How to present the defense in foreclosure

Program note: The Neil Garfield Show will not air tonight due to personal and professional time conflicts.

As we all continue to fight what we know are wrongful foreclosures we struggle with how to reveal that to a judge in a way that is so compelling that even the most bank biased judge will feel so uncomfortable with the proof that he or she is compelled to rule for the homeowner. As long as the judge think the forced sale of the property is going to result in restitution for an unpaid debt the ruling will most likely be for the claimant even though the claim was at best defective and probably fraudulent

 

In response to a question from a lawyer in Massachusetts who was lamenting the loss of his forensic “expert” and other problems defeating illegal foreclosures I wrote the following:

While talented, she may suffer from the same delusions of grandeur as some other forensic experts — but she can still be used. Her impulse to offer opinions must be thwarted. Her factual analysis is usually spot on except for some anomalies that she still doesn’t understand. I warned such unqualified “experts” years ago that they would undercut their work by proffering opinions for which they are completely unqualified especially as to conclusions of law —which no “expert” can proffer. They are easily undermined when they appear to be an advocate instead of a finder of fact and a reporter of discrepancies. 

You are of course completely correct when you describe the current judicial climate and context. Yet I have won cases repeatedly even with judges who were distinctly pro-bank.

The key appears to be getting them to feel so uncomfortable with the proof of the claimant that they can’t rule for them even if they think that such ruling would result in the right thing — i/e/. restitution for unpaid debt. Using that as your first goal you can move to your second goal which is giving the judge comfort in ruling for the homeowner and setting up a claim for wrongful foreclosure.

Once a judge comes to the conclusion that the proof has failed and that the documents are not authentic or even suspected of fabrication, then he/she can state factual findings that say that the Plaintiff never had any right to the debt and lacked standing to foreclose. In two of my cases the pro-bank judge stated at length (30 minutes or more) why the casen utterly failed and was based upon at least suspicious documents.

I have recently found it helpful to point out the difference between enforcement of a note and enforcement of a mortgage. All 50 states have adopted Article 9 §203 UCC which states that a condition precedent to enforcement of a mortgage is that the party who initiates the foreclosure action must be the owner of the debt of reason of having paid value for it.

The banks have succeeded in confusing the issue especially when unopposed or when opposed by a pro se litigant or a lawyer who does not understand the basic precept that the condition precedent of payment of value for the debt is never waived or to be ignored.

The banks get around this by arguing for a legal presumption that delivery of the note constitutes delivery of the debt (or delivery of title to the debt) and then presume that the debt was paid for by the transferee. That is a presumption on a presumption.

Then the court presumes that the transferor was the owner of the debt because if the transferor was not the owner of the debt then the purchase would have been just for the note and not the mortgage (transfer of mortgage without the debt is a legal nullity).

And if the purchase was just for the note then the claimant would appropriately claim that it is a holder in due course which frees it from most defenses of the maker of the note regardless of who owns the debt. But the HDC may not foreclose on the mortgage because it was not paying for the debt unless the owner of the note happens to be the owner of the debt. And not so oddly there is never a claim of HDC status in today’s foreclosures.

So the way forward might be a recent tack I have taken. And that means taking it one step further. If the claimant did not purchase the debt for money the claimant is not entitled to foreclose. But this still leaves the corut thinking that this is a technical objection to prevent restitution for a just unpaid debt. While the “other creditor” idea is theoretically correct, it gains no traction in court. 

But a close corollary does gain traction, to wit: that if the claimant is not the owner of the debt it may be presumed that upon forced sale the proceeds are not going to the owner of the debt unless the proof establishes some representative capacity, even if that capacity is barred by Article 9 §203 UCC.

By arguing that no proof has been alleged and no allegation or assertion has been made that the proceeds will go to the party who owns the debt by virtue of having paid for it, you effectively eliminate the ability of the judge to presume otherwise since there is not even a scintilla of anything to support that view, which incidentally is in fact entirely correct — the proceeds do not go to anyone who has paid value for the debt.

Which brings us to the point that makes every judge uncomfortable regardless of  bias — if the debt is not going to be repaid by the forced sale of the property then it follows logically and inescapably that the sale will result in revenue to the participants in the foreclosure, not the repayment of debt.

And foreclosure is a remedy exclusively reserved to a claimant seeking restitution of unpaid debt owed to the claimant. If the claimant has not paid for it then the claimant does not have any accounting records showing that it is reporting a loan receivable for the subject debt, note or mortgage and that means no injury, no standing and even malicious motive attempting to weaponize the foreclosure process to achieve revenue to the detriment of both the homeowner and the true owner of the debt who paid for it.

