Another Sham: The Sudden Rise of Powers of Attorney in Foreclosure Cases

The entire foreclosure mess has been predicated upon one huge false premise — that by fabricating reams of paper, each one tied to the other or apparently tied to others, rights are suddenly created where none existed. This has never been the law but it suddenly has become the underpinning of most decisions in favor of banks and servicers who are strangers to the transactions upon which they are making claims.

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Just want to point out that the reason why they are using a Power of Attorney (POA) instead of a servicing agreement is that the servicing rights are retained by the Master Servicer and sometimes even the subservicer. While the POA might appear to grant full authority it is missing the servicing functions including accounting for borrower payments and payments to the “investor(s)”. Especially when you add the element of entries made at or near the time of the transaction. This is another reason why homeowners who are alleged borrowers should be able to look at those transactions and see if the “business record” is correct. Once again we come back to discovery as the essential time to bring this up.

All of this makes it impossible for the latest entity to legally receive an application for modification. When you scratch the surface and actually ask the question the answer is always the same — that the “corporate representative” of the latest entity in the game of musical chairs can neither offer nor accept any modification and in fact is there purely for the purpose of getting the foreclosure judgment and forced sale of the property — an event that puts a judges order and a court clerk’s certificate on top what is in actuality a pile of empty, worthless paper.
The inability and/or unwillingness of the Plaintiff or its newest “attorney in fact” to show the actual money trail and actual deposits and disbursements, is a key factor in showing that other documents upon which the  banks and servicing are relying (using legal presumptions to fake their way through the process) are now suspect and thus not deserving of the application of the legal presumptions that ordinarily would apply to facially valid or recorded documents.
Remember the newest entity supplying records is NOT the Plaintiff. Judges tend to treat them as though they w ere the Plaintiff. This element of distraction by the lawyers for the banks and servicers has served them well. The Judge treats the newest entity as the Plaintiff when in fact they are not alleged to be holder, owner or have any interest or authority at all. And for good measure let’s not forget that the newest entity has no authority and possesses no “business records” (as an exception tot he hearsay rules of evidence) if it claims authority from an entity that has no power to give such authority. The entire foreclosure mess has been predicated upon one huge false premise — that by fabricating reams of paper, each one tied to the other or apparently tied to others, rights are suddenly created where none existed. This has never been the law but it suddenly has become the underpinning of most decisions in favor of banks and servicers who are strangers to the transactions upon which they are making claims.
The bottom line is that the party charged with enforcement is not a servicer but rather an enforcer. As an enforcer and since they do not have all the rights, obligations etc of a Master Servicer or subservicer, can their business records still be admissible? If they are only the enforcer and they are relying upon their stringent audit of the business records, that sounds more like a fact witness or even an expert witness than a party who has actual authority to service the loan.

The issue becomes split. The new entity that is not a servicer and therefore not charged with servicing duties, should not be able to claim that it has authority to bring the action in the name of another entity. The servicer clearly could but the attorney in fact is really a material witness whose sole function is to testify about the business records. The assumption is made that as the successor to prior alleged servicers, they can claim a chain of custody. But a company that in actuality is there for e the sole purpose of getting “business” records” into evidence is a fact witness who deserves no more presumptive credibility than any other witness.

The “servicer” claim by way of a POA is therefore a sham.

