“Trustworthy” Business Records: Matt Weidner Takes on the Elephant in the Room

It is quite clear under hundreds of years of legal precedent that documents cannot be introduced as evidence of anything. They are clearly hearsay. Some Banks are trying to use the phrase “self-authenticating” which simply does not apply to self-serving fabrications of documents. The real strategy is using the “business records exception” to hearsay, and all  eyes seem to be on Florida now. Matt Weidner has written an excellent article on the subject at http://mattweidnerlaw.com/calloway-v-bony/. And from the other side see http://www.jdsupra.com/legalnews/congratulations-you-now-own-the-loan-18283/

But I think there is a basis to use information in the public domain to challenge the business records exception. We already know of findings by administrative agencies and Congressional hearings and law enforcement that the banks were fabricating documents and wrongfully foreclosing on as many as 95% of all the foreclosure (See Elizabeth Warren’s questioning of FDIC investigator).

I would argue that the bank or servicer is not entitled to use the business record exception because of all the cases and information we have on the internet, including governmental proceedings, where it was revealed that most of the foreclosures were based upon false premises. References to the Katherine Ann Porter investigation, the San Francisco Report (65% of all foreclosures were by strangers to the transaction”) would be helpful. The Consent Orders and Settlements also give rise to a presumption that the records of the banks and servicers are NOT trustworthy nor are they actual business records. They are instead reports prepared for trial about which the presenting witness knows nothing.

Accordingly, I would argue, the records are inherently untrustworthy which is what has been found on thousands of cases where the bank lost and the homeowner won. And I would further argue that this exception is for convenience, not proof. If there is any doubt about the existence of a loan in the chain relied upon by the foreclosing party, or any doubt about whether there was a purchase or sale of the loan, the note, the mortgage, the deed of trust, or the authenticity of a MERS executive authorization or Power of Attorney, I would say that the proponent of such an assertion must prove it rather than rely on the presumptions used in connection with “negotiable” instruments — particularly when the “negotiation” took place when the loan was already in default, meaning that it was NOT a negotiable instrument. If not a negotiable instruments there are no presumption to apply.

And lastly I would argue lack of prejudice. If the transactions were fictitious, the court should certainly want to enter a judgment on the real facts than the lies proffered by parties in court. If anything, the prejudice is to the homeowner in letting the bank or servicer use self serving documents of unknown origination in lieu of presenting real facts by real witnesses with real knowledge carrying real documents.

If the transactions were real, they should have no problem showing proof of the movement of money in consideration for the purchase of a loan. How hard is that? They supposedly did it when they sold the loans — why can’t they do it now when they are saying they have the right to foreclose the loans? Maybe because the entire securitization scheme was a fraudulent scheme using the court system to legitimize illegal acts.

56 Responses

  1. Sorry Toby, a dismissal without prejudice is not a win. That’s scammer talk.

  2. Did I miss something?

    I figured Rock would be posting a lengthy list of the victories of which he has been the driving force.

  3. Correction: case 11CV2554, District Court 14.

  4. I see a number of people claiming here that no cases have been won against the bank. I have beaten Bank of America, New York Mellon et al three times, using many of the concepts described here and elsewhere, by myself. The essential concept is that these these banks are wholly corrupt, and every statement and document contains multiple flaws. Challenge Everything.
    Here’s the first dismissal, in Boulder Colorado County Court, case 11CV2552:

  5. Neil, I just don’t believe your assumptions about all the thousands of times the bank lost. You need to look at the millions of times they won. And stop to think about what’s going on.

    1. Borrowers borrowed money and must repay it.
    2. The judge can simply interrogate the borrower to learn whether the borrower signed the note and mortgage and why the borrower made payments, then stopped paying. THAT PROVES the existence of the debt.
    3. Next time you actually litigate a case, much less WIN it, let me know.
    4. The appellate court got it right because of common sense as well as legal principle and PUBLIC POLICY. Imagine what would happen if courts effectively canceled every mortgage taken over by every bank from the FDIC.
    5. No matter how much you wish otherwise, courts will not give away free houses just because a bank bought the note from another bank or received if from the FDIC.

    You DON’T GET IT, Neil.

    No wonder Rock calls you a kool-aid drinker. You have become the Jim Jones of foreclosure defense.

  6. Why are these assignments being done to the trustee instead of the trust? I don’t know that answer, not something I know, not being a trust-fund-baby, for example. Don’t the trust documents require assgt to the trust, not the trustee??? Hmmm….

  7. yes, e.tolle, I’m somewhat aware of Max gardner’s camp, but there was at least one thing cited in your linked material that I didn’t know, which if I have time, I’d like to explore.
    But it doesn’t matter with our “critics”. When they can’t rely on facts, they will simply try to undermine the speaker, “brainless, drinking too much kool-aid, don’t know the law”, and so on. Lame, weak, actually. It may also not matter as long as any Merscorp’ member may use its employee-come-mers-‘officer’ to execute assignments / transfers of the coll instrument as well as the notes. But at any rate, I’d like to hear the justification for an assignment of the note (by ‘mers’!) to one who is in possession by negotiation. And of course, I’d also be interested in the justification for (sale and) assignment of the note to one in possession by negotiation or even by transfer (by mers!), esp since mers swore in at least Nebraska (MERS v NB Dept of Banking and Finance or like that) that it had zero interest or anything to do with notes. ACC to article 9, one who has paid for a note but not received it has a security interest, so if the notes were never delivered, that’s all a trust has. Does that make for a true sale, or are they now attempting to change the security interests of trusts to holders of the notes (by any definition)?
    Course, if they only had sec interests and those don’t make for true sales, the trust didn’t qualify as a remic. As a matter of law, such a trust is then either a partnership or a common law trust.
    I think anyone who’s on the receiving end of a “late” assignment to a trust should copy the IRS, the AG, the SEC, the party alleged (trustee of X trust) as the assignee, the NY Times, her mother, and anyone else she wants to spend postage on and include a certificate of mailing. It’s a small, fairly uncumbersome undertaking and maybe a flood of them would make a difference. A sec’n trustee has a fiduciary to its beneficiaries (I believe) and by accepting a late assignment, imo, he’s breaching it and by executing and recording the late assignments, mers et al is perpetrating third party breach of fiduciary, at least to the extent the assignment is accepted (for which there is never any evidence) As to sending notice of the late assignment (with a cert of mailing) to the sec’n trustee, I’d do it anyway, even tho the trustee doesn’t legally have the luxury of (any later claimed) ignorance.


  8. Even mers has stated in at least one case (which I’ve linked here in the past) that these notes are not regulated by Article 3 (and that they fall under article 9). But I can readily see how some if not many would put no stock in that argument, considering the source.

  9. E.Tolle, yes, both are entitled to their own opinion. Problem is the only opinion that counts is the courts!

  10. Or illiterate like Max Gardner:

    The Uniform Residential Mortgage Note is Note a Negotiable Instrument Under the UCC


    You’re in good company JG. Rock, you’re a misfit on an island of fools.

  11. Rock Star says, “Same goes for you not understanding promissory notes are negotiable instruments. Only people not literate in the law think they are not.”

    You mean illiterate like Adam Levitin:

    “Second, it is important to understand that the PEB report is utterly irrelevant because by its own terms it only addresses the enforceability of “negotiable” mortgage notes, and virtually all mortgage notes are non-negotiable.”


  12. JG, like most people not literate in the law, you don’t understand what you’re reading.

    Self defense is an affirmative defense, which is an absolute defense to assault.

    Truth is an affirmative defense, which is an absolute defense to defamation.

    “The law provides a complete defense commonly referred to as an affirmative defense…” US v. MINTMIRE, 507 F.3d 1273, 1293 (11th Cir. 2007).

    To make it simpler a heart is a different organ than a liver, but they’re both organs. Like I said a distinction without a difference.

    Same goes for you not understanding promissory notes are negotiable instruments. Only people not literate in the law think they are not..

  13. FEDERAL INS. v. BINNEY & SMITH, 393 Ill. App.3d 277 (2009)
    913 N.E.2d 43

    “A. Absolute Defense to Consumer Fraud Act and Deceptive Trade Practices Act Claims

    Notwithstanding the affidavits presented in support of Binney’s decision to settle, Federal contends Binney could not have reasonably anticipated liability because Binney’s compliance with federal law created an absolute defense to the Consumer Fraud Act and Uniform Deceptive Trade Practices Act claims.”

    CAROL FAYE SMITH, surviving spouse and Administrator of the Estate of Robert Gail Smith, Plaintiff-Appellant, v. HOLSTON MEDICAL GROUP, P.C.; (et al – sic) Case No. 14-5417.
    United States Court of Appeals, Sixth Circuit.
    December 9, 2014.

