New Strategies: Request for Comments from Attorneys and Interested Parties

Please address comments suggestions, case law and statutes to the following email address:

NeilFGarfield@hotmail.com

I am currently looking at a few new strategies. I will briefly outline them here not as recommendations but as possibilities that I think deserve exploration. As part of the collaborative effort of the LivingLies blog started in 2007 I am again asking for feedback as I analyze these strategies for legal foundation and likelihood of traction in Federal or State Court.

  1. RECENT QUOTE: “The document which I signed as a Mortgage was in fact an Initial Intent to Issue Mortgage-Backed Securities using my name, my home, my signature and my reputation as a collateral to sell and resell  myriads of times by all possible companies, without any disclosures to me and without my consent to be sold like a cow.

    “Of course nobody disclosed me profits received from selling my home and my private information several times a day; and make millions by trading on my name and reputation.”
    1. QUESTIONS: ARE HOMEOWNERS IN SIMILAR POSITIONS ENTITLED TO RECOVER A ROYALTY FOR UNAUTHORIZED USE OF THEIR NAME UNDER THEORIES OF UNJUST ENRICHMENT?
    2. CAN THIS BE PLED IN RECOUPMENT IN JUDICIAL FORECLOSURES?
    3. WOULD SUCH PLEADING OPEN DISCOVERY TO FACTS THAT WOULD OTHERWISE NOT BE ALLOWED?
    4. DOES THE TRUE NATURE OF THE MORTGAGE TRANSACTION NEGATE THE FORMAL MORTGAGE STRUCTURE OF THE DOCUMENTS IN A COURT OF EQUITY OR LAW?
    5. ARE THERE NEW CAUSES OF ACTION FOR INVASION OF PRIVACY ARISING FROM CONTINUED TRADING OF SECURITIES THAT USE THE HOMEOWNER’S NAME AND FINANCIAL DATA AS FOUNDATION FOR THE VALUE OF THE TRADE?
    6. DO HOMEOWNERS HAVE ANY STANDING TO BRING CLAIMS FOR SECURITIES VIOLATIONS?
    7. IS THERE A CREDIBLE BASIS FOR ASSERTING MISAPPROPRIATION OF THE NAME OF THE BORROWER UNDER FALSE PRETENSES?
    8. WHAT RIGHTS OF ACTION MIGHT CREDIBLY ACCRUE TO THE HOMEOWNERS/BORROWERS UNDER PRIVACY STATUTES?
  2. It has been obvious for at least 10 years that fabricated notes, allonges and assignments have been routinely fabricated, forged, robo-signed, created and utilized for the purpose of depriving homeowners of title to their property. QUESTIONS:
    1. WHAT TRACTION COULD A HOMEOWNER ACHIEVE BY ALLEGING UTTERANCE AND RECORDING OF A FALSE INSTRUMENT?
    2. UNDER WHAT CIRCUMSTANCES WOULD THE USE OF SUCH DOCUMENTS CONSTITUTE PERJURY?
    3. IF THE FABRICATION OCCURRED WITHIN A LAW OFFICE OR AT THEIR INSTRUCTION OR WITH THEIR CONSENT UNDER WHAT CIRCUMSTANCES HAS THE LAW OFFICE UTTERED A FALSE INSTRUMENT?
    4. HAS THE LAW OFFICE COMMITTED OR SUBORNED PERJURY?
    5. IF THE NOTE WAS DESTROYED AND THE “ORIGINAL” PRODUCED IN COURT WAS THEREFORE A REPRODUCTION TO APPEAR AS AN ORIGINAL WHAT ARE THE ETHICAL DUTIES AND LEGAL LIABILITIES OF THE LAWYER PROFFERING SUCH EVIDENCE?
    6. IF THE ALLONGE WAS PREPARED WITHIN THE LAW OFFICE OR AT THE DIRECTION OF THE LAW OFFICE AND NOT IN CONNECTION WITH ANY TRANSACTION IN THE REAL WORLD IN WHICH THE NOTE WAS PURCHASED, WHAT ARE THE ETHICAL DUTIES AND LEGAL LIABILITIES OF THE LAWYER PROFFERING SUCH EVIDENCE?
  3. One of my jobs as a legal consultant to homeowners and lawyers across the country is to perform what I call “legal proctology” — attempting to undo the errors in the file committed by omission or inclusion of facts important to the defense of property against which foreclosure has been initiated. Clients are forever telling me about the mistakes their lawyers made, many of which were not mistakes. QUESTIONS:
    1. UNDER WHAT CIRCUMSTANCES CAN CLAIMS OF “INEFFECTIVE COUNSEL” CREDIBLY BE USED TO GAIN TRACTION IN REVERSING THE PATH TO FORECLOSURE, SALE OR EVICTION?
    2. THE COROLLARY QUESTION IS WHETHER DEFENSE COUNSEL HAS A DUTY TO REPORT WHAT HE EARNESTLY BELIEVES TO BE CONDUCT BY THE FORECLOSURE MILL THAT VIOLATES ETHICAL STANDARDS AND DISCIPLINARY RULES?
    3. AND THE LAST QUESTION IS IN CASES FOR MONEY DAMAGES BROUGHT BY HOMEOWNERS WHETHER LITIGATION IMMUNITY SHOULD BE ATTACKED IN FAILED FORECLOSURES WHERE SOME OR ALL OF THE ABOVE ELEMENTS ARE PRESENT — AS TO THE FORECLOSURE MILL, THEIR STATED CLIENT, THEIR ACTUAL CLIENT, THE STATED TRUSTEE, OR THE STATED SERVICER IF THOSE ASSERTIONS WERE COMPLETELY UNFOUNDED?