18 Responses

  1. Reblogged this on California Freelance Paralegal.

  2. Hi. Our last mod. was in 2011. That is the one with what I think is robosigning. 1 part, a notice of no oral agreements, is typed on top of page date 2/1/2011, but we signed all docs.incl. that one on 1/1/2011, and it looks part with our signatures was copied onto it, because signatures of ours are lighter than their signature. And, how could we sign something a month before it was typed? There is the notice to lift automatic stay, and last mod. addendums, etc. that are signed by people claiming to be VP loan doc. that I learned by calling ASC’s executve office and asking about them, found out they do not have that job title, or any executive position. Same day the home preservationist called and told me if I have questions to ask him. Guess they didn’t like me calling exec. office and finding it out.We had filed several mod apps. before and during bankruptcy. They were denied, saying because we had 3 mods. and that is investor limit. But, one letter they sent admitted the investor does not have a liimit on number of mods. We have lawyer for bankruptcy, as far as I know no adversial challlenge was done. I know he never asked about chain of title, in fact I had asked him to do so, he said he is sure bank would not screw up, or something to that effect. He and judge said wells fargo does not usually make mistakes like this. If he still refuses to do it, can I file an adversial challenge myself? We are behind in payments in large part because of ASC. If I can file adversial challenge, is that filed in court, otherwise is it sent to servicer or whom? Would the vault custodian be deutsche bank, I believe they seem to be only entity who states itself to be custodian. Otherwise, couldn’t all this stuff be put in a qualified writtem request? Or is adversial challenge better. I guess I could state that I had asked atty. about looking into chain of title years ago, and he did not want to. It is a MEERS loan, at least their name is on it. But I tried calling them, can’t get through to live person. I tried internet, just am able to get servicer name, not lender. I will speak to my atty about it. Thanks for advice. Pat

  3. @Pat P – Get good at presenting concise facts. States have different laws regarding notice when servicers change. Has there been an assignment within the past year that didn’t have a corresponding TILA notice of change of lender? Is it a MERS loan? Has a modification application been submitted by you? If so, what was result? Was the subject loan listed in the BK schedules? I’m guessing yes because you stated the judge wanted you to get a mod within 90 days. Unfortunately it means the judge is compromising your position that you don’t know if you owe any party because it’s possible it was paid off already by parties unknown. Submitting a mod gives the court reason to accept as fact you think you owe more payments on the loan to the party requesting the payment, particularly if you submitted a mod application before the BK.

    As for tactics, did you attempt a adversarial challenge to the loan in BK? If not, it may preclude you from filing another action regarding the chain of title after BK. Your challenge should include a request for all documents that memorialize changes in lender interest found in the general ledgers, accts payable, and accts receivable of any purchase or sale of the loan. Also request any and all documents depicting any transfer of possession of the note by bailment or physical transfer from the vault custodian(s).

    Strive to look at the worst case scenario the facts allow, e.g. the judge ordered you to submit a mod and thereby acknowledge the debt if you didn’t submit one earlier. If you can’t find fact and argument to overcome this, save your money for a move when the BK ends. Hopefully you have some equity in the home and a sale may be possible that will leave you moving expenses.

    IANAL, and you would be a damned fool to act upon any of the items stated above without advice of a licensed attorney. But unless you discuss adversarial challenge with BK atty, you’re being set up to lose your home by members of the state bar of the state where the property is located.

  4. Pat,

    Because words can appear harsh based on what you are going through, let me preface this with, I communicate in terse terms learned from dealing with these businesses where their motto is,

    It’s not personal, it’s business.

    In that sense, it’s a get to the point kind of world with no hand holding and no khumba ya.

    So I will type humbly with no disrespect, and hope you do not detect anything other than words and information without thinking it’s demeaning or belittling or ridicule…it’s just info, words, no emotions behind it…just info being convyed.
    Here goes:
    First decide whether you think you owe the debt, that determines how you will react to this situation.

    If you think you owe it, then pay it, there is no need to waste time trying to stop someone from taking what you think belongs to them because you failed to pay for it, if you think you owe them.

    That seems harsh, maybe, but this is not the time to flip flop about what you know, or think you know.

    QWR has started a foreclosure on some people, and if the people being foreclosed on, believe they owe and the servicer is being unreasonable, that is not what a judge in court will care about. Court is cut and dry. Do you owe them, did you pay them, how long did you not pay them, judgment for the one who didn’t get paid what was owed to them. Gavel on wood, and you are looking for a place to stay and how to move.

