Where’s the Beef? Hell if the Banks know.


To listen to the West Coast Foreclosure Show:


Note: For those readers too young to remember, in 1984, the Wendy’s corporation launched an epic ad campaign called, “Where’s the Beef?” It was aimed at McDonald’s and insinuated that the hamburgers at McDonald’s skimped on the beef.  This campaign was launched at the same time McDonald’s was accused of using earthworm as meat filler.  The campaign was a huge success and began Wendy’s expansion.

By J. Guggenheim

Investigator Bill Paatalo joined attorney Charles Marshall on the West Coast Foreclosure show to discuss why the major banks are unable to provide a bank witness in litigation who has knowledge of the loan.  Bank witnesses are unable to provide information regarding the note location, who the creditor is, what the bank paid for the loan, or if the loan was transferred in compliance with the Trust’s Pooling and Servicing agreement.  When deposed, the witness says repeatedly, “I don’t know”, and when they are asked who can provide this information- they say, “I don’t know.”  Where’s the beef?

In loans that were originated between 2000 and 2009 (and often afterwards), the notes were deliberately destroyed upon securitization and the original loan files disappeared. The only way for a bank, servicer, or trust to demonstrate ownership now- is to create (forged) notes and assignments out of thin air via a desktop publishing platform.  This is typically done by a third-party like Black Knight (LPS) to create distance and plausible deniability.

The bank witness, during a deposition or in a sworn affidavit, will base their ‘expertise’ and knowledge on the fabricated note and information shown on a computer screen.  The bank witness will have no personal knowledge of prior loan transfers or sales, or the boarding process, but have been coached by bank counsel on how to be evasive when asked, “Where’s the beef?”  The bank doesn’t want the witness to leak information that might assist homeowners, so the witness will parrot, “I don’t know” repeatedly.

At this point, an aggressive litigator will go for the jugular, but too often, the homeowner’s attorney “let’s their foot off the accelerator, ” and doesn’t press the issue, according to Bill Paatalo.  Aggressive motions and objections must be used to expose that the witness is lying, being evasive or coy, and has no personal knowledge outside of looking at a computer screen.  Paatalo has observed that bank witnesses routinely provide inconsistent testimony, lack training on bank systems and procedures when pressed, and have little credibility.   Therefore, they should not be entitled to any presumptions of truth when their statements are ambiguous and it is apparent they know nothing.

Attorney Charles Marshall states that it is a travesty that the courts allow this to go on, and a homeowner should be allowed to prevail when the bank cannot provide a credible witness or reliable evidence that it owns a loan.  Marshall suggests that homeowners and their counsel hone in on discovery and break out the rules of evidence.  Through a declaration, on the record, it becomes obvious the bank doesn’t have admissible evidence.  Marshall recommends framing the key issues and then filing a Motion to Dismiss to knock out the declaration.

Once the homeowner has evidence the bank witness lacked knowledge, they should file an affidavit, on the record, that the bank was unable to comply with the rules of evidence, and that there is no proof the bank owns the loan. A motion for summary judgment should be filed, but only if you have hard evidence, otherwise the other side will likely prevail.   Institutions routinely file Motions for Summary Judgment after discovery and depositions are taken- and it is useful to beat them to the punch.

Paatalo says the reality is that the opposition is relying on a bank witness with no personal knowledge, who looks at a computer screen, and then states the bank has standing- despite lacking evidence.  He points out that a Texas task force (transcript here) was created in 2007 to make suggestions how to handle the document deficiencies seen in foreclosure.  A retired judge on the panel stated on the record something like, “If there are no witnesses with evidence, what will we do?”  The task force surmised that the foreclosure mills could handle the foreclosures even though they had no way to track ownership, but relaxed believing that most people would assume their loan servicer was the lender, and not ask questions.

Michael Barrett (now deceased), of the Texas foreclosure-mill Barrett-Burke, Castle, Daffin & Frappier, admitted that the mandated paperwork required to lawfully execute a foreclosure does not exist in 90% of the cases:

“So finding a document that says, “I am the owner and holder, and I thereby grant to the servicer the right to foreclose in my name” is an impossibility in 90 percent of the cases.” (transcript page 27, line 16).

Mr. Barrett confirmed “There really isn’t such a document” (Page 27, line 8), and it was revealed by Judge Bruce Priddy (See State of Texas v. Judge Priddy D-1-GV-08-002311) when he stated on the record:
“They just create one for the most part sometimes, and the servicer signs it themselves saying that it’s been transferred to whatever entity they name as applicant”. (page 28, line 10)

First American Title added:
“The other problem that I see — and, Tommy (Redding), you and I talk about it regularly – that we have a bunch of servicers that are corporations or trusts attempting to foreclose on behalf of other trusts using a power of attorney, and I don’t think that’s really proper. I mean, we all kind of turn a blind eye to it, but I think that’s an issue that’s out there that somebody could use to potentially attack a foreclosure” (p. 33, line 5).

