BIAS AGAINST HOMEOWNERS — Why Homeowners Don’t Get Respect


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Tonight Charles Marshall is on to discuss one of his favorite if unpleasant topics: Institutional Bias in the foreclosure arena directed at Homeowners. There are many layers and associated pieces to this situation, which I will discuss on the show:

– Institutional bias of the lenders, servicers, securitized trusts, sale’s trustees, etc;

– institutional bias of the alphabet soup Government agencies inclulding the CFPB, FTC, State and County Bar associations, etc;

– institutional bias of the courts and associated judges and clerks;

Finally, we will cover implications of these biases for the homeowner in foreclosure and what to do about it.


EDITOR’S NOTE: This is why I have suggested that a judge be subject to voir dire before trial begins. As the trier of fact they are in essence a juror. If the triers of fact assume that banks know what they are doing and wouldn’t lie they are then, by definition, assuming that the homeowner must be lying.

The entire problem is judicial assumptions and presumptions that come not from law but bias.

The question is whether they are aware of the fact that in settlements worth more than 1/2 Trillion dollars the banks have admitted at the very least that they “might” have fabricated, forged, robosigned documents that mislead the courts and the homeowners.  They have also admitted that they have screwed up the modification process, so settlement in most cases is out of the question. In a litigation world in which 85% of all cases are settled why is the percentage of foreclosure settlements in single digits?

My first question to Charles is why would a judge apply presumptions that are fundamentally based on credibility when the party seeking to enjoy the relief of presumptions has demonstrated a decades long track record of lying?

21 Responses

  1. @ Poppy – Are you in California? If so, I can refer you someone. Not me, but someone who knows the law and who knows how to litigate.

  2. @Poppy “Evidence of a debt, is not an indication of whom it is payable to. I am not arguing a debt is not out there” Yes, that is one of the points of Yvanova, and one of the points I argued in my related case of Hernandez v. PNMAC which prevailed at the Cal Supreme Court and 2nd District levels.

    However, void assignment/ Yvanova cases have been greatly limited by caselaw since then in my jurisdiction (CA, which is the only one I purport to know about). That caselaw has been a moving target but since the initial Yvanova Supreme Court decision has moved steadily away from the viability of void assignment theories.

    At present those cases are actually dangerous to the litigants and their lawyers in terms of sanctions exposure. This is especially true if the case is in Federal court where Rule 11 sanctions are always being threatened and/or attempted.

    You are correct these instruments weren’t supposed to be bearer instruments – and that is a very good way to put it. The problem is that the statutory schemes which created nonjudicial foreclosures, and the caselaw developed around them, developed before securitization existed and it hasn’t really adapted to the change.

    So you have some very strong caselaw, which says in essence that the borrower doesn’t get to assert claims relating to bad endorsements, bad notarizations, late assignments, etc.

    To address it there needs to be legislative reform of the laws surrounding foreclosures. That is the only way this gets addressed. The cases are at this point almost unwinnable. I asked a group of mortgage lawyers if anyone had ever won a trial court case involving void assignments. The response I got was crickets.

    Anyway, good luck to you and your case. I am not writing this stuff looking for work. I have work. I no longer take these kinds of cases, as the facts, the law, and often the people involved make them unworkable and unprofitable. But there are plenty of honest lawyers out there if you are willing to make a fair deal with them and if you really have a case. Again good luck.

  3. @ Poppy

    GO GIRL!!!!