    “The district court found such prejudice here, concluding that “dismissal
    without prejudice . . . would strip [the defendants] of an ABSOLUTE DEFENSE …..
    The district court recognized that an ABSOLUTE DEFENSE existed under the circumstances, cf. Rosenthal v.
    Bridgestone/Firestone, Inc., 217 F.App’x 498, 500-01 (6th Cir. 2007)”

    CHICAGO INS. CO. v. ARCHDIOCESE OF ST. LOUIS, 740 F.3d 1197 (8th Cir. 1-29-2014)

    “Binney, too, examined whether governing law provided the
    insured an ABSOLUTE DEFENSE to the claims asserted in the underlying action…… 332 Ill.Dec. 448, 913 N.E.2d at 50, 52.

    Absolute defenses are also available and used in criminal law. Lack of probable cause, for instance, is an absolute defense.

  15. “Types of Defenses:

    Affirmative defenses:

    There are a variety of affirmative defenses that can be raised against tort actions. **The affirmative defense admits the act as having taken place, but acts as an excuse for the defendant’s action, and negates or lessens civil liability.** Affirmative defenses are, in effect, counter-charges brought against the tortious action, sometimes implicating the plaintiff himself and, in any event, barring the plaintiff’s claim completely or to a degree.

    **Absolute defenses bar the plaintiff’s tort actions completely.**

    Proportional defenses merely lessen the defendant’s liability by the measure in which she is found at fault. ”


    .(d) A promise or order other than a check is not an instrument if, at the time it is issued or first comes into possession of a holder, it contains a conspicuous statement, however expressed, to the effect that the promise or order is not negotiable or is not an instrument governed by this Article.

    jg: Does the language in the note (“however expressed”) qualify as a
    “conspicuous statement to the effect the promise or order is not negotiable”? No, I can’t and haven’t sworn to it. Just that it looks that way to me. Perhaps the language doesn’t restrict negotiability, but it clearly says it may only be enforced by one who has taken it by transfer and is entitled to payment.

    from note verbatim:

    “I understand that the Lender may transfer this note. The Lender or anyone who takes this note by transfer and is entitled to receive payments is called the Note Holder.”


    (a) An instrument is transferred when it is delivered by a person other than its issuer for the purpose of giving to the person receiving delivery the right to enforce the instrument.

    jg: there is no transfer if the note were not given to the person in possession with the intent of giving that person the right to enforce, which then even by the UCC precludes enforcement by a thief imo. A thief may have possession, but he wasn’t given the note by the lender so he wasn’t given the note then for the purpose of enforcement. So and so may be in rightful possession of a note, like a custodian, but he wasn’t given the note for the purpose of giving him the right to enforce the note. Ditto with a warehouse lender who takes possession until his short term loan is paid off, generally by the lender’s sale of the note. These notes, as seen above, require the “holder” to be entitled to payments. The UCC, unlike the note, doesn’t require the note holder to be entitled to receive payments. Now throw in FRCP 17.

    (b) Transfer of an instrument, whether or not the transfer is a negotiation, vests in the transferee any right of the transferor to enforce the instrument, including any right as a holder in due course, but the transferee cannot acquire rights of a holder in due course by a transfer, directly or indirectly, from a holder in due course if the transferee engaged in fraud or illegality affecting the instrument.

    (c) Unless otherwise agreed, if an instrument is transferred for value and the transferee does not become a holder because of lack of indorsement by the transferor, the transferee has a specifically enforceable right to the unqualified indorsement of the transferor, but negotiation of the instrument does not occur until the indorsement is made.

    So if the trust or anyone paid for a note but the note is not endorsed,
    no transfer has occurred until the endorsement is made *UNLESS otherwise agreed*

    (d) If a transferor purports to transfer less than the entire instrument, negotiation of the instrument does not occur. The transferee obtains no rights under this Article and has only the rights of a partial assignee.

    § 3-201. NEGOTIATION.

    (a) “Negotiation” means a transfer of possession, whether voluntary or involuntary, of an instrument by a person other than the issuer to a person who thereby becomes its holder.

    from note again:

    “I understand that the Lender may transfer this note. The Lender or anyone who takes this note by transfer and is entitled to receive payments is called the Note Holder.”

    jg: under the ucc’s def of negotiation, one in possession has become the note’s holder, subject to “b” below, which, relevant to most notes in play here, says a bearer note is negotiated by a transfer of possession. But the note very clearly says that a note holder is one who (in addition to transfer) is entitled to payments, which conflicts with the UCC, which doesn’t say that to enforce, one must be entitled to payments, also. The UCC appears to allow one in wrongful possession to enforce, while the terms of the note don’t.
    What have I misstated or gotten wrong?

    (b) Except for negotiation by a remitter, if an instrument is payable to an identified person, negotiation requires transfer of possession of the instrument and its indorsement by the holder. If an instrument is payable to bearer, it may be negotiated by transfer of possession alone.”

    jg: The note says the LENDER may transfer it. NO WHERE DOES IT SAY MERS MAY TRANSFER THE NOTE.
    No where in the deed of trust does it say ‘mers’ may transfer the beneficial interest in the dot – you know, the interest mers says it only “holds legal title to”. B may own ‘legal title’ to A’s interest in a contract? Talk about absurd. But, in that case, it doesn’t have to because Mers is thee ben, a big mistake they made when audaciously implementing MOM’s, but which they will get away with until the cows come home because the true ramifications are undesirable to everyone except those it impacts most. Some cases just boggle the mind. 1 + 1 becomes three with no rationale or explanation. In Edelstein (att J. Hafter by memory), the NV SC said, without reasoning as I recall, that mers is not the ben despite language in the dot. In Edelstein, the court acknowledged, at the same time it ruled mers was not the ben, the original bifurcation of the note and dot but said that they may be RE-unified for enforcement under Restatement (third) of Property (Mortgages) Section 8.2 cmt a (l997), but didn’t share the language in 8.2 in its decision.

  16. No Jg, won’t drink the “water,” aka Kool-Aid your serving.

    I know there’s a difference between an affirmative defense and a absolute defense in Garfieldland, but regrettably for you, not here on planet earth.

  17. Rock said: There is abundant legal authority for the proposition that mortgage notes, such as the one involved in this matter, are negotiable instruments governed by article 3 of the UCC.” In re Walker, 466 B.R. 271 (Bankr. E.D. Pa. 2012).

    jg: I’ll look at that case to see if the adjudication were any diff than in thousands of cases where these notes have been said to be negotiable instruments. There’s pretty much (yes, some exception) only been a bare naked stmt that these notes are neg instruments. But in all the cases I’ve seen where the court and claimants have said this, no one has argued otherwise with any clarity, no articulated arguments against what generally goes as a presumption. Adjudications often become precedent, true enough, but all adjudications are themselves made by
    interpretation of the law and then that interpretation is applied to what’s before the court. When a court cites the UCC to say these notes are negotiable instruments, it does so with an assumption already made that these notes belong in the category. Like when a court says pursuant to article 3 xx, this claimant has standing to enforce, the court has already decided, because the note says ‘promissory note” on it, that it’s regulated by the UCC. It further assumes, without explanation generally, that it’s article III of the UCC which regulates these notes.
    As I’ve said, others have argued they’re not neg instruments for the addl obligation made therein by the borrower to pay taxes or maintain ho insurance and courts have, to my knowledge, not been
    persuaded. Rock probably knows this, but for anyone who doesn’t, there’s been a school which believes or believed the obligation to do anything other than repay the note 86’s it as a neg instrument on the basis that a true neg instrument must limit the obligation of the maker recited in the note to repayment of the sum borrowed only. And that may be the case – these people may be right, but I haven’t chosen to
    take it on.
    So what I’m saying is that the UCC is default law – because it is. But, as to agreements which qualify as “commercial paper”, and this would be by their terms not their names imo, they would fall under reg by the UCC, as courts say, but without bothering to say why.
    It’s my opinion these notes were consciously written to restrict the party who may enforce to preclude enforcement by those who shouldn’t. Yes, they used the word “holder”, but they expressly stated who that is – one who has taken by transfer, not negotiation, AND is entitled to payment.
    So in doing, they willfully deviated from the UCC’s article 3 definition of holder.
    The UCC’s definition would find one in poss of a bearer note a holder.
    Rock, you apparently don’t agree, and you certainly don’t have to, but
    the language says what it says. They may have done it for other reasons I haven’t figure out yet and may never, also. But if I had to guess, it’s about these loans being secured by real property and often owner-occupied property. Or any way of looking at that is that no one may ever take these notes free of statutes which create defenses to the notes as a matter of law and in fact, some of which may 86 the note. I really can’t say why all, but the restricting language IS there. It’s hardly absurd to point it out. And I don’t know but suspect that a lender needn’t (otherwise) apprise a borrower he is signing a negotiable instrument. If a lender needn’t, a ‘notification’ in the note probably wouldn’t be there. What passes as a notification is imo a deviation to restrict the enforcement. I guess I can’t actually say that movement is restricted to transfer unless it’s a f a c t that the language in the note creates its own definition of ‘holder’, but clearly enforcement is restricted, so as far as the maker goes, it’s the same thing. In other words, it’s possible the notes could be moved by negotiation, but enforcement requires transfer and right to payment. If so, that makes it some kind of hybrid.
    What the note says actually gels with it being secured by real estate and certainly consumer-laws. For one thing, take 3, if someone attempts to enforce the note without its security, the creditor has lost his security as a matter of law, at least in states which have the security first rules and maybe the one-action rule. Most people here probably aren’t even aware of these rules which can kill a lender. Security first, succinctly: if ABC comes after you under UCC 3 with a bearer note and seeks enforcement of that bearer note, under the security first rule, the collateral is toast. Here’s an example, not a good one maybe, but still an example: Maker owes ABC a note secured by his home. XYZ has poss of that note and its a bearer note (blank end). XYZ files suit against maker and tries to enforce the note. Maker is clueless and ABC gets a judgment against maker, records it, and ultimately hits Maker’s bank account for 439.00. Maker get mad, gets an attorney. Attorney files suit against abc and xyz and prob some john does for quiet title. Disregarding any time considerations, att wins for his client because the note was enforced without the coll instrument. The coll is forfeited as a matter of law. But just by filing the suit based on just the note, the collateral is probably forfeited as the matter of law. I’ve seen cases, as I recall, where abc was Maker’s bank and abc just hit Maker’s bank account because his note was overdue; loss of collateral as matter of law.
    This is what may happen to a trust, say, or anyone whose note someone tried to enforce (or they did themselves) without the collateral instrument. So if Shady Servicer had the note but not an assgt of the dot, and SS goes after someone with the note, the trust or whomever has lost its collateral. This is another reason I believe the lenders sought to restrict enforcement. Shady servicer, the mailman or fed x guy could cause them to lose their security as a matter of law. These notes, probably more so than any others used in commerce, esp since mers and sec’n, are known to be notes that are going to (or should) see a lot of physical movement.