Even back in 2007, the foreclosure mills and judges knew they had a problem.  The only solution possible is for the judiciary to play blind, make erroneous presumptions that fly in the face of the evidence, and stonewall the homeowner.  Bank regulators, the FBI and state Attorney Generals were told foreclosure fraud was not a priority.

Paatalo compares what the courts are doing now to a scene in the movie, Shawshank Redemption, where protagonist Andy Defresne speaks about how to get away with fraud:

Red: Andy, you can’t just make a person up.
Andy Dufresne: Well sure you can, if you know how the system works, where the cracks are. It’s amazing what you can accomplish by mail. Mr. Stevens has a birth certificate, a driver’s license, social security number.
Red: You’re shitting me?
Andy Dufresne: If they ever trace any of those accounts, they’re gonna wind up chasing a figment of my imagination.
Red: Well, I’ll be damned. Did I say you were good? Shit, you’re a Rembrandt!
Andy Dufresne: You know, the funny thing is, on the outside, I was an honest man, straight as an arrow. I had to come to prison to be a crook.
[Red laughs]

The banks, courts, law enforcement and the foreclosure mills know where the cracks are, and the homeowner is at a disadvantage trying to find them.  It is common knowledge that the securitized mortgage loans are a figment of the industry’s imagination.  The homeowner, through targeted litigation and discovery, must find the bank’s lies and bring them to the court’s attention.  It is a tall-order and the bank is betting your attorney will not force the issue, allow deceptive depositions to stand, and fail to compel discovery.  That has been the bank’s strategy to date and it has been effective.

Bill Paatalo points out that the banks and servicers have revised their gameplan and are now creating new-fangled trusts and resecuritizations, while defective loans are being sold in bulk to debt buyers.  By repackaging and transferring what doesn’t even exist, another level of fraud and deception is created.  In fact, according to Paatalo, “Investors are buying nothing but revenue streams, insurance proceeds and servicing advances- not loans.” This convoluted scheme is based on illusion and nothing more.

Paatalo proves his point by bringing up a recent US Bank interrogatory (USBank ROG Response – NV – cannot acsertain amout paid for loan), where the court ordered the bank to reveal how much they paid for an individual loan. The bank witness claimed that US Bank could not ascertain how much it paid for the individual loan because they purchased the loans in bulk.  The next question would be:  if the bank purchased the loans in bulk, did they obtain the note, loan history, and prior transfer history?  Of course not- there is no proof of individual loan ownership.  If US Bank is a depositor, why was the note never endorsed?  Inquiring minds want to know.

Paatalo says the banks have created a ‘fact pattern’ justified by information on a computer screen.  All major lenders signed a consent judgment with all 50 state Attorney Generals that stipulated that all verifiers of mortgage information must be trained, and the training documentation should be placed in their employee files.  This is not being done.  The bank witnesses repeatedly claim ignorance, while the judge allows them to evade answering any question that would assist the homeowner in proving their case.

If a homeowner is to prevail they must focus on the hearsay rule and conduct an evidentiary proceeding to get the facts on the record, and preserve the record for an appeal.    It is the homeowner’s job to raise the issues! Ask questions like: when did they take control of the file, where is the note, how much they paid, who the holder in due course is, and demand to see the foreclosure mill’s retainer agreement with the lender.

Paatalo and Marshall confer that corporations must have corporate counsel, but often there is no connection between the law firm and trust, and instead third parties are behind the scenes pulling strings.  The bank witness should be pressed to disclose who these parties are and demand evidence of representation authorization.  In Paatalo’s own case, he challenged the bank to bring in its own witness/expert, and state on the record that what he was stating was not true.  To date, the bank has not taken him up on his offer- because they know what he says is true, and they can’t refute it.

Banks are not compelled to provide an evidentiary trail, or to  provide complete and accurate information.  Instead, they rely on a ten-minute cursory legal proceeding to establish standing.  The bank relies on a sham entity that doesn’t hold anything and relies on this ruse to illegally foreclose on homes.  The arrogance of the big banks is reinforced by the lack of regulatory enforcement, sanctions or fines.  Lenders and their attorneys are allowed to lie, cheat and steal with impunity, but a good attorney can stop them in their tracks.





21 Responses

  1. Sounds like u have the mythical counterfeit note!

  2. This homeowner was treated as if she wasn’t even in the courtroom! But then we had the semi victory in NJ so who knows what could happen at this point.

