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It has been my contention all along that these cases ought to end in the discovery process with some sort of settlement — money damages, modification, short-sale, hardest hit fund programs etc. But the only way the homeowner can get honest terms is if they present a credible threat to the party seeking foreclosure. That threat is obvious when the Judge issues an order compelling discovery to proceed and rejecting arguments for protective orders, (over-burdensome, relevance etc.). It is a rare bird that a relevance objection to discovery will be sustained.
Once the order is entered and the homeowner is free to inquire about all the mechanics of transfer of her loan, the opposition is faced with revelations like those which have recently been discovered with the Wells Fargo manual that apparently is an instruction manual on how to commit document fraud — or the Urban Lending Solutions and Bank of America revelations about how banks have scripted and coerced their employees to guide homeowners into foreclosure so that questions of the real owner of the debt and the real balance of the debt never get to be scrutinized. Or, as we have seen repeatedly, what is revealed is that the party seeking a foreclosure sale as “creditor” or pretender lender is actually a complete stranger to the transaction — meaning they have no ties i to any transaction record, and no privity through any chain of documentation.
Attorneys and homeowners should take note that there are thousands upon thousands of cases being settled under seal of confidentiality. You don’t hear about those because of the confidentiality agreement. Thus what you DO hear about is the tangle of litigation as things heat up and probably the number of times the homeowner is mowed down on the rocket docket. This causes most people to conclude that what we hear about is the rule and that the settlements are the exception. I obviously do not have precise figures. But I do have comparisons from surveys I have taken periodically. I can say with certainty that the number of settlements, short-sales and modifications that are meaningful to the homeowner is rising fast.
In my opinion, the more aggressive the homeowner is in pursuing discovery, the higher the likelihood of winning the case or settling on terms that are truly satisfactory to the homeowner. Sitting back and waiting to see if the other side does something has been somewhat successful in the past but it results in a waiver of defenses that if vigorously pursued would or could result in showing the absence of a default, the presence of third party payments lowering the current payments due, the principal balance and the dollar amount of interest owed. If you don’t do that then your entire case rests upon the skill of the attorney in cross examining a witness and then disqualifying or challenging the testimony or documents submitted. Waiting to the last minute substantially diminishes the likelihood of a favorable outcome.
What is interesting in the case below is that the bank is opposing the notices of deposition based upon lack of personal knowledge. I would have pressed them to define what they mean by personal knowledge to use it against them later. But in any event, the Judge correctly stated that none of the objections raised by BONY were valid and that their claims regarding the proper procedure to set the depositions were also bogus.
Filed under: CASES, CORRUPTION, evidence, foreclosure defenses, GARFIELD KELLEY AND WHITE, GTC | Honor, Investor, MBS TRUSTEE, MODIFICATION, Mortgage, Motions, Pleading, Servicer, Title, TRUST BENEFICIARIES, trustee | Tagged: Bank of America, bank of new york, competency of witness, depositions, discovery, foreclosure defense, Mellon, modification, objections to discovery, personal knowledge, short-sale, Urban Lending Solutions, Wells Fargo |
[…] Once the order is entered and the homeowner is free to inquire about all the mechanics of transfer of her loan, the opposition is faced with revelations like those which have recently been discovered with the Wells Fargo manual that apparently is an instruction manual on how to commit document fraud — or the Urban Lending Solutions and Bank of America revelations about how banks have scripted and coerced their employees to guide homeowners into foreclosure so that questions of the real owner of the debt and the real balance of the debt never get to be scrutinized. Or, as we have seen repeatedly, what is revealed is that the party seeking a foreclosure sale as “creditor” or pretender lender is actually a complete stranger to the transaction — meaning they have no ties i to any transaction record, and no privity through any chain of documentation. READ MORE… […]
the man who answered my post on beemer / luthis please get in contact with me maybe we can hire Niel Garfield firm 864-787-2880 Shirley
All of our chit; chat discovery exposed on these foreclosure sites have not done nothing. Disgusting how slow the truth is being known to the whole country, Here in New York the state has picked up on how the sitting judges refused to obey and abide by the oath they took to protect our property rights and they voted, them out of office
I am going at it with Wells Fargo for going on three years now and when 3 years ago I sent them a QWR they sent me their version of the closing docs and deed. 2 months or so after having those I was looking them over very carefully[not great copies]and in the HUD 1,closing costs they are claiming to have paid my 2nd with chase.That was insane since I paid it in full 2 months prior to this refi and have all the statements and cancelled checks.Then there is a ton of other issues but when I made them aware of this they are sticking to their story that they paid it,I wont go into the craziness with trying to modify.Have a court date in august but not so confident with the lawyer who has got 14k out of me and we are not even in court.Any input would be helpful,Im in Ca btw.Thanx
Disgusted1,
Banks won’t settle unless they feel they could lose. If banks negotiate, you’re in the driver’s seat.