    I’m sorry you didn’t get it about an absolute (aka complete) defense, rock. I can only try to get you to the water.

  18. NPV, don’t try and create something that is not there. I’ve not once tried to sell anything here. I’ve only cited cases refuting the nonsense posted.

    Moreover, my original comment was “there have not been thousands of cases where the bank lost and the homeowner won.” So, please don’t insult my intelligence by showing an obscure case here and there. I’ve seen every case out there.

    Don’t do like the scammers and crackpots who cite MERS supposed losses. MERS has over 500 cases favorable to them, and the nitwits cite to the less than the handful they’ve lost, which BTW every other court in the country finds laughable.

  19. A complaint in public if they don’t respond, is probably good protection.
    How else can you protect your interest.
    They can deny receiving it or pretend your proof is not good enough.
    And if not in 20 days just a little more than that once you file the consumer protection complaint.

    Who would not protect their interest by at least logging a complaint with a bureau that is responsible for tracking bad debt collection habits, and bad contract procedures?

    Trespass Unwanted.

  20. Rock, did not have a loan mod company. You do sell a product and you did not provide an e-mail address. 60% were Fannie or Freddie owned, and yes the resets this year through 2017 will cause the next retreat in RE. fed can only do so much if incomes do not keep up with house prices…

  21. How to Recind a Mortgage
    The following information pertains to the right to recind an agreement between HSBC and a customer. It is quite lengthy, but very interesting. The information comes from the FTC and OCC, respectively, according to the submitter. Case law is included:

    I. TILA & Res Judicata
    (Analogous to Mr. Curtis xxxxxx , situation since he had never litigated fully or raised any TILA claims affirmatively or defensively) A rescission action may not be barred by prior or subsequent TIL litigation which did not involve rescission (Smith v. Wells Fargo Credit Corp., 713 F. Supp. 354 (D. Ariz. 1989) (state court action involving, inter alia TIL disclosure violations did not bar a subsequent action based on rescission notice violations in conjunction with same transaction which were not alleged or litigated in prior action) (See also In re Laubach, 77 B.R. 483 (Bankr. E.D. Pa. 1987) (doctrine of merger bars raising state and federal law claims arising from a transaction on which a previous successful federal TILA action was based; merger does not bar, however, rescission-based on the same transaction)).

    The Truth-in-Lending law empower Mr. Curtis xxxxxxx , to exercise his right in writing by notifying creditors of his cancellation by mail to rescind the mortgage loan transactions per (Reg. Z 226.15(a)(2), 226.23(a)(2), Official Staff Commentary 226.23(a)(2)-1) and 15 U.S.C. 1635(b).

    2. Security Interest is Void
    The statute and regulation specify that the security interest, promissory note or lien arising by operation of law on the property becomes automatically void. (15 U.S.C. 1635(b); Reg. Z 226.15(d)(1), 226.23(d)(1). As noted by the Official Staff Commentary, the creditor’s interest in the property is “automatically negated regardless of its status and whether or not it was recorded or perfected.” (Official Staff Commentary 226.15(d)(1)-1, 226.23(d)(1)-1.). Also, the security interest is void and of no legal effect irrespective of whether the creditor makes any affirmative response to the notice. Also, strict construction of Regulation Z would dictate that the voiding be considered absolute and not subject to judicial modification. This requires HSBC Mortgage Services to submit canceling documents creating the security interest and filing release or termination statements in the public record. (Official Staff Commentary 226.15(d)(2)-3, 226.23(d)(2)-

    3. Extended Right of Rescission
    The statute and Regulation Z make it clear that, if Mr. Curtis xxxxxxx , has the extended right and chooses to exercise it, the security interest and obligation to pay charges are automatically voided. (Cf. Semar v. Platte Valley Fed. Sav. & Loan Ass’n, 791 F.2d 699, 704-05 (9th Cir. 1986) (courts do not have equitable discretion to alter substantive provisions of TILA, so cases on equitable modification are irrelevant). The statute, section 1635(b) states: “When an obligor exercises his right to cancel, any security interest given by the obligor becomes void upon such rescission”. Also, it is clear from the statutory language that the court’s modification authority extends only to the procedures specified by section 1625(b).

    The voiding of the security interest is not a procedure, in the sense of a step to be followed or an action to be taken. The statute makes no distinction between the right to rescind in three day or extended in three years for federal and four years under Mass. TILA, as neither cases nor statute give courts equitable discretion to alter TILA’s substantive provisions. Since the rescission process was intended to be self-enforcing, failure to comply with the rescission obligations subjects Hsbc Mortgage Services Inc. to potential liability

    Non-compliance is a violation of the act which gives rise to a claim for actual and statutory damages under 15 USC 1640. TIL rescission does not only cancel a security interest in the property but it also cancels any liability for the Mr. Curtis xxxxxxxx , to pay finance and other charges, including accrued interest, points, broker fees, closing costs and that the lender must refund to Mr. Curtis xxxxxxxx , all finance charges and fees paid.

    In case HSBC Mortgage Services Inc. do not respond to this default letter, Mr. Curtis xxxxxxxx, has the option of enforcing the rescission right in the federal, bankruptcy or state court (See S. Rep. No. 368, 96th Cong. 2 Sess. 28 at 32 reprinted in 1980 U.S.C.A.N. 236, 268 (“The bill also makes explicit that a consumer may institute suit under section 130 [15 U.S.C., 1640] to enforce the right of rescission and recover costs and attorney fees”).

    TIL rescission does not only cancel a security interest in the property but it also cancels any liability for Mr. Curtis xxxxxxxx , to pay finance and other charges, including accrued interest, points, broker fees, closing costs and the lender must refund to Mr. Curtis E Frazier , all finance charges and fees paid. Thus,HSBC Mortgage Services Inc. are obligated to return those charges to Mr. Curtis xxxxxxxx , (Pulphus v. Sullivan, 2003 WL 1964333, at *17 (N.D. Apr. 28, 2003) (citing lender’s duty to return consumer’s money as reason for allowing rescission of refinanced loan); McIntosh v. Irwing Union Bank & Trust Co., 215 F.R.D. 26 (D. Mass. 2003) (citing borrower’s right to be reimbursed for prepayment penalty as reason for allowing rescission of paid-off loan).