    If you do not owe them, and it has to be in your heart whether they are the creditor, whether the transaction is paid in full, whether they will not give a modification because they never loaned any money and are not due any payments so there is nothing to modify, but they have an interest in taking your home and making it their property, if you know these things, then you use what is available to you, including the CFPB and asking them to validate the debt with a debt validation letter, and validation is not a screen print from some database showing what a balance was, and what payment was received and the balance going down.

    Having a month is not much time to figure things out, if you had six months to get a plan, but we all start somewhere.

    there is a blogtalk wliyd, just search those two words, and if you listen there and decide to join them, you can probably get a footing on what you are dealing with. One of the things they tell their listeners is to take their Deed of Trust and write it down word for word and get the definitions of the words and see what you were actually told in writing when you signed that document.

    There are other things to consider, if you are in a modification and a recent one, the banks/servicer/lenders/or whatever they want to call them selves, have gotten their paperwork issues in better order, and may or may not have situations that you can overcome.

    If they have filed a Notice of Default into the public record, or if there is an assignment of the mortgage, or any number of things can be factored in to your benefit or detriment.

    As most of us here are already robbed, or still fighting, or still learning, and still providing information we have discovered, there is no one way to do anything and what worked for someone may not work for another.

    As a man on the radio would say, “That bell has already been rung.”
    You can’t un-ring it, and you can’t ring it for the first time ever again.

    My message is cryptic, but the two word search is a start, and after you decide where you lie in your claim, owe or don’t owe, you can do the debt validation letter, and lodge a complaint with the CFPB, stating what happened and that is under penalty of perjury.

    Some people want to keep their home, but think they owe, and their mind is divided, split, and no one can be of two minds, so as they deny owing the business that wants their home, they make statements or claims as if they are in dispute as to the amount owed to that business that stole their home, and a court business has employees trained to see and hear the divided mind and the mind would not be divided if the thought or claim is certain.

    Trespass Unwanted, Creator, Corporeal, Life, Free, Independent, State, People, In Jure Proprio, Jure Divino

  5. Hi. As our atty. is only representing us for bankruptcy, we have to go pro se to fight the foreclosure fraud We did stop the foreclosure by filing bankruptcy, but are now on a 6 month doomsday,which will be up next month. So for right now we are not in foreclosure, but I think if stay is lifted anyway they will foreclose. They refuse to give us a mod., even though judge said she wants us to get one in 90 days, in court in October.I want to file a QWR. Am in Wisconsin. Do I have a right to ask them for not only proof of who actual lender is, but also money trail, deposits and disbursements of my payments, as well as which job titles their so called “VP loan documentation” employees have? As I am looking at our papers, I am finding we have had servicers I didn’t even know existed. Is that a fraud issue, if we weren’t notified? And I see on Deutsche bank papers they are custodian. What does that mean? We had never heard of them either, but a few months ago we got papers in the mail from them, which list various things, 1 for note, 1 for mortgage, Deutsche spelled 2 different ways on each paper, a line of 5 same numbers, different sequence, accompanied by blank and near blank sheets of paper, with unreadable writing on them. Anyone know what this means? is it OK to send a QWR if we aren’t being foreclosed? Does the QWR only need to go to servicer? thanks, Pat

  6. Thank you for the clarification. It is much appreciated. I am sorry I got offended but it seemed more like you were mocking me because of the candy reference/comparison. No harm done.

  7. I never stated you stated a robot did anything.
    I stated that a robot did not do anything to emphasize that people are doing it.
    Yes I read it and I’ve been through as much and meant no harm, but if you could read past the emotions you created from my post, you may find it is helpful to you in what you are doing.

    There is always the option to be offended and ignore, it is your right to experience things as you experience them from your point of view.

    It may be different to view things from a different perspective.
    If it offends, you can ignore.
    That is not the intent of the post.
    Someone will comprehend the depth of the message and it will help them.

    If I could edit, I would remove your name in the response and keep it general.

