue you. Thank God for that!!!

  41. I did NOT file a 60b MOTION ,i sought my motions pursuant to the US Supreme Ct case of Elliot v. PIERSOL TO MARK VACATED A VOID AB INITIO JUDGMENT— A NULLITY VOID EVEN BEFORE REVERSAL.


  42. TN
    Read Section 10 in its entity and see if you don’t pick the whole concept.
    Section Ten sets limits on states, reserving certain powers exclusively to the Congress. States are prohibited from coining money or making anything other than gold or silver coin legal tender for payment of debts and are prohibited from entering into treaties or alliances, although compacts with other states are allowed with the permission of Congress. States are also not permitted to lay duties, keep troops or warships in peacetime without Congressional approval, or engage in war unless actually invaded or in imminent danger. States also are barred from laying imposts or duties on imports or exports except for the fulfillment of state inspection laws, which may be revised by Congress, and any net revenue of such duties is remitted to the federal treasury. Finally, states, like Congress, may not pass bills of attainder or ex post facto laws, nor grant any title of nobility
    Shermans idea of changing from the Articles of Confederation where every state made its own form of money to under the Constitution where Congress had control is why “no state can” was put in..

  43. Schwartzwald created a new “true and tried”. If I had been foreclosed on before, I’d do a hell of a homework and I’d grab an attorney willing and capable to sort my mess out, even 6 years later. Apparently, it works!

    Oops! A double four-letter word: home… work. No one on this site would touch either with a 20′ pole. But people post. More energy. Much, much less result. One has to wonder… what’s their motivation to go for lose? Is there some promise of eternal life is one caves in, plays dead, comes to LL to vent and rant and accomplishes nothing?

    USBank Assignment Fail and 60(B) info
    “The allonges are undated and contain inaccurate information.”


    Further, “[a] party should not file a Civ.R. 60(B) motion for relief from judgment in order to have the void judgment vacated or set aside, since Civ.R. 60(B) motions apply only to judgments that are voidable rather than void. This is because the power to vacate a void judgment does not arise from 60(B), but rather, from an inherent power possessed by the courts in this state. Therefore, a common law motion to vacate a void judgment need not meet the standards applicable to a 60(B) motion.”

  44. TN
    Go read how and why those words were written into our Constitution to change from the Articles of Confederation to the Constitution. I THINK IT WAS SHERMAN WHO SPOKE OF THE REASONING BEHIND IT.

  45. Marilyn, you’re still ignoring those 3 words – no state shall

  46. What is a ” dividion of ” ? Doing business as, parallel to
    the foreclosure mill —????– financial–///DBA … via —– law corp… atty—/So many on the payroll.


    just because the judges did not pay attention to what their pension funds were invested in (mbs) doesnt mean they can ignore Art 1 PARA 10 CL 1 OF OUR US CONSTITUTION.

    A win for us is a loss for them

    If we all didn’t fight back FEMA camps would be around the corner. FEMA camps would not be going upwards in the style of housing Americans want but more down wards toward God forbid Hitler’s plan .

    It is easy to see how anyone who had such trauma In their lives, would think IF YOU ARE NOT WITH US, YOUR AGAINST US. .
    and you would be.

    Never again means be on your guard before such a brutal, sick and violent force could take over. Right now it looks like your wearing
    beige . Why don’t all the attorneys get red white and blue ties and fight with us ?

  48. marilyn lane at 8:26 – good catch!