    4. Step One of Rescission

    First, by operation of law, the security interest and promissory note automatically becomes void and the consumer is relieved of any obligation to pay any finance or other charges (15 USC 1635(b); Reg. Z-226.15(d)(1),226.23(d)(1). . See Official Staff Commentary 226.23(d)(2)-1. (See Willis v. Friedman, Clearinghouse No. 54,564 (Md. Ct. Spec. App. May 2, 2002) (Once the right to rescind is exercised, the security interest in the Mr. Curtis E Frazier’s property becomes void ab initio). Thus, the security interest is void and of no legal effect irrespective of whether the creditor makes any affirmative response to the notice. (See Family Financial Services v. Spencer, 677 A.2d 479 (Conn. App. 1996) (all that is required is notification of the intent to rescind, and the agreement is automatically rescinded).

    It is clear from the statutory language that the court’s modification authority extends only to the procedures specified by section 1635(b). The voiding of the security interest is not a procedure, in the sense of a step to be followed or an action to be taken. The statute makes no distinction between the right to rescind in 3-day or extended as neither cases nor statute give courts equitable discretion to alter TILA’s substantive provisions. Also, after the security interest is voided, secured creditor becomes unsecured.

    5. Step Two of Rescission

    Second, since Mr. Curtis xxxxxxxxx has legally rescinded the loans transaction, the mortgage holders (HSBC Mortgage Services Inc.) must return any money, including that which may have been passed on to a third party, such as a broker or an appraiser and to take any action necessary to reflect the termination of the security interest within 20 calendar days of receiving the rescission notice which has expired. The creditor’s other task is to take any necessary or appropriate action to reflect the fact that the security interest was automatically terminated by the rescission within 20 days of the creditor’s receipt of the rescission notice (15 USC 1635(b); Reg. Z-226.15(d)(2),226.23(d)(2).

    6. Step Three of Rescission

    Mr. Curtis xxxxxxx was prepared to discuss a tender obligation, should it arise, and satisfactory ways in which to meet this obligation. The termination of the security interest is required before tendering and step 1 and 2 have to be respected by HSBC Mortgage Services Inc.
    XIV. Conclusion

    When Mr. Curtis xxxxxxxx rescinds within the context of a bankruptcy, courts have held that the rescission effectively voids the security interest, rendering the debt, if any, unsecured (See Exhibit #6). (See in re Perkins, 106 B.R. 863, 874 (Bankr. E.D.Pa. 1989); In re Brown, 134 B.R. 134 (Bankr. E.D.Pa. 1991); In re Moore, 117 B.R. 135 (Bankr.E.D. Pa. 1990)).

    Once the court finds a violation such as not responding to the TILA rescission letter, no matter how technical, it has no discretion with respect to liability (in re Wright, supra. At 708; In re Porter v. Mid-Penn Consumer Discount Co., 961 F,2d 1066, 1078 (3d. Cir. 1992); Smith v. Fidelity Consumer Discount Co., Supra. At 898. Any misgivings creditors may have about the technical nature of the requirements should be addressed to Congress or the Federal Reserve Board, not the courts.

    Since HSBC Mortgage Services Inc. have not cancelled the security interest and return all monies paid by Mr. Curtis xxxxxxxx within the 20 days of receipt of the letter of rescission of April 4th, 2007, the lenders named above are responsible for actual and statutory damages pursuant to 15 U.S.C. 1640(a).

    HSBC Mortgage Services Inc. are to take any necessary or appropriate action to reflect the fact that the security interest was automatically terminated by the rescission (15 USC 1635(b); Reg. Z-226.15(d)(2),226.23(d)(2). This requires canceling documents creating the security interest and filing release or termination statements in the public record of FREE and CLEAR TITLE to Mr. Curtis xxxxxxx .

    If a lender fails to respond within twenty days to the notice of
    rescission, the ownership of the property vests in the borrowers and they are no longer
    required to pay the loan. See 1635(b); Staley v. Americorp Credit Corp., 164 F. Supp.
    2d 578, 584 (D. Md. 2001); Gill v. Mid-Penn Consumer Disc. Co., 671 F. Supp. 1021
    (E.D. Pa. 1987).

    7. Where, as here, if, a Creditors does not respond to a properly served and ignores a duly issued TILA notice of rescission, an Entry of default, is the appropriate and, indeed, just and only recourse. According to The Office of the Comptroller of the Currency, “a consumer’s right to rescind is not affected by the sequence of the rescission procedures or a court order modifying those procedures in both open and closed-end credit (Comptroller of Currency, OCC Bulletin 2004-19 (May 7, 2004)). Since the Creditors do not appear disposed to follow and to abide by the rule of law of the Federal Truth-In-Lending Law, this Court has as the only avenue available to conclude this matter, the entry of default against Creditors for failure to comply by illegally proceeding with a foreclosure action despite having received the TILA rescission notice that automatically void the security interest as described in 15 USC 1635(b).

    8. TILA Achieves its Remedial Goals by A System of Strict Liability To further this congressional policy TILA achieves its remedial goals by a system of strict liability in favor of consumers when mandated disclosures have not been made. 15 U.S.C. 1640(a) (emphasis added). The standard applied is considered “strict liability in the sense that absolute compliance is required and even technical violations will form the basis for liability.” Shepeard v. Quality Siding & Window Factory, Inc., supra. at 1299; In re McElvany, 98 B.R. 237, 240 (Bankr. W.D. Pa. 1989). This means that “technical or minor violations of TILA, or Reg. Z, as well as major violations impose liability on the creditor and entitle the borrower to rescind [the loan].” Smith v. Wells Fargo Credit Corp., 713 F.Supp. 354, 355 (D.Ariz. 1989); Jackson v. Grant, 890 F.2d. 118, 120 (9th Cir. 1989); Semar v. Platte Valley Fed. S & L Assoc., supra. at 704.

    This rule is inviolate and is followed by courts in all jurisdictions. See, e.g., Smith v. Fidelity Consumer Discount Co., 989 F.2d 896, 898 (3rd Cir. 1990)(The federal Truth in Lending Act (TILA) achieves its remedial goals by a system of strict liability in favor of consumers when mandated disclosures have not been made); Lewis v. Dodge, 620 F.Supp. 135, 138 (D. Conn. 1985); In re Porter, 961 F.2d 1066 (3rd Cir. 1992); Rowland (John M., Carol S.) v. Magna Millikin Bank of Decatur, N.A., 812 F.Supp. 875 (C.D. Ill. 1992) (“even technical violations will form the basis for liability”); New Maine Nat. Bank v. Gendron, 780 F.Supp. 52 (D. Me. 1992); Dixon v. S & S Loan Service of Waycross, Inc., 754 F.Supp. 1567 (S.D. Ga. 1990); Woolfolk v. Van Ru Credit Corp., 783 F.Supp. 724 (D. Conn. 1990) (same with Unfair Debt Collection Practices Act); Morris v. Lomas and Nettleton Co., 708 F.Supp. 1198 (D. Kan. 1989); Jenkins v. Landmark Mortg. Corp. of Virginia, 696 F.Supp. 1089 (W.D. Va. 1988); Laubach v. Fidelity Consumer Discount Co., 686 F.Supp. 504 (E.D. Pa. 1988); Searles v. Clarion Mortg. Co., 1987 WL 61932 (E.D. Pa. 1987); “Liability will flow from even minute deviations from requirements of the statute and Regulation Z.” Dixon v. S & S Loan Service of Waycross, Inc., 754 F.Supp. 1567, 1570 (S.D. Ga. 1990); Shroder v. Suburban Coastal Corp., supra. at 1380; Charles v. Krauss Co., Ltd., 572 F.2d 544 (5th Cir. 1978).Shroder v. Suburban Coastal Corp., 729 F.2d 1371, 1380 (11th Cir. 1984) ; Goldberg v. Delaware Olds, Inc., 670 F.Supp. 125 (D. Del. 1987); Curry v. Fidelity Consumer Discount Co., 656 F.Supp. 1129 (E.D. Pa. 1987); Laubach v. Fidelity Consumer Discount Co., 1986 WL 4464 (E.D. Pa. 1986); In re Wright, 133 B.R. 704 (E.D. Pa. 1991); Moore v. Mid-Penn Consumer Discount Co., 1991 WL 146241 (E.D. Pa. 1991); In re Marshall, 121 B.R. 814 (Bankr.C.D. Ill. 1990); In re Steinbrecher, 110 B.R. 155 (Bankr.E.D. Pa. 1990); Nichols v. Mid-Penn Consumer Discount Co., 1989 WL 46682 (E.D. Pa. 1989); In re McElvany, 98 B.R. 237 (Bankr.W.D. Pa. 1989); In re Johnson-Allen, 67 B.R. 968 (Bankr.E.D. Pa. 1986); In re Cervantes, 67 B.R. 816 (Bankr.E.D. Pa. 1986); In re McCausland, 63 B.R. 665, 55 U.S.L.W. 2214, 1 UCC Rep.Serv.2d 1372 (Bankr.E.D. Pa. 1986); In re Perry, 59 B.R. 947 (Bankr.E.D. Pa. 1986); In re Schultz, 58 B.R. 945 (Bankr,E.D. Pa. 1986); Solis v. Fidelity Consumer Discount Co., 58 B.R. 983 (E.D. Pa. 1986).