Any well-conceived settlement should spell out:
1) Tax liability (of course, you do NOT want any. If bank says there is one, jack up the settlement amount to cover it.)
2) Title: banks won’t admit to a cloud (Jeez! It’s not a cloud! It’s a frickin’ storm!!!) Negotiate the amount it will cost you to QT and put it in.
3) Hold harmless and indemnification until 2) kicks in. It may take months for a successful QT and a few legal bucks to weather that storm; plan ahead and cover yourself in the meantime.
4) Credit rating: don’t let banks mess it up. If you need to clear yours, include what’s involved.
5) Repairs you didn’t do while you went through the ordeal and you let the house go because you didn’t know which way the wind would blow.
Again, if banks negotiate, it’s because they think they may lose. Squeeze all you can from it. After all, it is your money and it was from the first bailout. Get some decent return out of it.
@ Disgusted1
You are right to think of the continuing hardships … if in the settlement you don’t get a satisfaction you’re screwed for xx years until after you have a successful QT or if you instead simply state that you are in “adverse possession” and pay the taxes for xx years..
I’m staying here forever so I’m not that worried… I just need to make a few updates for disabled parents (walk in tub and such).
Subject: File No. S7-35-11
From: marilyn h Lane
Affiliation: concerned individualSeptember 5, 2011
The abominable banking system that is in place today, gives a bank great incentive to foreclose on an Ultra Vires contract, as the bank demands lawful money returned for the unlawful money lent.
By what Authority are the Banks doing this? There is no authority for doing this. This is in complete prohibition to Art 1 Para 10 Cl1 of our US Constitution.
All of our cases with slightly different facts all stem from the same Fraud.
The Bank did not lend you LAWFUL MONEY but the Bank intentionally wrote
a bad check and gave it to you –to circulate as money
I certainly did not know this kind of fraud was going on when I signed my mortgage and note. Did you?
The Mortgagor puts up a down payment, the Mortgagor pays a lot of fees and probably paid an attorney to represent them, all in order to get this bad check
Would a Mortgagor have put in all that money, if one knew the truth of how the Banks ran their illegal business. I bet not.
Did anyone notify you after that big day – the Banks check bounced – of course not. When the check that the Bank wrote came back to the Bank that wrote it, the bank didnt say we only have 5% , if that much and it was not stamped insufficient funds the bank stamped it paid
So since the Bank did not have the money sitting in the banks account when they wrote the check, what the bank gave you is their credit.
That is exactly what is prohibited by Art. 1 Para 10 Cl 1 of the US Constitution.
What authority gives the Bank the right to make contracts with bad checks
Nothing- Nada.
Lawful money is needed to make a contract valid.
Over and Over Mortgagors gave a Bank a mortgage on their castle , in return for a Bank giving you a credit entry on their books and charging you Interest on this credit. Also illegal.
Did the Bank give you lawful money or is that what you got, credit?
Banks are not allowed to lend their credit- Banks are in the business to lend
lawful money There is not a Bank charter that allows a Bank to lend their credit.
And as we continued to make monthly payments the Bank collected more money on their fraud.
You try writing a check when you dont have funds sitting in your account to cover it.
You can be sure that check is coming back markedinsufficient funds You are not allowed to do it and either is a Bank.
This scam of Ultra Vire contracts caused injury to us, the true homeowners.
In addition the banks are laundering bad checks.
The Banks violate Truth in Lending Laws.
The Banks are collecting Interest on money that doesnt exist. (Lending you 5% and collecting Interest on 95% of thin air)
And once the Bank gets their Ultra Vire contract going, they start flipping them to MERS, Securitizations , Wall Street, Title Companies etc. there is no shortage of people all wanting to get their piece of the illegal profits.
Deb and all
Void ab initio judgments are not judgments they are nullities, they cannot be settled by anything .
Nemo dat you have to own something to give it away.