  49. NG – a little while back you suggested the novation of the mtg loan contract (if it’s a contract)….at any rate,’ the deal’. If there were novation, it was between the trust as alleged ben of the deal and the investors and others. (I think – I’m trying to identify the parties to novation) The investors’ payments and payout (term of MNS’s) don’t mirror those of ‘the deal’. Further, other people besides the borrower and the lender have obligations which aren’t found in ‘the deal’ – the fnma guarantee, the gnma guarantee of the MBS’s, but only to the Issuer unless the Issuer is insolvent, CDS’s, the must-buy-backs, and so on. (There is no guarantee to a lender he will see his moolah again. His remedy is limited, generally, to foreclosure and a deficiency judgment where allowed by law.) The investors are ‘bens’ of a separate affair, the MBS’s. There are clearly other agreements and what I guess could be called conditions precedent (among which is the premier – the borrower’s default) But even without the rights and obligations being triggered by conditions precedent, the rights (got me on those actually) and obligations – for a repurchase, say – exist and there can be no doubt those are material, even if not patently a novation. Any repurchase agreement is akin to a guarantee (because generally the repurchase requirement is at the note balance, not a discounted balance), and that makes me wonder about transferring notes by way of article III – what liability remains as a matter of law for an endorser. That “without recourse” is material. But I agree it’s a novation because the ‘normal’ rights and duties of lenders don’t exist as to the investors. That leaves no bens for the trust and a trust must have a beneficiary (or I don’t know why not). But for the other parties and their involvement, I think we could just say the investors own shares in a common interest IF the MBS’s paid out in accordance with their alleged collateral. So, of course, to undermine all that, they just rely on article III and disregard all else (including what looks to me like the trust, the alleged owner of the loans, has no beneficiary. MS might say those assets, the loans, are abandoned. I wouldn’t agree because, if for no other reason, there’s no beneficiary for the trust to abandon to.
    But actually, that doesn’t (abandonment) even work because of the repurchase obligations. Obviously, I’m mol throwing stuff out here, but I will say I was disappointed that you abandoned the probably dispositive novation theory, which if pursued to its end could change the game.

  50. Grover Cleveland said on April 13, 1895: “This nation can promise the American people safety and protection only as long as its solvency is unsuspected, its honor unsullied and the soundness of its money unquestioned.”

    What a joke this country has become!

    Front row seat to the show: “The Abyss of Imbecility”. Not much honor there. Great cast though. Very credible too. Oh, wait a second: those are not actors, they are the protagonists! Just waiting now for judge Schlesinger to realize that her name has been plastered on internet with accusations of bribery, corruption and such by some moron whose endless court actions were refered to by four (4) judges as : frivolous, non-meritorious and, best of all, vexatious.

    Are people really surprised on the shape this country is in? They created it!!! Some people really need a day job.

  51. John, doesn’t a void transfer simply result in no transfer so that the note remains with the named “lender” on the document itself?

  52. So now I’m Hitler? What are you yakking about A Man?

  53. ian, according to this link, Wells Fargo Home Mortgage is a ‘division’ of Wells Fargo Bank, N. A.

    If you follow the link in the link, you get directed to WF, not WFHM (from a search for WFHM). I would find an old law suit with them and see their state of incorporation and then go to that SOS to see what it says.

  54. Were these people greedy?
    According to Hitler and Tnharry they were.

    never again

  55. a MAN

    I see that on this site but that wasn’t her issue just greed.

  56. A MAN
    Now that we know how big the fraud , it is the only way to go before a Judge.
    I was in front of Judge Schlesinger in 2008 and did not do that because According to the law a judge has no desecration when you come in front of one to MARK vacated a void ab initio judgment. It is a nullity.

    She appears on the surface to be a soft spoken and honest judge, hind site tells me she was a money hungry judge. i saw some issues but only when the title attorney Thomas Malone of Fidelity and his partner in crime David K Fiveson with his sham title company he called Coronet said ‘WE HAVE EQUITY’ did her persona change and the JUDGE LOOKED OVER HER GLASSES AND SAID TO ME ‘it doesn’t look good for you. She took the bribe and ruled against the law.


  57. well, heck, if Neil is right about the funding making the investors the ender (which I don’t believe), then every MERS assgt is void, unless MERS is a “novated” party (parens because of complications I’ve mentioned with the orig lender not first being name the ben) – thee ben (in which case I say there was bifurcation, IF a complete contract exists, from the get go = mtg loans with one party as lender and a diff party as ben). If MERS is thee ben (and not an agent, which it isn’t), then it could assign. If not, it can’t because it doesn’t represent non-members, the investors NG says funded the loans, to him the lender. Neil, if you’re so sure the investors are the lenders, and since they aren’t rep’d by MERS, I’m wondering why you have never mentioned this……?

  58. I said the note buyer has no right to enforce the note against its maker when the note hasn’t been delivered. What the note buyer has, in addition to his ben interest, is a right to delivery (or maybe the return of his funds), which a court would grant if litigated imo. But, these trusts can’t or won’t demand delivery in litigation because that would acknowledge the non-delivery. (better to see how much they can get away with) I don’t really believe the assgts out of “MERS” actually intend to do anything but create a cover-your-a$$ paper trail for their own reasons as I’ve said “over there”, but it’s what we’ve got, what we have to deal with. It’s the servicers and others driving this engine (to get the alleged credit bid of the trust, generally and to avoid obligations imo). What I’m saying is just that in the course of ‘normal’ business, non-trust-with-cut-off-dates, that would be the course of action – to demand the note paid for but not received or the return of funds.