  4. @ David: Evidence of a debt, is not an indication of whom it is payable to. I am not arguing a debt is not out there…I am saying these cats are lying to the court, they are the servicers, who are stealing the money, from the “investors” they are claiming to protect. Not one red cent is going to the trust, because the note is not in the trust. In my case, my payments were not made from day one…A New Century deal. The REMIC is supposed to be, bankruptcy remote and assignments were made by the servicer, as attorney in fact in 2012 and 2015, from New Century, while in bankruptcy, DAH? The servicers website, the loan is an REO, with the servicer as the first lien holder. An affidavit….attesting to the date of the loan in 2000, seven years before origination. And they come before the court, begging for relief…whatever. And this is just a small part of the garbage in and out of the court. “Debt’s are owed and payable to those entitled, by “PROPER” indorsements, transfers and/or assignments, not anyone generating counterfeit paperwork. The REMIC Trust is not holding “bearer instruments”, which is what they are claiming. Oh, and a claim and AP was pending in the Federal Court in Delaware from January 2012 AND a stay was issued, Judge Fox, complaint from 2011-order issued 2013, in NC Federal Court for anything related to New Century, until the close of the NC bankruptcy in August 2016. In that time frame, the servicer, Ocwen was moving assets of New Century. This is a problem…and I have had counsel over time, I had to ask him, who are you working for? This cat at a DeNovo hearing did not examine witnesses, bring in any defenses or enjoin the action, leaving me broke, with the only option of going it alone.

    So, if you know anyone who has the grit and knowledge, send them my way, because they all mislead us, blow up the money and it ends swiftly. I have everything one would need and can 100% prove a case!
    I need someone who stops lying about their ability and show me…the case is here…

  5. @ “Shilly” (David) Seal

    You’ve been asked to specify your “get” assertion; you did not.

    You’ve suggested that “…federal cases keep getting dismissed until one day – NO LEAVE TO AMEND.” However, even a first year law student knows that there is no such repetitious event as a serial dismissal of federal case(s); nor does a motion for leave to amend follow a case dismissal — as you profess.

    Nonetheless, simply because you hold #177054 you espouse your omniscience.

    Your client’s feedback on Yelp indicates otherwise.

    SO, again I ask:

    What is it that you purport to specifically “get” that everyone else, including your clients, fail to comprehend?

  6. @ “Shilly” (David) Seal

    “…not educated or proficient enough to get it.”

    “…to get…” …what…?

    (Be specific and precise. Otherwise, don’t bother.)

  7. @ Poppy – I’ve done real homework, and I’ve won and settled real, hard cases over foreclosures. And I am well aware of the theory you are speaking of. Here’s the thing: IT DOESN’T WORK. The fact that a loan is assigned, that the lender is paid when it is assigned, or that an insurance policy is paid, doesn’t do anything to the borrower’s obligation. So, if you argue that, you lose. Point blank and simple. Show me an example to the contrary. I know several who are trying it now. Their federal cases keep getting dismissed until one day – NO LEAVE TO AMEND. Wake up, get educated and that means get off of silly message boards that tell you what you want to hear. Maybe even hire a real lawyer to handle your legal issues, since you might need one.

  8. @ Kalifornia – You are obviously not an attorney. You need to accept reality before you can do anything to help a homeowner. And I’ve done more to help them than you ever will by running people down on the internet simply because they are espousing a viewpoint you don’t agree with, because you’re not educated or proficient enough to get it.

  9. To McGinnis nice to hear clean winning congratulations

  10. You are right. Politics diverts from real issues.

    But Roger, the Trump administration should be all over what was previously covered up by Obama and Dems. Why are they are not doing this? Is it because they are too stupid to get it? Or, because they want to continue the cover up given the massive effect it would have, if disclosed, on the financial institutions and huge derivative market?

    Under any scenario, the people should not have to shoulder the fraud.

  11. Homeward is Ocwen, in disguise…

  12. And while we’re all trying to save our homes, the Deep State is trying to circumvent the election of President Donald J. Trump.

  13. @ “Shilly” (David) Seal

    Don’t YOU “READ SOMETHING STUPID ON THE INTERNET”, such as the below link, because it WILL help YOUR clients, and juxtapose YOUR Yelp criticism(s).