It should be argued that the obtuse complexity of sales of mortgages into the secondary markets and claims of securitization is not the product of some plan of homeowners to escape a just debt. It is the product of a plan by banks who saw an opportunity that was worth their effort despite the risk that the plan failed to comply with law. Whether the banks can create a lawful correction to the problem is not for the court to decide nor for a borrower to propose. A foreclosure must be decided based upon the claim alleged. If that claim is invalid then the claimant must lose.

45 Responses

  1. Anyone know what is going on with Neil?…

  2. Whether a party has standing to bring a lawsuit is often considered through the constitutional lens of justiciability – that is, whether there is a “case or controversy” between the plaintiff and the defendant “within the meaning of Art. III.” Warth v. Seldin, 422 U.S. 490, 498 (1975). To have Article III standing, “the plaintiff [must have] ‘alleged such a personal stake in the outcome of the controversy’ as to warrant [its] invocation of federal-court jurisdiction and to justify exercise of the court’s remedial powers on [its] behalf.” Id. at 498–99 (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)).

    To show a personal stake in the litigation, the plaintiff must establish three things: First, he/she has sustained an “injury in fact” that is both “concrete and particularized” and “actual or imminent.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (internal quotation marks omitted). Second, the injury has to be caused in some way by the defendant’s action or omission. Id. Finally, a favorable resolution of the case is “likely” to redress the injury. Id. at 561.

    When a person or entity receives an assignment of claims, the question becomes whether he/she can show a personal stake in the outcome of the litigation, i.e., a case and controversy “of the sort traditionally amenable to, and resolved by, the judicial process.’” Sprint Commc’ns Co., L.P. v. APCC Servs., Inc., 554 U.S. 269, 285 (2008) (quoting Vt. Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 777–78 (2000)).

    To assign a claim effectively, the claim’s owner “must manifest an intention to make the assignee the owner of the claim.” Advanced Magnetics, Inc. v. Bayfront Partners, Inc., 106 F.3d 11, 17 (2d Cir. 1997) (internal quotation marks and brackets omitted). A would-be assignor need not use any particular language to validly assign its claim “so long as the language manifests [the assignor’s] intention to transfer at least title or ownership, i.e., to accomplish ‘a completed transfer of the entire interest of the assignor in the particular subject of assignment.’” Id. (emphasis added) (citations omitted). An assignor’s grant of, for example, “‘the power to commence and prosecute to final consummation or compromise any suits, actions or proceedings,’” id. at 18 (quoting agreements that were the subject of that appeal), may validly create a power of attorney, but that language would not validly assign a claim, because it does “not purport to transfer title or ownership” of one. Id.

    On September 15, 2016, the New York Appellate Division, First Department, issued a decision addressing the foregoing principles holding that one of the plaintiffs lacked standing to assert claims because the assignment of the right to pursue remedies did not constitute the assignment of claims. Cortlandt St. Recovery Corp. v. Hellas Telecom., S.à.r.l., 2016 NY Slip Op. 06051.

    BACKGROUND:

    Cortlandt involved four related actions in which the plaintiffs – Cortlandt Street Recovery Corp. (“Cortlandt”), an assignee for collection, and Wilmington Trust Co. (“WTC”), an indenture trustee – sought payment of the principal and interest on notes issued in public offerings. Each action alleged that Hellas Telecommunications, S.a.r.l. and its affiliated entities, the issuer and guarantor of the notes, transferred the proceeds of the notes by means of fraudulent conveyances to two private equity firms, Apax Partners, LLP/TPG Capital, L.P. – the other defendants named in the actions.

    The defendants moved to dismiss the actions on numerous grounds, including that Cortlandt, as the assignee for collection, lacked standing to pursue the actions. To cure the claimed standing defect, Cortlandt and WTC moved to amend the complaints to add SPQR Capital (Cayman) Ltd. (“SPQR”), the assignor of note interests to Cortlandt, as a plaintiff. The plaintiffs alleged that, inter alia, SPQR entered into an addendum to the assignment with Cortlandt pursuant to which Cortlandt received “all right, title, and interest” in the notes.

    The Motion Court granted the motions to dismiss, holding that, among other things, Cortlandt lacked standing to maintain the actions and that, although the standing defect was not jurisdictional and could be cured, the plaintiffs failed to cure the defect in the proposed amended complaint. Cortlandt St. Recovery Corp. v. Hellas Telecom., S.à.r.l., 47 Misc. 3d 544 (Sup. Ct., N.Y. Cnty. 2014).