    Violation of the rule of law, since neither you nor any of the defendants have Standing to pursue foreclosure action because, once TILA notice of rescission is given, the lien or security interest in plaintiff’s property becomes void ab initio, even if a court has not yet ruled on the validity of the plaintiff’s rescission (Willis v. Friedman, Clearinghouse No. 54,564 (Md. Ct. Spec. App. May 2, 2002)).

  22. NPV, number one, I did say I don’t know everything, but I do know foreclosure law.

    Number two, I don’t ever recall selling anything.

    Number three, be very careful in throwing out #’s regarding loan mods. Do you know how many thousands of loan mod companies have made the same claim you did, which is ridiculous when there’s only been a total of 1.4 million. Moreover, Fannie & Freddie own well over 90% of all non-jumbo loans and they don’t do principle reductions.

    Number four, no matter what the actual number of loan mods you’ve done, I doubt seriously any had anything to do with evidence problems.

    Number five, “Borrowers with Modified Loans Redefaulting at ‘Alarming’ Rates”http://www.appraisalinstitute.org/BorrowerswithModifiedLoansRedefaultingat‘Alarming’Rates/

    BTW, I’m still waiting on all of those cases.

  23. Rock, so you admit that you do not know everything. I’ve helped over three thousand homeowners receive workouts, many of which included PRA, making it a true win for the homeowner.

    I have done the research on 100’s of cases now languishing because the plaintiff is not sure how to proceed.

    I have been directly involved in cases that have dragged on 9 years now, many of which were originally defeated on standing and FTSAC, and now refiled by the Trustee. if those cases were not challenged – the homeowner would have been out years ago, and many that wanted to stay have received better terms and under the PRA.

    I don’t care how you want to slice it up – those are wins that were based on research that (admittedly based partially on mortgage terms, but more consistent with assignments and fabricated documents.

    Now, i have already admitted that those days are over, and that the banks (working together as an industry) have overcome those hurdles to an extent under the UCC and blank indorsement.

    Fortunately, the folks who have chosen not to take modifications or just want to move forward have saved enough over the past “upteen” years to purchase homes for cash.

    Like Charlie Sheen, they are “Winning”.

    That may not forward your argument for the product you sell, but claiming that a client, which achieves their ultimate individual goal, and is moving forward in life happier and richer has not won is self serving, and you know it.

    Finally, I am not saying that working on Wall Street makes me some type expert, but it allowed me to see firsthand how things actually occurred, who bought what, who sold to who, certain banking clicks that were formed, who bought the mortgage banks paper, how wholesale lending worked for each thrift or N.A., who serviced loans for whom, who wrote the worst paper.

    If you do not think that having that experience is helpful, you are sadly mistaken and intentionally avoiding the truth to further your own ideals and product. Similarly speaking, just because you are not a licensed attorney, and may have some sort of paralegal background, it just means you can practice it!

    Not having a law license also does not mean your understanding of the legal industry is not helpful. I readily admit you make great points, but you fail to see that your way of doing things is not the only way to provide a successful defense.

    Oh yeah, why don’t you send me 10 cases that you personally have worked on that have provided a free house and damages awarded to the homeowner. Provide exact details of what you did that made the difference…

    …and I still love you and agree with much that you are saying.

  24. David, the banks lie, cheat and steal and so do the title companies, closing attorneys, realtors and mortgage brokers. How do I know this? The attorney who did the closing on my house was arrested 3 months after my closing and was indicted for wire fraud and did 3 years in the federal pen. He was involved in many, many closing transactions here. The mortgage broker was fired for creating illegal transactions and misrepresenting terms in mortgages.

  25. Belanger, thanks for posting another win for a homeowner who attached the mortgage transaction. http://www.bizjournals.com/washington/prnewswire/press_releases/Georgia/2014/01/07/MN41655?ana=prnews

  26. this is for our good friends rock and christene,

    That’s right. Mary beat the bank. Again.

    In an appeal, U.S. Bank tried to get out of paying Mary McCulley the $6 million a Montana jury awarded her back in 2014. Yesterday, the Supreme Court of Montana decided against U.S. Bank—they’re going to owe McCulley the $6 million, plus interest from the earliest possible date they could owe it, not the later one that had been bandied about.

    Here is the Court’s own synopsis:

    Mary McCulley bought a condominium in Bozeman and sought a 30-year, residential loan for $300,000 from Heritage Bank, which later merged with U.S. Bank. She later sued the Bank, alleging the Bank defrauded her by instead issuing an 18-month, $300,000 commercial loan, and failing to notify her of the change. When McCulley could not obtain refinancing and the condominium went into foreclosure, she attempted suicide. The jury found that the Bank defrauded McCulley and awarded her $1,000,000 in compensatory damages and $5,000,000 in punitive damages, which the District Court approved.

    On appeal, U.S. Bank argued that testimony it had offered from a former bank officer and McCulley’s medical records were improperly excluded from evidence; challenged the sufficiency of the evidence to support the jury’s finding of fraud; argued that U.S. Bank could not be held liable for punitive damages arising out of Heritage Bank’s conduct that preceded the merger of the banks; and challenged the propriety of the punitive damages award. McCulley cross-appealed the date set by the District Court for interest to begin accruing on the judgment.

    The Montana Supreme Court concluded that, because U.S. Bank had failed to provide the bank officer’s journals to McCulley during the discovery process, the officer was prohibited from testifying with respect to the journals. The Court further concluded that because U.S. Bank failed to lay a proper evidentiary foundation for McCulley’s medical records, they were properly excluded. The Court held that fraud was demonstrated because evidence at trial established that the Bank falsely represented it would provide a 30-year, residential loan to McCulley, the Bank knew the representation was false, and the Bank intended McCulley to rely on the false representation, which she did to her detriment. The Court also held that, because the federal Bank Merger Act required U.S. Bank to assume “all liabilities” of Heritage Bank, U.S. Bank was properly held liable for all damages, including punitive damages, arising out of Heritage Bank’s conduct, and that circumstances proven during the trial supported the punitive damages award because the Bank’s conduct was reprehensible, the ratio between compensatory damages and punitive damages fell within the guidelines provided by the United States Supreme Court, and the statutory cap on punitive damages provided by the Montana Legislature was not exceeded. Lastly, the Court concluded that interest on the judgment must accrue from the date of the jury’s verdict, not the date of District Court’s post-trial decision approving the award. Thus, the Court affirmed the damages judgment, and reversed the calculation of interest on the judgment.

    That friends, is a sweet, sweet victory, for Mary and for bank fighters everywhere. It gives all of us at least a modicum of hope that the banks will be held accountable for their misdeeds. At the very least, it is an acknowledgment that, as Mary herself said:

    Hey wake up! The banks do lie, cheat, and steal.

  27. Endthefed, hate to pee on your parade, but that case is on appeal.

  28. johngault, you’re constantly making ridiculous statements but I’ve only addressed the must ludicrous.

    You started off the week stating there was a difference between an affirmative defense and a absolute defense, just absurd. Now, your claiming a promissory note is not a negotiable instrument aka commercial paper, even more absurd.

    “There is abundant legal authority for the proposition that mortgage notes, such as the one involved in this matter, are negotiable instruments governed by article 3 of the UCC.” In re Walker, 466 B.R. 271 (Bankr. E.D. Pa. 2012).

    Posting misinformation whether it comes from a scammer or legal illiterate only harms homeowners. Nonetheless, you should really learn some law before you post anymore moronic comments.

  29. JG
    The women is just terribly constipated.

  30. j, j, and mary, christine. give it a rest, will you? Are you the real cosmic whine? Say something (constructive). I’m giving up on you. But at any rate, you’re just not going to indoctrinate the people who contribute here. It’s such a drag to check in to see whaddup and have to read your stinking whining instead of something useful. I mean, come on, woman. You claim ad nauseum to be a ‘winner’, but for those it might help, you can’t even offer anything sound other than your standard, rote “go on the offensive”. wow. that’s heavy.