    “American Home Mortgage Servicing, now known as Homeward, appeals the denial of a new trial concerning an award of punitive damages arising from a wrongful foreclosure. Jane McGinnis, the owner of several rental properties, brought suit against Homeward, the servicer of seven of her residential properties’ mortgages, alleging wrongful foreclosure, conversion, interference with property, and intentional infliction of emotional distress. The jury found against Homeward on all claims and awarded McGinnis $3,506,000 in damages ($6,000 for economic injury, $500,000 for emotional distress, and $3,000,000 in punitive damages). Homeward appeals the district court’s denial of a motion for a new trial, arguing (1) that the punitive damages award was unconstitutionally excessive under the Due Process Clause of the Fourteenth Amendment and (2) that the punitive damages award unlawfully exceeded Georgia’s $250,000 cap on punitive damages under O.C.G.A. § 51-12-5.1(f), (g).

    Because we conclude that the award violates neither the U.S. Constitution nor Georgia law, we affirm the judgment of the district court.”

  14. Back at you David…when these greed bags sold loans, sloppily I might ad, they create a huge problem. I have been in court (various courts, dozens of times) and only one person was trying to con the court, that I saw. If people only knew the truth…most loans are paid-off AND NO TRUST TO PROTECT THE INVESTORS EXISTS. The payoffs are going to the servicer. Do some real homework!

  15. Bias is being ultra nice. I call BS…my filings are scrutinized to the word, date, etc…lawyers; wrong dates, wrong parties, wrong amounts, wrong assignments, wrong information…and there are 12 of them and counting. Judge does nothing. Last week the lawyer didn’t show for summons, on a hearing….nothing, judge said nothing! Two sets of rules. I told the judge, I am the “only” legal party” that has standing here. My down payment, payments, upkeep, upgrades, etc…if not for me there would be no REMIC, it’s all a scam!

  16. They get no respect because too many of them pursue cases which are meritless. They often dont do so intentionally. Usually they do so because they read something stupid on the internet. That can happen on facebook, in forums and even at this site. Get competent legal advice up front if you have a good case. There is no silver bullet that makes all foreclosures unlawful.

  17. Our home was taken by the bank and sold by a real estate agent. The original of the note was not produced. Is this an illegal foreclosure?

  18. I am looking forward to fill registration form as much as I could understand

  19. homeowners are at a disadvantage because they can’t produce a MERS satisfaction of mortgage for the judges.

  20. Good insite Neil. I know that B of A, Chase, Citi and many others have been able to get away with all this BS, just as people defraud our justice system now and manipulate our Constitution in my humble opine.

    All those phony institutions like the CFPA, GSE, and FHFA that are full of corruption as Dr. Carson found out- but what did he really do after that- get paid off as well and succumb to the system??

    I wrote to Mulvaney, Dr. Carson, and President Trump and provided a huge outline with proof on old racketeering Bank of America and all its “co-conspirators” like Shellpoint mtg and Seterus who B of A service transferred 3 of my five initial, table funded five loans with countrywide. Not even any kind of response on the three huge packets to these people? So me that shows just how corrupt and involved many of the divisions of our government are in all this up to their eyeballs.

    Too bad there are not some really great attorneys who are willing to finally attack this whole Ponzi scheme nationwide and expose all these racketeering crooks for who they really are. Like so many have said- so surprising that no one has gone to jail, but it is just like the real world out there with so much crime and corruption continuing as it always has. Little wonder there is such an unfair balance of our financial system with the rich getting richer, the poor getting poorer, and us in the middle class baring the brunt of all this and moving downward instead of upward. Guys like Jamie Dimon are supposedly billionaires and many of our corrupt congress becoming millionaires. Such a sad state of affairs and only getting worse in my humble opine. Semper Fi.

  21. “judicial bias” search results….0…1.1.64.psy-ab..0.2.404….0.uK1xuL6Hd20

    What constitutes judicial bias?
    Bias or an Appearance of Bias. … Litigants and their counsel often come to believe that a judge has become biased or prejudiced against them, or in favor of an opposing party; however, bias is an attitude or “state of mind,” not an easily provable “fact.”

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