    Trespass Unwanted, Creator, Corporeal, Life, Free, Independent, State, People, In Jure Proprio, Jure Divino

  8. I am sorry but I believe you completely misunderstood my post. Did you actually understand anything I wrote? My comment has to do directly with this article. In addition, I never mentioned a robot signing anything in my comment. Your comment is actually quite offensive. You have no idea what I’ve been through and the corruption I have had to endure fighting these criminals.

  9. On second thought, if I could edit, I would remove the fictional story and just provided the link and let you go read the fiction instead of posting it.

    It is not my work, and was only used to make a point for educational purposes.

    Giving credit to the source:

    Trespass Unwanted, Creator, Corporeal, Life, Free, Independent, State, People, In Jure Proprio, Jure Divino

  10. Isabel,
    It would be nice if there were some real names behind all you state is being done. I doubt Carrington business and B of A business , and Marinosci Law Group business; as the brick and mortar buildings; has done any of the things you wrote above, but I bet you have some signed documents of the people who go to those businesses to work and during the day, they are using the life given to them to sign their names on these documents in the course of their acting as employees, and, lawyers and such. I am certain there is no robot technology involved in these papers, so it’s real people and you don’t see them, you see the company they work for and talk about the company as if it did it.

    If it were a car accident, I doubt you’d mention the year, make, model of the car as the thing that hit you, you’d sure mention the male or female driver and want to know their name when you file your insurance claim.

    The whole point of this article is about the ‘people’ who have made the papers, and the ‘people’ who have created the Power of Attorney, and it seems to have gotten past you, and you are discussing the things that can’t move, think, speak, eat, nor sleep, so how can those things create papers unless someone living did it, and put the thing’s name on the created paper.

    Your description was colorful but it reminded me of the following tale,

    One payday, Mr. Goodbar wanted a Bit o’ Honey. So he took Miss Hershey behind the Powerhouse on the corner of Clark and Fifth Avenue. He began to feel her Mounds. That was pure Almond Joy. It made her Tootsie Roll. He let out a Snicker as his Butterfinger went up her K[i]t K[a]t and caused a Milky Way. She screamed “Oh Henry” as she squeezed his Peter Paul and Zagnuts. Miss Hershey said, “You are even better than the Three Muskateers.”

    Soon she was a bit Chunky and nine months later, Miss Hershey had a Baby Ruth.

    Needless to say, we know none of those fictions did a thing, only real people can do the things you mentioned, and that’s what makes them get away with it, because our descriptions in lawsuits are at the corporate body level and does not describe the corporeal body, the people, that work there and our papers do not give their names and identify what they do, as we witness what they do.

    In their suit, they mention you and anyone that signed with you, by name.

    Imagine that.

    Trespass Unwanted, Creator, Corporeal, Life, Free, Independent, State, People, In Jure Proprio, Jure Divino

  11. coltonm001

    May I suggest you call or email because the blog may not get the attention of the business requests, timely; plus, in my opinion, it may be that no one in the office will to ask you for identifying information in this blog posting, to figure out the past communications.

    Hope that helps; as you delve deeper into the appearance of the legal process world of the court business.

    Trespass Unwanted, Creator, Corporeal, Life, Free, Independent, State, People, In Jure Proprio, Jure Divino

  12. Aloha, This is Mary Colton from Kona Hawaii. I have contacted your office in the past. I am a pro se litigant fighting foreclosure fraud that began in 2007 with Countrywide. I have lost my prior communications to your firm regarding a very kind person that had responded to my questions and helped me. I was seeking a NY licensed attorney to file suit in NY for me approximately 4-5 months ago. I have crashed several computers 🙁 I am at a threshold with my lawsuit, awaiting a decision from the Intermediate Court of Appeals. Im feeling how crucial this next decision I make will be. I would like to schedule a time for answers to some questions if possible. Hopefully with Neil or whomever you suggest I could have this time with. Also, if you could inform me about payment for this and let me know how I will be charged for such a service. I am thinking maybe a 30 min phone call would work (hopefully) if I have all my thoughts ready in advance. Thank You for all you do for those of us who champion this alone. I don’t think I would have made it this far without Neils contributions and Living Lies. Sincerely, Mary C. >