    The Motion Court’s Ruling

    As an initial matter, the Motion Court cited to the reasoning of the court in Cortlandt Street Recovery Corp. v. Deutsche Bank AG, London Branch, No. 12 Civ. 9351 (JPO), 2013 WL 3762882, 2013 US Dist. LEXIS 100741 (S.D.N.Y. July 18, 2013) (the “SDNY Action”), a related action that was dismissed on standing grounds. The complaint in the SDNY Action, like the complaints before the Motion Court, alleged that Cortlandt was the assignee of the notes with a “right to collect” the principal and interest due on the notes. As evidence of these rights, Cortlandt produced an assignment, similar to the ones in the New York Supreme Court actions, which provided that as the assignee with the right to collect, Cortlandt could collect the principal and interest due on the notes and pursue all remedies with respect thereto. In dismissing the SDNY Action, Judge Oetken found that the complaint did not allege, and the assignment did not provide, that “title to or ownership of the claims has been assigned to Cortlandt.” 2013 WL 3762882, at *2, 2013 US Dist. LEXIS 100741, at *7. The court also found that the grant of a power of attorney (that is, the power to sue on and collect on a claim) was “not the equivalent of an assignment of ownership” of a claim. 2013 WL 3762882 at *1, 2013 US Dist. LEXIS 100741 at *5. Consequently, because the assignment did not transfer title or ownership of the claim to Cortlandt, there was no case or controversy for the court to decide (i.e., Cortlandt could not prove that it had an interest in the outcome of the litigation).

    The Motion Court “concur[red] with” Judge Oeken’s decision, holding that “the assignments to Cortlandt … were assignments of a right of collection, not of title to the claims, and are accordingly insufficient as a matter of law to confer standing upon Cortlandt.” In so holding, the Motion Court observed that although New York does not have an analogue to Article III, it is nevertheless analogous in its requirement that a plaintiff have a stake in the outcome of the litigation:

    New York does not have an analogue to article III. However, the New York standards for standing are analogous, as New York requires “[t]he existence of an injury in fact—an actual legal stake in the matter being adjudicated.”

    Under long-standing New York law, an assignee is the “real party in interest” where the “title to the specific claim” is passed to the assignee, even if the assignee may ultimately be liable to another for the amounts collected.

    Citations omitted.

    Based upon the foregoing, the Motion Court found that Cortlandt lacked standing to pursue the actions.

    The Appeal

    Cortlandt appealed the dismissal. With regard to the Motion Court’s dismissal of Cortlandt on standing grounds, the First Department affirmed the Motion Court’s ruling, holding:

    The [IAS] court correctly found that plaintiff Cortlandt Street Recovery Corp. lacks standing to bring the claims in Index Nos. 651693/10 and 653357/11 because, while the assignments to Cortlandt for the PIK notes granted it “full rights to collect amounts of principal and interest due on the Notes, and to pursue all remedies,” they did not transfer “title or ownership” of the claims.

    Citations omitted.

    The Takeaway

    Cortlandt limits the ability of an assignee to pursue a lawsuit when the assignee has no direct interest in the outcome of the litigation. By requiring an assignee to have legal title to, or an ownership interest in, the claim, the Court made clear that only a valid assignment of a claim will suffice to fulfill the injury-in-fact requirement. Cortlandt also makes clear that a power of attorney permitting another to conduct litigation on behalf of others as their attorney-in-fact is not a valid assignment and does not confer a legal title to the claims it brings. Therefore, as the title of this article warns: when assigning the right to pursue relief, always remember to assign title to, or ownership in, the claim.

  3. Storm – it is you that does not understand what happened during the financial crisis. But if you can actually help anyone – do it. Just make sure you do it right. From what I see, you don’t understand mortgage title, or debt collection, and you don’t care.

  4. Javagold, feel free to discuss privately any questions you may have.

    Can’t waste anymore time with brainwashed dupes, who have foreclosure derangement syndrome. They don’t even understand what they’re reading; can’t back up any comments they make with any law or facts; believe the courts are corrupt and clearly have terminal cases of cognitive dissonance. But, more than happy to have to have a discussion with intelligent people who have common sense.

  5. Storm — you make no sense — the borrowers’ thought there was a contract — they were wrong — any contract long breached by the other side. Once breached — contract no longer exists. PERIOD. You refuse to go back to prior transaction.

    And, yes Java – modifications should be recorded. The reason is obvious — the fake original “contract”: — was never real to begin with. So — who did you modify with when there was no valid contract to begin with? This is a particular problem with a defunct claimed “originator” – who never executed any contract or “Note” to begin with.