  31. endthefed , wow that’s a good one. E.tolle, don’t miss it! I knew it was illegal to hold oneself out as a corporation when not a corporation and that those endorsements on AWL’s notes were bs. Maybe the banksters will appeal (or have), but good luck since the judge made no error nor abused discretion imo. Finally, a judge who applies real law to real facts….the proper application of the law. Woohoo. Thank you for posting this case. Imo, those guys willfully called a dba a corporation for double-dipping, double-selling, or something equally untoward and it finally, finally appropriately kicked them where it hurts. There’s no explanation for a business with the kind of brains they could assemble to have done this for any legit reason. I haven’t taken business law for many years, and still I know you can’t call yourself a corporation when not (it’s illegal with reason).
    This decision, because it’s in a lower court, isn’t precedential, but in my book, it’s certainly persuasive, and if I were faced with an AWL complaint, I wouldn’t hesitate to plagerize the reasoning for the decision. The court found the loan void because there was no such entity as “awl, a ny corporation”. It also found the endorsement pure bunk, then. People who had their homes snarfed by that gang probably can’t get them back if for no other reason than that they’ve been sold to likely bf purchasers or at least that would be the argument. But, in equity, could one get recompense, say 4 years later, because the loan was void? The only way I know to find out is to knock yourself out researching equity trumping res judicata, right after your crystal clear that the reason the court found the loan void was a legal consequence and not a punative one. Because this case isn’t precedential, it can’t be used like jasinowski, at least not outside the case’s jurisdiction) imo. But how is it they got away with this for so long?

  32. Truly remarkable… Sociologists worldwide must have a field day studying the thousands and thousands of websites visited by people too afraid of making a decision without first running it by others, equally lost and unable to think straight but not afraid of throwing good money at losing propositions peddled to them by unscrupulous sharks.

    People do come here to think out loud, hoping (maybe) that someone will validate their dementia by echoing it. They don’t come here to learn how to take positive action while enjoying life. They don’t come here to analyse why what they did didn’t work out and guard others against following their foot steps. They come here to… kill time? Feel worthy? Fill some emotional need? Find solace?

    This country is in such deep emotional and intellectual S*&%!

  33. Sadly, We The People are now the indigenous tribes ripe for violation.

    During the War for Independence the saying was thus: “The redcoats are coming”.

    The saying was meant to inspire fear and provoke a willingness to flee.

    The truth is: The redcoats are here and they have never left.

    The Republicans are the redcoats.

    I choose colonial blue.

    Not far from where I am writing this, Captain Samuel Allen hanged red-coated Loyalists. I admire Captain Allen.

    The central bankers are red-coated Loyalists.

    Hillary Clinton is a red-coated Loyalist.

    It is beyond absurd to suggest any of the clown-car Republicans are anything but red-coated Loyalists.

    The Constitution is a sacred document.

    The Constitution speaks to and for “We The People”.

    President Obama no longer speaks to or for “We The People”.

    I doubt any of the red-coated applicants for his job: Romney, McCain, Palin, Bachman etc., could have ever posed as having it in mind to speak for the Constitution or “We The People”.

    The government, my friends, is not the enemy.

    It is, instead, our friend.

    It is our strength.

    The government derives its power from “We The People”.

    The banks are our enemy.

    Money in our politics is our enemy.

    Our politicians must be made to support and swear an oath to our Constitution.

    Jail the bankers.

    Investigate Wall Street.

    Undue Usury.

    End the Fed; return the central bank as a Public Utility that enriches Public coffers-NOT Private Pockets.

    Renounce the central banker debt. It is predicated upon 100 years of fraud.

    Re-instate the “Greenback”; pro rate and recapture the hyper-inflationary “Federal Reserve Notes” vis-à-vis the new issues of “Greenbacks”.

    The “Trusts” are empty.

    The “Notes” are beyond redemption. The titles to land ownership are HOPELESSLY CORRUPTED.

    Foreclosures are predicated upon falsehood.

    The falsehood must result in foreclosure or the present, insolvent condition of the red-coated, Loyalist Bankers will end the current international, red-coated central banking paradigm.

    Your present foreclosed condition is part of a pre-ordained “Boom-and-Bust Cycle” brought to you by the likes of Hillary Clinton and the red-coated republican clown car that has hijacked your Constitution and the well-being of our country, to say nothing of our planet.

  34. One of these days I’ll get around to demonstrating that an assignment requires acceptance. In the meantime, is (allegedly) a trustee on behalf of a trust taking a note post-cut-off “taking a note in good faith” (even if value is given and taken ‘without notice’? Does this trustee not know that the note and dot were already paid for and transferred to the trust if the psa were followed? What, he just found out it wasn’t? If he takes it now, IS this taking it in good faith, knowing its consequence to the
    trust beneficiaries to whom he owes a fiduciary? We know very little of not having good faith in the “good faith” requirement to have hdc status (if the notes are negotiable). But it seems to me that’s not taking a note in good faith. If a trust paid for a note and didn’t get it, the trust has a sec interest. But that wasn’t a true sale, right? The banksters, post-cut-off, want to complete the sale or at least appear to (but with a doc which purports it’s sale is a current event). May a REMIC trust convert its assets from a sec interests to one of ‘complete ownership’ under trust law and isn’t that what’s going on if the assignments are to be believed? (And then if that’s all they got – sec interests for paid for notes, isn’t it that the trust never qualified as a tax-preferential remic?
    (that wouldn’t defeat it as a common trust maybe)
    But why, then, did the banksters years ago try back-dated assignments with current notary acknowledgements, which were defeated by litigants and courts? Why did they try blank assignments (no named assignee), which were then defeated? WHAT was it that stopped them years ago from assigning late to trusts and what has changed to make them think they can just assign now, years later as if it’s nada? Is it that courts prefer it that way, I mean that courts want it done so who cares how? Aren’t courts aiding and abetting then if it’s a breach of fiduciary for a trust to accept a late asset? There’s such a thing as ‘third party breach of fiduciary’. Courts are generally immune, but still, even if they enjoy immunity, is that what they’re doing since by now, they know what the trust docs generally say and must have an inkling of remic law?

  35. Or maybe if these notes were negotiable (not), one could be a hdc, except one could find himself with no note to a hdc of. I’d have to go back and see the exact tila language re: the rescinded note to make that determination, i.e., if the note is negotiable, is one a hdc where repayment UNDER THE NOTE is no longer what’s due because what’s due is a new and diff obligation: tender after return of goodies to maker.

  36. Rule 902. Evidence That Is Self-Authenticating

    The following items of evidence are self-authenticating; they require no extrinsic evidence of authenticity in order to be admitted:

    (1) Domestic Public Documents That Are Sealed and Signed. A document that bears:

    (A) a seal purporting to be that of the United States; any state, district, commonwealth, territory, or insular possession of the United States; the former Panama Canal Zone; the Trust Territory of the Pacific Islands; a political subdivision of any of these entities; or a department, agency, or officer of any entity named above; and

    (B) a signature purporting to be an execution or attestation.

    (2) Domestic Public Documents That Are Not Sealed but Are Signed and Certified. A document that bears no seal if:

    (A) it bears the signature of an officer or employee of an entity named in Rule 902(1)(A); and

    (B) another public officer who has a seal and official duties within that same entity certifies under seal — or its equivalent — that the signer has the official capacity and that the signature is genuine.

    (3) Foreign Public Documents. A document that purports to be signed or attested by a person who is authorized by a foreign country’s law to do so. The document must be accompanied by a final certification that certifies the genuineness of the signature and official position of the signer or attester — or of any foreign official whose certificate of genuineness relates to the signature or attestation or is in a chain of certificates of genuineness relating to the signature or attestation. The certification may be made by a secretary of a United States embassy or legation; by a consul general, vice consul, or consular agent of the United States; or by a diplomatic or consular official of the foreign country assigned or accredited to the United States. If all parties have been given a reasonable opportunity to investigate the document’s authenticity and accuracy, the court may, for good cause, either:

    (A) order that it be treated as presumptively authentic without final certification; or

    (B) allow it to be evidenced by an attested summary with or without final certification.

    (4) Certified Copies of Public Records. A copy of an official record — or a copy of a document that was recorded or filed in a public office as authorized by law — if the copy is certified as correct by:

    (A) the custodian or another person authorized to make the certification; or

    (B) a certificate that complies with Rule 902(1), (2), or (3), a federal statute, or a rule prescribed by the Supreme Court.

    (5) Official Publications. A book, pamphlet, or other publication purporting to be issued by a public authority.

    (6) Newspapers and Periodicals. Printed material purporting to be a newspaper or periodical.

    (7) Trade Inscriptions and the Like. An inscription, sign, tag, or label purporting to have been affixed in the course of business and indicating origin, ownership, or control.

    (8) Acknowledged Documents. A document accompanied by a certificate of acknowledgment that is lawfully executed by a notary public or another officer who is authorized to take acknowledgments.

    (9) Commercial Paper and Related Documents. Commercial paper, a signature on it, and related documents, to the extent allowed by general commercial law.