 

9 Responses

  1. okay — another delay Brian — for a response — but, hopefully, coming. thanks.

  2. Brian Tracy — know the scenario. “Holder” — nope not the trustee. Umm — how did that happen since the PSA/Prospectus says otherwise? Indemnification? Not relevant in court of law.

    And I will ask – again and again and again — how does the “servicer” claim to hold mortgage and note – for the trust – to which they attach the trustee name as part of the legal name? NO NO NO – Prospectus does not include trustee name as part of the legal name of trust. Trustee is separate and ONLY legal entity that can act. That is not happening. Servicers are acting – not trustees. And that calls into play AMERICOLD.

    No trust EVER includes the trustee as the name included as part of the trust name. Separate entities. ONLY the trustee can act on behalf of the trust. No trustees appear in court — not ever. SEPARATE ENTITIES – no trustee actual representation can be found in any court.

    Been there.

    Thanks Brian.

  3. @ Anon ,

    Agreed , maybe I should have put a /sarcasm “tag” in there … I have a depo from 2013 in the preceding case where the servicers witness (“WF” as Plaintiff couldn’t find a WF rep to be deposed!!) admitted that WF had not been advised of the filing of the suit.

  4. Brian Tracy — the trustee is not represented. Servicer acting directly for trusts. This is not feasible.

  5. @ Anon ,

    I like that Americold … “unincorporated organizations” , ghost orgs , imaginary plaintiffs ,, that’s me… the “trust” is supposedly the pltf and is “represented” by WF as trustee… it is not incorporated or registered in any US state or territory although “assumed” to be a NY entity… “trustee” is stated to be WF but they never had funds to purchase any notes and an entity that is not named on any document was proven in a federal court to have THE insurable interest in the entire issue of notes as the true underwriter and funding agent … I could name 3 or 4 more entities that have a connection and a possible interest… OCWEN/PHH is now teamed up with SLS where in 2011 it was OCWEN with LPS/DocX … It might just be fun to hand this to the FEDS who can pull all these liars and cheats into one room…

  6. Brian Tracy – nothing changed. It remains Ocwen (now really PHH Mortgage) — The attorneys claim that the Trustee name is attached to the trust. They, wrongfully, represent the “Trust” without a trustee – even though they put the trustee name in front of the trust for “show” to the judge. WF will not appear. My question is — how do they claim to get any money to the trust without a trustee???? It is up to the court to determine if WF is legally represented. And, if the court determines that the trust does not need a real trustee — then move it to federal court and demand diversity jurisdiction analysis. See Americold — SCOTUS.

    I am not an attorney and this is not meant to be construed as legal advice.

  7. Neil ,

    Your last point (3.3) regarding the actual vs. named plaintiff…

    This is something that needs to be attacked … I’m on my 2nd go-around , same named pltf both times … actual pltf 1st time was OCWEN… came out in a depo that the named pltf (WF) was never notified of the suit… now on the 2nd go .. actual pltf is again the servicer with WF named. This is intentional fraud on the part of the mill and makes defending much more difficult… it conditions the judge who knows it’s a lie… to accept the next lie and the one after that and give them a pass because he/she is complicit…

    Can you put together a “cookbook” pleading and outline of actions to take in fighting that fraud and resetting the parties back to a level field… Please do not go beyond an outline or people would not put their own work into it. I’m thinking of using admissions…

    Thanks.