  3. I’ve got Discovery pending at this point. Still haven’t heard anything back. Coming up on 20 days. Can’t wait to see what they don’t have to say. I presented two trusts to the judge that both claim to own my note and neither of them have anything to do with HSBC. I expect only a corrupt ruling from the judge but maybe he will surprise us.

  4. This feels like victory when u have judges that treat u like dirt and force u to accept black is white!

  5. @Joe ur paying the fake servicer to keep the illusion going. Govt will say keep paying putting us in catch 22. Real financial education would teach consumers to dispute and put funds aside to pay rightful creditor in good faith. It’s all in the code. No way lawyers, politicians, courts should have allowed this financial terrorism.

  6. @KG Yeah pretty twisted but is fun to expose these bastards. May in the end just be about getting the truth out. NJ case I’m helping on could be RE securitization fail! But need to stay away from theory stick to basics and common sense. Show they can’t be “errors”. 2 accounts same “debt”, note does not compute and judges, courts are ignoring the facts.

  7. @ UKG

    Roger that…

  8. Should the United States Government be held accountable for letting these fake servicers commit this fraud.

  9. Why am i paying a fake servicer ?

  10. and Hammer, remand to the trial court is only a victory until the Court finds another way to rule against the homeowner.

  11. thanks, Kalifornia. that’s it. I get New Jersey Law Journal emails (not sure why, I live in Wisconsin…) and enjoy reading these farcical opinions. How about the FL court deciding every missed payment constitutes a new event of default? No statute of limitations, EVER! The corrupt system is burying us all.
    BTW, I’m glad to see some of you oldsters still hanging out here. I guess I’m one of the lucky ones, still in the house, still in the battle. We’ve come a long way since August of 08, huh? Now, don’t get me wrong…three BK’s, two foreclosures, two HAMPS, a failed fraud suit, not all that much fun. But now, looking back, yeah, now it’s FUN. These criminals will pay, one way or another. God does not look kindly on those who destroy the lives of fellow human beings for their own self enrichment.
    Keep the faith, folks!

  12. Hammer, I tried to post the whole article and it was too long. There were two other cases (all NJ) wherein homeowners were dismissed claiming faulty securitization and chain of title issues related to the PSA. The faulty REMIC defense is also poo-pood. The courts are going waaayyyyy out of their way to defend and protect the banks and their law firms. Not sure where my judge will take us; in discovery right now showing them TWO mortgage loan accounts created against my ONE note. Yes, multiple placements of the note, unrecorded mortgage to enable it, and letters generated automatically.

  13. UKG there was a living lies post on that case re MERS I think. Do u mean it’s blocked since its STILL in court trap? Instead of clear victory for homeowner

  14. must have been too long……

  15. You can’t GET to an evidentiary hearing in this circuit. Blocked at every turn.
    By the way, I tried to post a case that actually was remanded in New Jersey, homeowner prevailed, and it’s blocked.
    15-2-4472 The Bank of New York Mellon v. Davis, N.J. Super. App. Div. (per curiam)
    On appeal, the court reversed concluding respondent failed to establish, as a matter of law, that it acquired ownership or control of the note to maintain the foreclosure action. Most notably, respondent failed to produce a power of attorney document evidencing its legal relationship to the predecessor-lender. Moreover, the provided certification failed to identify the note’s physical location or state details concerning the note’s physical delivery. Finally, the court noted respondent lacked proper authentication of the documents it relied upon to establish its status as a holder. Because respondent did not establish its standing to pursue the foreclosure action by competent evidence, the court vacated summary judgment to respondent and remanded the case to the trial court.

  16. There seems to be a disconnect where the National Mortgage Settlement and Homeowner Bill of Rights require chain of documents, reliable evidence, And personal knowledge, chain of title etc. The fraud now includes government at every level and in every state if they keep devising rules to allow banks to steal our homes under the color of law. This is all UNCONSTITUTIONAL.

  17. How come Paatalo lost his case if anything he promotes actually worked?

  18. Reblogged this on Deadly Clear.

  19. I know that LPS is a huge topic of conversation at the moment, but is there anymore info regarding Security Connections? I am also wondering if anyone is dealing with a company called Coast-to-Coast (Coast2Coast)… I believe they are a third party vendor that Ocwen uses to try to reel in outliers like me by “enticing” us with 2% “modifications” (modification of what? Paid to whom? And why? I want to say). They are pretty persistent… admit that they work exclusively with Ocwen, but when pressed, deny that they work FOR Ocwen.
    Any experiences you can share would be great. Thanks.

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