    Commercial paper, often:
    An unsecured obligation issued by a corporation or bank to finance its short-term credit needs, such as accounts receivable and inventory. Maturities typically range from 2 to 270 days. Commercial paper is available in a wide range of denominations, can be either discounted or interest-bearing, and usually have a limited or nonexistent secondary market. Commercial paper is usually issued by companies with high credit ratings, meaning that the investment is almost always relatively low risk.

    Commercial Paper, apparently as meant by Rock:

    “A written instrument or document such as a check, draft, promissory note, or a certificate of deposit, that manifests the pledge or duty of one individual to pay money to another.

    Commercial paper is ordinarily used in business transactions, since it is a reliable and expedient means of dealing with large sums of money and minimizes the risks inherent in using cash, such as the increased possibility of theft.

    One of the most significant aspects of commercial paper is that it is negotiable, which means that it can be freely transferred from one party to another, either through endorsement or delivery. The terms commercial paper and negotiable instrument can be used interchangeably.”

    jg: I’m staying at these notes aren’t commercial paper because they’d have to be freely negotiable; they’re not freely negotiable because by their clear and unambiguous terms they require transfer, not negotiation, as well as right to payment to enforce and because of all the statutory defenses available (not just contractual defenses, i.e, those available under the express terms of the note, but statutory). These promissory notes do evidence the ‘pledge and duty of one individual to pay money to another’, but there are contractual caveats regarding enforcement not found in other promissory notes, as well as statutory mandates for their enforcement (not relevant to other promissory notes used in commerce). A case I linked the other day re: Ameriquest and Deutsche and tila found Deutsche, who was even without actual notice of the rescission, subject to the rescission. A holder’s subjection to rescission, say, which is an absolute defense to a note when timely made (since a timely made NOR 86’s the note and the collateral), is not a defense at all, it’s a state of affairs. That “state of affairs” is not one which is even on the radar in UCC article 3 when it states the limited defenses available to a hdc, at least suggesting (as opposed to demonstrating) that these notes aren’t ‘commercial paper’.
    No one may take one of these notes without being subject to at least rescission by way of statute; thus imo, no one may become an hdc, an article 3 definition and state of affairs because no one may ever only be subject to the defenses articulated in article three as to a holder in due course. No one will ever have an absolute right to payment of the amt of money stated in the note, due on the note, or which he laid out because of other statutes relating to home loans, either, at least in some states (anti-deficiency laws, for example). It may be there are laws about which I know zilch which would preclude satisfaction on ‘general’ commercial paper (and here i don’t mean defenses, I mean laws, but if so, that’s not my problem or concern.
    I’m not stating this stuff as fact; just way I see it, and it’s staying that way until someone intelligently overcomes my arguments. The note says what it says and consumer protection laws can and will defeat the
    hdc provisions of the ucc article 3. Courts have generally defeated the borrower’s obligation to pay taxes or whatever else like that it says in these notes, claiming that additional obligation doesn’t preclude them from being negotiable instruments. Got me, but it sure looks like the rest of it does.

    “Since commercial paper constitutes Personal Property, it is transferable by sale or gift and can be loaned, lost, stolen, and TAXED. Commercial paper is a specific type of property primarily governed by article 3 of the Uniform Commercial Code (UCC), which is in effect in all 50 states, the District of Columbia, and the Virgin Islands. Although Louisiana has not enacted all the articles of the UCC, it has adopted article 3.”

    (10) Presumptions Under a Federal Statute. A signature, document, or anything else that a federal statute declares to be presumptively or prima facie genuine or authentic.

    (11) Certified Domestic Records of a Regularly Conducted Activity. The original or a copy of a domestic record that meets the requirements of Rule 803(6)(A)-(C), as shown by a certification of the custodian or another qualified person that complies with a federal statute or a rule prescribed by the Supreme Court. Before the trial or hearing, the proponent must give an adverse party reasonable written notice of the intent to offer the record — and must make the record and certification available for inspection — so that the party has a fair opportunity to challenge them.

    (12) Certified Foreign Records of a Regularly Conducted Activity. In a civil case, the original or a copy of a foreign record that meets the requirements of Rule 902(11), modified as follows: the certification, rather than complying with a federal statute or Supreme Court rule, must be signed in a manner that, if falsely made, would subject the maker to a criminal penalty in the country where the certification is signed. The proponent must also meet the notice requirements of Rule 902(11).

    * * * * *
    Back to Rock’s comment and his reliance:

    “9) Commercial Paper and Related Documents. Commercial paper, a signature on it, and related documents, to the extent allowed by general commercial law.”

    As this is his sole reliance, Rock has failed imo to support that these notes are commercial paper. Maybe he’ll give us his best shot instead of asking us to make a presumption…?
    And after that, perhaps he’ll explain the “extent allowed by general
    commercial law”. I may have gotten to the speech and debate team late, but I got here, and I’m personally presuming nothing.

  37. ENDtheFED

    Good case indeed. One out of… how many?
    Note that the defendant had an attorney.
    It doesn’t say anything about the (prevailing) defendant having wasted money on useless securitization audit.

    A lot of what the judge wrote is common sense and elementary research anyone can do on his own and… there was an attorney. Nash didn’t plead nonsense and was able to complete discovery. That would make it a rarity. Nobody posting here.

  38. Rock,

    Post your wins.

  39. NG: “I would say that the proponent of such an assertion must prove it rather than rely on the presumptions used in connection with “negotiable” instruments —

    **particularly when the “negotiation” took place when the loan was already in default, meaning that it was NOT a negotiable instrument.”

    I believe, as I’ve said, that because of the language in the agreement itself – “one who takes by TRANSFER (v negotiation) and is entitled to payment”) these notes may not be enforced by a party who has taken it by the negotiation contemplated in the UCC (mol poss of a bearer note). Agreement v UCC: the Agreement rules. Were it not for that language, these notes might be enforceable as a result of “negotiation”, but the parties, the lender and the borrower, agreed otherwise, as they may readily do (“unless the parties agree”). But, NG, to say that a note is no longer negotiable( if it were in the first place) because it’s in default is saying a bit of a mouthful, and one you didn’t support for your readers. As far as I know, “negotiation” is a term and action only found in Article 3. To the extent that that term and action apply to a note pursuant to art 3, so do the terms “holder” and “holder in due course”. Imo, a note which is in default could still be negotiated, it would just find the “holder” not a hdc, as would the failure of consideration and or not taking it in good faith. The taking in “good faith” requirement is something which even people who prescribe to ‘negotiation’ for these notes haven’t addressed, but then, neither have they addressed the diff between a holder and a holder in due course and relevant defenses. At ay rate, I think you should explain why if a note is negotiable, default means it’s no longer negotiable.

    The other day I posted some info from an accting website which stated that the value of a secured note is its collateral. That’s especially true with these notes in states where deficiency judgments aren’t allowed.
    Here’s what we and courts are being made to believe, not necessarily in order of their import (this is assignments to trusts from “mers”:

    1) the assignments are current events (that’s what they say)
    2) the transferee is paying good and valuable consideration for the
    loan (assignment)
    3) MERS has either a) the interest in the note to transfer or 2) has
    the requisite power of attorney of the last note owner, so where is it?
    They may have gotten it, but where is it? Where is there otherwise
    any indication mers either has the interest in the note or the poa to
    transfer it? Let’s say ‘mers’ (read servicer employee or who knows who wearing mers’ hat) wants to transfer the notes to the trust as they’re claiming to be doing. From WHOM would they need to get the poa? If mers now has the interest in the notes, how they’d get it? Let’s also say ‘mers’ got its hands on the note and it’s a bearer note, so by way of article 3, mers may enforce. Okay. (not with me, though). But may mers SELL the note? Can one in poss of a bearer note (by an alleged negotiation) SELL it?

    4) The trust is buying loans in default and with reduced collateral
    and probably paying for notes where, since the loan is in default,
    the borrower is uncollectible even in states which allow deficiency judgments. (How much is actually paid for the notes is paramount,
    because one is only a hdc to the extent of payment made. To the extent payment is not made, the transferee / buyer is merely a holder (using UCC) and subject to all affirmative defenses. Whether or not recoupment (here I mean defenses and counter-claims which would otherwise be beyond their statutes of limitations) is available against a hdc, got me, but tila, for instance, has successor liability and that would include a holder in due course as no one may take these notes free of
    tila claims. I haven’t otherwise seen hdc and recoupment addressed.( just don’t believe these notes are negotiable – too many laws surrounding / impacting them plus the language in them.) Defenses to a a holder in due course, the default law ucc art 3 term, is limited as a matter of law. But, no one takes these notes free of the ramifications of tila violations of the original creditor, and enforcment is restricted by other laws, like security first, the one-action rule, anti-defiiency laws, and so on. In other words, someone could pay 500k in good faith for a note and by law only be able to collect 200k (the value of the collateral).