Chief judge Johnathan Lippman of NY believes in fighting to expose
the truth and so do we.
The only short sale they will have at my house is when the interior is short of everything I put in it, right down to the white electric plugs…
Short sale ?????…..hell no !!!!!
http://livinglies.wordpress.com/2012/10/23/alignment-of-parties-and-cancellation-of-void-instrument/
DENY and DISCOVER: First you need to start with the premise that the origination (“closing”) documents were defective from the start. By naming the wrong payee and containing terms different from the terms agreed by the actual Lender (source of funds) specifically as to how the receivable is to be repaid, the note fails the essential tests required to be considered “evidence of the obligation.”
The defective note therefore cannot be reinvigorated into non-defective merely by mention in the collateral mortgage or deed of trust which is recorded to assure faithful performance by the Payor under the terms of the note. Perhaps the reverse would be true if the mortgage or deed of trust disclosed the reality of a table funded transaction, but that is not apparent for any loan for which there are claims of securitization or assignment.
Hence, the cause of action for cancellation of a VOID instrument lies in the fact that although the mortgage or deed of trust was recorded, it should not have been recorded because it did not recite the basic requirements of a perfected lien. I would add the caveat that cancellation of the instrument probably does not apply to the note, but does apply to the mortgage or deed of trust.
The note is subject to a cause of action for return of the note as satisfied or cancelled if you allege and prove that the Lender was paid in full and that anyone other than the homeowner who paid it might have a cause of action for contribution but that (a) said cause of action is NOT before the court and (b) an action for contribution cannot be considered secured even by a valid mortgage that was satisfied, much less a mortgage or deed of trust that was never a perfected lien.
The cause of action is NOT in contribution if the allegation is that the “creditor” (after showing the details of the transaction in which money was exchanged) purchased the note and mortgage, which is different. In that case, an assignment would be required or some other bill of sale or other instrument in order to preserve a perfected lien. But the payment and even a transfer does not perfect a lien that is defective.
That bring us to the issue of evidence and the alignment of the parties. Nearly all pro se litigants and lawyers are using the above arguments as affirmative defenses or worse yet, merely as argument at hearings for demurrers, motions to dismiss, motions for summary judgment and motions to lift stay. This is understandable in the non-judicial states because of confusion and conflict in the rules of civil procedure.
In seeking a Temporary Restraining Order, the homeowner needs to bring the lawsuit, which is ridiculous when you thin about it because the information about the loan is in the hands of multiple parties, many of whom the known parties refuse to disclose the identity or status of said stakeholders.
Where I see attorneys getting traction in courts previously disposed to be dismissive of defenses and claims of borrowers, is precisely in this realm. First by denying the obligation, note and mortgage, that pouts the matter at issue. At that point it is universally agreed that the burden switches to the other side as to pleading and proof. People often ask me during seminars or conference calls
how do I prove that?”. The answer is that you don’t — you make them plead and prove their allegations. Non-judicial foreclosure was NEVER meant to be a vehicle to allow foreclosures to be completed when they would not have satisfied the statutory requirements of a judicial foreclosure.
This is what you cite: “Where the evidence necessary to establish a FACT that is ESSENTIAL to a CLAIM lies peculiarly within the knowledge and competence of one of the parties, THAT party has the BURDEN of going forward with the evidence on the issue even though it is NOT THE PARTY ASSERTING THE CLAIM.” [Garcia v Industrial Acc. Com (1953) 41 Cal.2d 689, 694; Wigmore Evidence 2d ed. 1940 Sec 2486; Witkin Cal. Evidence (1958) Sec 56(b).]
This doctrine is centuries old. You know something is true or you at least have good reason to believe a fact to be true but he other side has the proof. IN this case you know your denial of the essential elements of the judicial foreclosure forces the forecloser to come forward and prove their claim that they indeed have the right to foreclose.
Most Judges in most instances have realigned the parties and required the party claiming affirmative relief to plead as though they were the plaintiff even though the statute required the initiation of the lawsuit by the other side (the homeowner). It’s like some of the “negative” rulings against borrowers. There are plenty of people who can START a foreclosure, but only the creditor can finish it with a credit bid at auction.
California MEmo on ALignment and Cancellation of Note
Attorneys and homeowners should take note that there are thousands upon thousands of cases being settled under seal of confidentiality
Agreed.. My question . Is the homeowner ever able to tap into the equity in the house EVER ?