    Freddie/Fannie — hate to say it — were scammed. So were borrowers, and investors in PLMBS. Who is ruling the “roost?” Debt buyers – and don’t buy into it!!! That is how they make their living — fraud. Biggest business in the world. Economies will collapse if exposed. We are getting there.

  6. Storm-

    Does the Plaintiff in a fraudclosure Who has an assignment of mortgage from Servicer A, Does the AOM need to have the Freddie Mac modification of the original mortgage recorded on it ?????

    It would make sense to me. As it would seem servicer A assigns mortgage to servicer B but that doesnt prove they assigned the modification of mortgage, that they are now trying to foreclose on as in default .

    The reason I ask this. Is the AOM in the complaint has the 1st modification recorded on the AOM. But the 2nd and most recent modification is not on AOM document.

    Thanks. ( I hope that is a better written question.)

  7. ANON, once again you make a schizophrenic argument. You claim: “borrowers didn’t breach contract – there was no contract to breach- it had already been breached on the other side.”

    If there was no contract, “the other side” couldn’t have breached a contract that didn’t exist.

    This is why I say its a waste of time. Please address someone else, I don’t have time for nitwittery.

  8. No Storm — borrowers didn’t breach contract – there was no contract to breach- it had already been breached on the other side. I don’t find out until a DECADE later. Not in foreclosure. Never missed a payment – not EVER. Have all proof — by some stroke of luck. However, that is not what internal records show. TITLE — and real authority is the issue. And, it is not pretty.

    If you don’t go back — you know nothing.

  9. Javagold, would you be kind enough to rephrase your question, it doesn’t make sense to me, the point you’re trying to get at. So, I can post some law, either to refute it, or agree with it.

  10. ANON, people are in court in judicial states because they breached the contract.

    There are no foreclosure cases in the majority of states, non-judicial. Because the legislators know the borrower agreed that if they breached the contract, the lender or its assigns could take the property, basically confessing judgement, where its no need to get the courts involved.

  11. Poppy, the court’s aren’t corrupt, I know sometimes it looks and feels that way, but you can’t go into court, trying to defend a breach of contract case, wherein you’re the party that breached, and expect to win without evidence of wrongdoing on the part of others involved in the contract.

    Example:

    JURY GIVES WOMAN $1.25M IN LAWSUIT OVER MORTGAGE

    A Baltimore native who defaulted on a subprime loan has been awarded $1.25 million in damages from her lender, Wells Fargo Bank N.A. The case may lead to similar lawsuits nationwide, and also may help Baltimore City’s suit against the bank, claiming it targeted minority neighborhoods with subprime loans, legal and banking experts say.

    Kimberly L. Thomas was awarded $250,000 in damages and $1 million in punitive damages in Montgomery County Circuit Court July 31. A six-member jury convicted Wells Fargo of fraud, negligence and other charges for inflating Thomas’ income and assets on her mortgage application, and locking her into a bigger loan than she had applied for — one she couldn’t afford.
    Thomas, 41, said in an interview with the Baltimore Business Journal that her case “destroys the myth” that the sub-prime mortgage meltdown is fueled by home buyers taking loans they can’t handle.

    “They make it seem like it’s the person’s fault,” Thomas said from her Silver Spring townhouse. “But they don’t know what’s going on behind the scenes.”

    Brian Maul, her attorney, said Thomas’ loan agent pushed through a bigger mortgage to reap a higher commission. Teri Schrettenbrunner, a Wells Fargo spokeswoman, said the bank followed “responsible lending practices” and will appeal the verdict.

    Thomas’ lawsuit, filed in February 2007, may impact Baltimore City’s case; the city alleges that Wells Fargo targeted Baltimore’s minority neighborhoods with “unfair, deceptive and discriminatory lending,” thus helping fuel a foreclosure crisis. The suit, filed in January in U.S. District Court of Maryland, has not gone to court yet.

    Suzanne Sangree, chief solicitor in the city’s Department of Law, said the case may not set a legal precedent because it was decided by a jury, without a judge-issued opinion. But the verdict would help nonetheless, as it “supports the allegations of our complaint,” she said.

    “The fact that a jury looked hard at the loan documents and said Wells Fargo was negligent, that’s essentially what we’re saying in Baltimore City as well,” Sangree said.

    Thomas’ case dates back to June 2006. At the time she was considering separating from her husband, so Thomas, a mother of two, decided to leave Silver Spring and buy a $505,000 house in Burtonsville. Her sister referred her to a Wells Fargo Home Mortgage office in Westminster, where Thomas applied for a $535,000 loan, with a 7.13 percent interest rate.