  59. oops dadztites

    Tnharry the brown shirt.

  60. marilyn this what dadzritew posted in yesterdays comments. He/She knows how to do it I think. My only worthless suggestion to you is to try to recuse the judge before your hearing. Learn about the judge before the case. and that way you are one step ahead of them.


    I’m tired about what judges will do or won’t do. It’s time to show who’s in charge and start filing motions demanding judges recuse themselves from cases if they deny due process. If they won’t disqualify themselves, there’s 2 other options: Sue the judge in state court. Even though judges have the antiquated fraudulent absolute immunity (which is a 600 year throwback to the Star-Chamber), suing them in state court creates a conflict-of-interest where they have to remove themselves from the case.
    Or, file a petition (in the form of a civil complaint) for impeachment of the Judge with the entire state assembly (and maybe senate) with relief being in the form of judicial pensions being granted to petitioner. A copy sent to the judge and his boss, whoever presides in the county, and the judge will recuse. When word gets out, start watching judges fall in line.
    I’ve done impeachments on 6 judges in a northeast state. Two recused, one was transferred to another division, one was suspended for a period of time, 2 retired early.

  61. I’ve here and there suggested that a note which has been paid for but not delivered is not enforceable by anyone in that state – the seller may not enforce for lack of interest, lack of right to be paid, to collect from the maker, having already been paid by the note uyer. The note buyer, on the other hand, can’t collect on the note because it hasn’t been
    transferred because the deliver hasn’t occurred. No delivery = no right to get paid by the maker. The other day, KC linked an article which appears to support this, albeit sparingly:

    “One of the consequences of the sale of a negotiable note not carried out in accordance with the requirements of the holder in due course doctrine is that the purchaser of the note may not be free of the personal defenses that the note maker (the borrower) would have had against the original lender. These personal defenses include lack of consideration, nonperformance, actual payment of the debt, and fraud in the inducement. See UCC § 3-302”.

    jg -this part: “Another consequence of the sale of a note not done properly is that the beneficial owner (as opposed to the legal owner) may not be able to collect on the debt if the borrower is in default.”

    “And a third—and until recently hidden—consequence of an improper sale of a note to a secondary market participant is that the purchaser may fail to comply with the requirements necessary to obtain favorable tax treatment as a Real Estate Mortgage Investment Conduit (REMIC).”

    We have been thinking (haven’t we?) that the late transfer, more accurately its acceptance because acceptance IS required, of a note and its coll instrument 86’s the preferential tax treatment of a trust. But, after reading that last paragraph, it occurs to me that status has already been lost for failure of delivery of the asset which secures the payments to investors. The investors can’t be receiving income of an asset which doesn’t belong to the trust. Well, they can, but there’s no REMIC then. The authors, two attorneys, make the distinction (duh, i think) that the seller retains legal title of the note, while the guy who paid for it, the buyer / trust, has beneficial interest, which all means to me that the trusts are receiving income on ben interests, but not ownership as is required for REMICs. (I have referenced the UCC’s reference to security interests created in that scenario, so we have both, I guess: the trust would have sec interests and ben interest, neither of which create a right to enforce against the maker). One bottom line might well be that the trusts have already lost their REMIC status – because of non-delivery – and every dime already paid to the ‘trusts’ is taxable at full bore. Good reason, very good reason, for others, esp the trust trustee, to not scream about non-delivery.
    But that’s not a good strategy for us – to state that there is no trust.
    So far I think it’s better to just allege that the late delivery, which, again, requires acceptance by the “trust”, is void pursuant to trust law. The banksters are in quite a pickle, under the true light: unless the trust accepts late delivery of the loan, it’s possible the note is just not enforceable by anyone.