  13. I had the CA Appelles pull this stunt on my when they presented the ‘agency’ argument on behalf of defendants Fannie Mae and JP Morgan at oral arguments. Neither defendant supported the argument, in part because I pointed out that there was ANOTHER POA in evidence from a party not named in the suit. It was a summary judgment motion being appealed, and there were no documents alleged or presented that satisfied the STATUTE OF FRAUDS with respect to agency. In other words, discovery did not provide a document from the (alleged) beneficiary to the (alleged) citing the subject loan in question with the instruction to initiate non-judicial foreclosure based on an election to do so by the (alleged) beneficiary. Despite the multiple agents claiming similar powers, the POA alone should have been legally insufficient because there was no schedule of loans indicating it applied to the subject loan. And the CA Supremes saw no denial of due process from the Appelles.

    Nearly every lending institution has a POA from Fannie Mae, and many foreclosure mills have POAs from multiple lenders. So a notice of default signed ‘… as agent for the beneficiary’ does NOT meet the Statute of Frauds.

    IANAL (I am not a lawyer) and you would be a damned fool to apply the above argument without advice from a licensed member of the State Bar who live in economic terror from the members of the Bar sitting on the benches.

  14. isabella, your loan was spun out of portfolio loans from Merrill’s shit pile, meaning it what such garbage they couldn’t even securitize it. It was probably purchased from new Century mortgage’s REIT, and when New Century went away, so did the put-back option.

    Look for MLM on any of your documents.

  15. This is the very same thing I have been alleging throughout my foreclosure case filed against me in September 2015. I am being foreclosed on by Carrungton Mortgage (aka “debt collector” aka “sub-servicer”) who is the decoy for Bank of America. I counter sued and added Bank of America and the dirty lawfirm Marinosci Law Group (foreclosure mill) that allegedly represents Carrington (or so they say) to the counterclaim. Carrington already responded to my counterclaim long ago and then Bank of America removes my counterclaim to the corrupt federal court in Orlando where they always have success against me because the judges and clerks are on their payroll. Bank of America claims that my counterclaim is a “third party complaint” which it is not because Bank of America is the true party of interest (“Master Servicer”) and an indispensable party to the foreclosure. A power of attorney was filed along with the AOM from BofA to Carrington which clearly states that Carrington is an attorney in fact for Bank of America but are not allowed to use Bank of America’s (BANA) name in litigation but that once the property is up for auction, Carrington can bid in BANA’s name. Carrington insists that they are the owner, note holder, investor, servicer of my purported mortgage but they are not and that document proves it. Carrington did not attach the AOM or the Power of Attorney filed on my property records days before they filed foreclosure with the complaint on purpose so that it would not implicate Bank of America. They thought I would not notice. I filed a Motion for Proof of Authority to Represent against Carrington about a month ago and they have yet to respond. So far, it stalled the foreclosure in its tracks. I requested to see the retainer of who the foreclosure mill (Marinosci) actually represents. I am also fighting to remand the counterclaim back to state court where they do not want to fight me. The fraud against me and my family by Bank of America is on-going since 2010. Thank you Neil Garfield for confirming what I already knew months ago and for making this new sham and fraud upon the court known to all!

  16. What can be done about the Documents that are on file with the County Recorders Office with the “Attorney in Fact”. What recourse do we have in regards to getting them rescind or expunge? I have already encountered the “CR Clerk” saying we get those all the time, they are fine because they have a Power of Attorney on file. Do we ask to see this POA? Do we have that right at least?

  17. Yale Law journal-‘In defense of “Free Houses”.’
    A must read!

  18. The Judges want a free home. Our home
    This great article assumes the judges aren’t benefitting financially from there ad hoc BUll Shit kindergarten excuses. They only care about themselvelves just like Bernie Madhoff.

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