    In years past (not 2008, it was in 2011 at sourceoftitle that I stated errantly that an agent must execute in a certain manner),
    I attacked the assignments of the collateral instruments because they aren’t executed by MERS as agent for so an so because i believed that’s how an agent would execute (and that the language in the first para or so of the assgt like “Mers as nominee for orig lender its sucessors and or assigns” didnt change the way they must, as an agent, execute. Well, I was wrong. The way I described it is how an attorney in fact would assign. Agents may do a lot of things by agreement, but they may not transfer the interest of their principals. Only an att in fact may. MERS is executing those assgts of the coll instruments in their own right because Mers IS the beneficiary. It’s the beneficiary because the lender nominated MERS to be so. The, or A proof imo that mers is thee ben is in the manner of execution of the assignments. MERS doesn’t sign as power of attorney for anyone else, and as a ‘mere’ agent, it may not assign its principal’s interest. This is just business law, as I’ve said. So even if mers is the ben as the agent of ABC, great,but MERS is still thee ben. As an agent, still can’t transfer the principal’s interest under agency. Call up a title company and ask if you may make your bud your agent to sign a deed or closing docs for you. You’ll get a “Not!” See what you’ll get told you need to do (make him your ‘limited attorney in fact” by executing a limited power of attorney.) Mers is thee ben and obviously, it’s by design. For money to MERSCorp out of members, a member says Mers will do this or may do that and MERSCorp agrees to do this and agrees not to do that.
    Pretty sure I read that Merscorp didn’t even vet anyone. Someone wanting to be a member simply executed the membership agreement and paid the dough for the membership. This allowed members to do
    things in mers-the-ben’s name (with no oversight) that mers had no intention of doing itself with its own employees (because it had none). So once a ‘lender’ paid its mmsp fee and as long as it paid its annual mmsp dues and paid mers a fee each time it acted with its own employee in mers’ name, everything worked for them. The borrower was told that mers could f/c in a dot (not signed by the lender) if by law or custom. As to “by law”, some states unbelievably allow a ben to f/c
    without a note. Wish someone would explain that to those of us who are still incredulous since it’s the note default which triggers the right to sell in a dot.
    In the assignments, Mers is also purporting to (sell and ) assign the notes (as current events). I’m still at “say what?!” on that one. They are purporting imo a transfer of these notes, not a negotiation.
    Because MERS is the one and only ben, subject to the alleged control of MERSCorp members in exchange for money to MERSCorp, and which members then pay to act in mers’ name using their own employees, those county recorders weren’t owed the monies they wanted because mers thee ben hadn’t transferred the collateral instruments even if there were movement of the note. Which begs a question: MUST there have been a transfer of the collateral instrument by its beneficiary when the note got transferred? I don’t know, but maybe not if all the parties to an agreement re those note transfers agreed otherwise (but isn’t this in conflict with the PSA’s which called for assignments ‘in recordable form’, meaning they had to be done but not necessarily recorded?) It begs other questions, too. Like is MERS,
    a no-asset, no-employee software program a suitable ‘party’ to be named a beneficiary, even disregarding any original bifurcation after they all decided to shine having the lender named the ben and then assigning to mers (implentation of ‘mom’s’). Clearly I think the whole
    thing is one stinking, rotten to the core scam. They may have stopped
    f/c’s in MERS’ name post Consent-Order, but the ability of others to act at will in MERS’ name doesn’t seem to have changed one iota.
    MERSCorp and MERS are still liable for all that robo-signing done in its name and yet??? Not only have they not felt any consequence, the newly ‘trained’ servicer employees are still assigning to whomever they want, currently the trusts, far as i can tell.
    Prior to the Consent Order, their reliance in executing a “mers” assignment was on alleged poss of a bearer note (negotiation v transfer). Under what (default) law is one in poss of a note entitled to an assignment of its collateral? When default law (which I’ve never seen – everyone got the idea from a court decision in Carpenter) says a coll instrument follows a note, it must surely be restricted to the sale of a note, not its mere possession. It’s possible all Merscorp’ members agreed the coll agreement could be transferred to one in poss by someone authorized otherwise to do so, but we’ve never seen such an agreement or authority.

  40. hey rock, got call today from potus, hahahahah, but really, she said she was from the office of the ocwen presidents office, the potus. i started laughing. so i told her to have him call me as soon as he can, if he wants to talk to me. hahahahah

    what a joke ocwen is, will be bk in a month. i thought for moment it was the real potus. barrock himself.

    trying to get info from me, on what am doing. said to her have him call me himself. .

  41. No NPV, Garfield claims to be a “Wall Street insider” and he doesn’t know squat. So, telling me you worked on Wall Street doesn’t impress me whatsoever. You’re right, I don’t know everything, but I do know the law.

    A “win,” plain and simple is financial compensation, a workout, and/or free title. You don’t think a homeowner who gets unceremoniously thrown out of their home, either today, or after “a three year delay” feels like a winner do you, that’s utter nonsense.

    Post your so-called wins.

  42. NPV,

    The problem is not that wars can or cannot be won. The problem is that no one here appears to have won even… ONE battle! Most can’t even get past discovery. Those who do plead the wrong issues and piss off the court by producing completely irrelevant 45-page recitation of SEC records and arguing poorly articulated theories they picked up here, without understanding that Garfield is making out like a bandit selling BS, he hasn’t lost anything and… he does not argue in court.

    But, like in every cult, the brainwashed members will claw at everyone who points that out.

  43. iwantmynpv, I have friend who worked on Wall Street in a bank that sold the rotten MBS. He is not working there anymore. Could not take it anymore. In any event, if you are so inclined, please post the short names of the cases won my homeowner/borrowers. We would all like to see. If not, I understand.

  44. rock the great powerful , OZ hiding behind the curtain. come on speak my friend.

  45. Rock, I worked in banking on Wall Street for many years. You don’t know everything and if you send me an e-mail address I will send you the cases.

    Now whether they refile and try to correct the defects is a different story, but a dismissal or plaintiff withdrawal is a win. You may say it is a delay, but a three year delay is also a win.

    If I can win three battles over nine years, and in year 10 I lose the war. I take the monies I saved – and i buy a new country, and let the banks keep this one…

  46. so rock, what about my 3,4 notes out there. or more. who has the real one??? mine is from closing attorneys files, dated the same day as closing. so who has the real one???

    so what would a judge to do about that???oh messenger.

  47. NPV, you can’t show where a bunch homeowners have won their foreclosure cases based on evidence rulings. Why? Because they don’t exist.

    We see every foreclosure case as they come down minute by minute, there are no wins; there are stalls, but no wins!

    BTW, your last paragraph doesn’t make logical sense. First, you don’t need an indorsement to transfer a note; and second, why can’t a PETE transfer a note after you sent a QWR anyway.

  48. sent out 2 QWR, and both has different stuff come in on both. one note had nothing , and one note was blank stamp. with in a month of each other.

    but they dont know i have the only true original copy of my mortgage note. note signed. and a copy of that same note signed to the real lender of money the day of closing. and the bank that it is sign over without recourse is same bank that is on the . bank wire transfer. paperwork.

    so your honor, can you tell us , please what one is the real note????

  49. Rock, i can show you a bunch in judicial states. Winning or losing based on fabricated documents is not premised on the documents themselves, it is more aligned with the Judge pulled on rotation and his/her particular views on foreclosure.

    I disagree that this idea is something new that will win tons of cases for homeowners. the banks have long fixed that problem – “I have the note endorsed in blank, and an affidavit from the loan service agent, and that is all we need Judge”

    If folks would have worked a little harder and at least sent a QWR to the lender – they may very well of have received a copy of the promissory note before it was stamped with the courtesy indorsement.

  50. Long Live Neil Garfield and May G-d give him strength to fight the forces that are trying to take our Human Dignity and Due Diligence.


  51. Fraudulent documents throughout. Strangers to the transaction taking someone;s home.

  52. What’s “untrustworthy is Garfield and Living Lies.

    Once again, this post is more evidence Garfield doesn’t understand basic evidence law.

    First, pursuant to Rule 902(9) Commercial Paper and Related Documents are self authenticating.

    Second, he has no clue what a “negotiable instrument” is.

    Third, the article Garfield cited, by known pretender defender Weidner, the homeowner lost.

    Fourth, Garfield’s statement: “the records are inherently untrustworthy which is what has been found on thousands of cases where the bank lost and the homeowner won.”

    There have not been “thousands of cases where the bank lost and the homeowner won.” Show us just one.

    This is just another example of false legal advice (Kool-Aid) for the brainless to drink.

  53. The Judges are using the courts as their own ATM.


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