  8. These are great questions Neil. Problem is – you won’t get many attorneys to respond because foreclosure defense is not profitable to attorneys. 1) Borrowers don’t usually have the money to pay as attorneys are expensive 2) There is so much bad precedent law that attorneys, today, are afraid to touch these cases.

    I am not attorney. But, I have been dealing with related legal issues for longer than you have even had your blog!

    All mortgages are securitized (except for very large amounts that are sometimes kept in portfolio). Thus, the securities violation question you pose is important.

    What I do know is that “closings” are dubious. The intention of what is supposed to be done is highly questionable. Resulting fraud with bogus documents can carry on for years, and even decades before anyone even discovers it. . Where the money goes is critical. No one should just accept that money goes to the right party as stated, and, that is from the very beginning at any “closing.” But, this information is very difficult to ascertain.

    The government has to do its share to expose. There are no agencies available for help. And, if one is in litigation, agencies will not even look at anything.

    As a result, most just give up. They should not. Hopefully, you will get answers to your questions and go with it.

  9. My answers:

    1.
    1. What does the current, at the time of incident, law say?
    2. Of course it can be pled. But even if pled effectively, is there a judge on this planet who would rule favorably to the Defendant? History, so far, seems to predict a big NO.
    3. I certainly should. There would/should/could be actual relevant documentation that supports Defendant’s position.
    4. I would not think so. The true nature is the true nature. Just because that true nature was subverted post signing shouldn’t change the “true nature” unless actions were taken that destroys the actual transaction all together.
    5. I would think identity theft would be at the least… relevant.
    6. If their “transaction” was altered into a securities arena without their acknowledgement, then I believe their transaction itself should be voided and if so then no, they would have no standing to bring claims for security violations as those violations would have commenced POST a voided transaction. If found that their original transaction remains “in effect’ then an absolute YES as even though they were drug into the securities violations, they were done so at the behest of some other entity than themselves and without knowledge of same.
    7. That basis, I believe can be found in the current “identity theft” laws.
    8. Same answer as 7. Above.

    2.
    1. Probably the same as they get now showing notes created after foreclosure initiation, post trust closing date, signed by known robo-signer and everything else currently being shown to judges, which seems to be… if you pay some Attorney enough money he can actually do something but everyone else just gets apathy and ignored out of their home.
    2. Under any circumstance! Evidence is testimony. False testimony is perjury. The bigger question is should an officer of the Court be charged (and imprisoned) for knowingly bringing false/forged/impossible to exist documents into a court of law and then using them to game the system?
    3. Under every circumstance! And as Officers of the court of Law their punishment should be at the extreme end of harshness… setting an “example to stop wrong doing” is one of the mandates of our courts. To do otherwise will only continue to erode “we the People’s” confidence in our entire judiciary and all of its members and associates. This “oh what he did isn’t really that bad and he’s such a great guy” BS is just that. The Honey Dipper than empty’s my septic tank is a great guy. The mechanic that works on my car is a great guy. My Mailman is a great guy. Just because he works in the legal arena should only be a consideration AGAINST him if he committed ANY crime… because he… of all people… knew better, was educated to know better… and swore an oath to that effect. This isn’t “just perjury” this is treason against his fellow man.
    4. Of course.
    5. He is to tell the truth! OK, the original was destroyed… he should prove there was a true note owned by his client. He should prove that the note was destroyed by offering testimony or evidence proving same. He should tell the truth. He is an officer of the Court which means he is not supposed to make up BS AND he is also not supposed to leave out “truthful facts” even if they are at the cost of his client. And if he’s caught lying… he should be imprisoned. See above.
    6. see above.

    3.
    1. When clear and convincing evidence is provided showing proof of same.
    2. Absolutely and also a duty to aggressively push for prosecution at the highest levels of same.
    3. Absolutely. Drag a person through the legal system (which is a horror story in and of itself) ruining their lives for whatever period of time with no repercussions? That’s some real arrogant warfare there. I can smack you silly for months and months and months and you can’t even fight back… or YOU go to jail! Legal Arrogance.

    And there’s one more point I’d like to bring up… Defense Lawyers should be allowed to recapture their expenses AND their Fee’s (a percentage of damages +) in foreclosure defense. There has to be a way to figure out just how this illegal foreclosing industry can be made to cover all attorney fee’s. Until then, defending foreclosure just isn’t profitable enough to bring in the number of attorney’s necessary to turn this whole cluster F__k of a situation around.

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