    **There is imo NO such thing as unjust enrichment as a result of someone’s else poor (read rotten-to-the-core dirty-hands) business plan. The bad actor as a matter of law must bear the consequence of his bad acts, even as it results in a ‘windfall’ to another who had nothing to do with those bad acts. The bad act was getting paid and not deliverying (first of all).
    My opinions conflict with NG’s, but until he tells us why he thinks the investors’ funds were used to fund loans, I’m not getting into it. fwiw. But, if he’s right, for one thing, the “trusts” had no funds to pay for anything, even if, which I doubt, it makes the investors the lender by way of using their moolah to fund loans. I’m willing to believe it when that supposition is supported. At any rate, even by his theory the “trust” doesn’t own jack. Someone elses might, if the UCC and equity allow, but not a trust. Either way, the ‘trust’, had no preferential tax status, obviously, something drastic to those trustees, which is why that one case, I forget, is a killer for them. We need to get in front of the damn train this time, instead of behind it.
    When it’s ‘generally accepted’ that ‘trusts’ cannot as a matter of law accept a late transfer (“void”), then what will they think of?
    In the meantime, I think we need to push two things: a late transfer to a trust is void and / or alternatively, for evidence that the trust has in fact accepted the late transfer. Whether or not it would be more helpful than hurtful to demonstrate that the note is otherwise unenforceable by anyone, I don’t know. That’s strategy.
    lay opinions as always

  62. It nerve wracking, exhausting but eventually every day you get a little stronger once you figure out the law.

    you have to make yourself into a boy sabra tough on the outside and soft inside –

  63. A MAN
    I had no computer then. I read so much sitting on a
    hard wooden seat at the library
    my tushie was sore.

  64. Thanks for all of your concerns. Tnharry is on the wrong side of history. Yes I need to calm down.


  65. a MAN
    I HEAR YOUR PAIN I am just a simple homeowner fighting for my two condos stolen by the corrupt debt collectors who used to work for Astoria Federal S & L. This is not any kind of advice especially legally I AM NOT A LAWYER.

    The circumstances and the facts of my two cases . are different from any of yours . I was in Federal Court when a NEW YORK state Court judge Carol Arbor SIGNED THE VOID AB INITIO JUDGMENTS with out jurisdiction. Even if JUDGE ALICE SCHLESINGER KNEW HOW TO STAND ON HER HEAD she or any judge can not make a void ab initio judgment valid.pursuant to THE UNITED STATES SUPREME COURT CASE ELLIOT V Piersol . The law of the land —
    .so don’t follow me

    Start reading reading Read a JUDGE like SUPREME COURT judge Thurgood MARSHALL. Don’ let TN discourage you. He too ought to read Thurgood MARSHALL. MAYBE TN WOULDN’T TALK TO YOU THAT WAY.

  66. RE; “So this is personal” … and that a man makes you a danger to yourself in the courtroom and to the public. You are to quick to jump to conclusions.

    Neil, Shame On You! You told a Half Truth …. Half the Story. Now look what you have went and done.

    You’ve got a half informed mob running amuck and they are going to lynch an innocent.

    Procedure 1st!

    If you didn’t present a proper case, you just cant recuse a Judge.
    If you did, you get your objection on Record for Appeal.

  67. You see the Deutche banksters killed my GrandParents whole family in Poland and they stole there property. So this is personal

  68. Tnharry you are on the wrong side of history. I am just voicing my opinion to Neil Garfield.

    So I am not gonna get caught in name calling Actually I think you are the only one on the otherside that makes some sense. But remeber the Neuremberg Trials Your defense of I was just taking orders wont cut it.


  69. “dont worry KC I will find dirt on the Judges. It is easy.”

    do you even read or think about what you type? if i was on the other side of a case with you I would be very pleased to note that you were spending your time investigating and researching the judge rather than preparing your case

  70. A-man you are a danger to society with that nonsense.

  71. dont worry KC I will find dirt on the Judges. It is easy.

  72. Why go all through trickery when all you have to do is Produce the note and/or sue the Judge.

  73. Lol at KC – I admit I was intrigued that Stopa apparently invented the motion for summary judgment as a pleading as well.

  74. deb
    it is called the rule of nemo dat

  75. Right ML
    One can not transfer what ine does not own. Very simple concept. I ask what is the ” asset” and its disposition: ab initio of the contract at time of bankruotcy and at time of sale via fdic as conservator with regards to a REMIC

  76. Good Morning,
    RE; “especially a motion for summary judgment filed by the homeowner (an idea promoted first by Mark Stopa, Esq.). ”

    I like Stopa and all , but this statement is a stretch.

    I better get my coffee … I don’t want to start the day like this,
    …………………….. you know.. being harsh and judgmental.

  77. RE: a $7.00 purchased stolen Renoir

    Judge LEONIE BRINKENIA in a hearing in the US District for the Eastern District of Virginia dismissed a womans claim of ownership noting a property’s tittle can not be transferred if it resulted from a theft.

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