    Roughly two to three weeks later, her loan agent submitted the application with a string of incorrect information, according to court documents. This included the Social Security number of Thomas’ sister, who had a higher credit rating; a monthly income of $14,000, which was nearly double Thomas’ actual income; and assets that included $30,000 cash at Constellation Federal Credit Union. According to the suit, Thomas never claimed to have this much money socked away, at Constellation or elsewhere.

    Thomas soon learned that her loan was at 10.625 percent interest, with a monthly payment of roughly $4,600, well above the $3,000 she was expecting. She signed the contract anyway, at the urging of her attorney at the time, figuring it was an honest mistake and Wells Fargo would correct it.
    But over the next few days, Thomas said, the bank urged her to refinance with another lender. Thomas then realized she couldn’t back out of the deal, and within a week of closing on the loan, she put the house back on the market.
    She also decided to sue; among other problems, her credit rating was getting clobbered by missed mortgage payments. She feared this would harm her job as a government contractor and impede future big-ticket purchases.
    Eight law firms rejected Thomas. She said they worried she didn’t have enough money to take on the bank, before Gordon & Simmons LLC, of Frederick, took the case.

    “Everybody knows somebody who’s been messed over by them,” Thomas said of the San Francisco bank. “But you don’t see results. You don’t actually see people who say that they won.”

    Poppy, we find these kinds of evidence the vast majority of the time. So, don’t say people don’t and can’t win. It’s all about having the analysis of the transaction, to adduce the facts and evidence to win your or settle your case. Attorneys call our analysis of the mortgage transaction, the “roadmap to victory.”

  12. Storm — the onion will unravel. Fact remains – no one should even have to be in court. The government should have peeled back the onion a long time ago. If they had, none of us would even be here posting. They didn’t because our regulators were probably “boating” at the time they allowed all to happen.

  13. ANON, thanks for asking, I enjoyed getting away for a day.

    What I mean by the last transaction is the last loan and any subsequent mods, anything prior to that loan is dead.

  14. usedkarguy, there’s no “ONION unraveling.” What you just posted a link to is from a known crackpot fraudster, by the name of Brian Smith, who’s another moron who has no idea what he’s talking about.

    NJ Fraudster Can No Longer Delay Foreclosure, 3rd Circ. Says

    By Jeannie O’Sullivan
    Law360 (December 18, 2018, 8:54 PM EST) — The Third Circuit has refused to disturb a bankruptcy court’s liquidation of a legally embattled New Jersey college professor’s assets in furtherance of a bank’s long-stalled foreclosure on her home, ruling Monday that she never raised any “meaningful challenge” to the move beyond her disagreement with it.

    A three-judge panel affirmed a district court’s approval of a bankruptcy judge’s conversion of Lynn Z. Smith’s Chapter 13 case to a Chapter 7 proceeding, which represented the third bankruptcy filing between Smith and her husband following two state securities fraud judgments against them totaling nearly $6 million and Manasquan Bank’s mortgage foreclosure action.

    While the appeals court rejected Manasquan’s contention that the multiple bankruptcy filings were in bad faith, it nonetheless agreed that the amount of her debts precluded a Chapter 13 proceeding.

    “Despite the prolixity of her filings in the bankruptcy court, the district court and this court, Smith has never raised any meaningful challenge to the bankruptcy court’s conclusion that conversion to Chapter 7 was warranted because [bankruptcy law] renders her ineligible to proceed under Chapter 13,” the Third Circuit’s decision said.

    “Smith argues that the securities fraud and mortgage foreclosure judgments against her are fraudulent and invalid but, as the district court explained, Smith may not relitigate those matters in the bankruptcy court,” the court continued.

    The legal matters at issue date back to 2009, when the New Jersey attorney general secured respective securities fraud judgments against Smith and her husband, Brian, of $809,000 and $5.1 million following a trial, according to the instant decision. The trial court found the Smiths had defrauded investors and used the funds to pay personal expenses such as mortgage payments on Lynn Smith’s $1 million home, the decision said.

    That same year, Manasquan filed a mortgage foreclosure action over the Smiths’ alleged default on two mortgages for that home totaling over $300,000, the decision said.

    With the foreclosure action pending, Lynn Smith filed for Chapter 13 bankruptcy protection in 2011, which automatically stayed the foreclosure action, according to the decision. However, the bankruptcy judge declared the petition nonfeasible later that year and dismissed the petition, the decision said.

    A New Jersey state court two weeks later ruled in favor of Manasquan, which eventually obtained a final judgement of foreclosure in January 2017, the decision said. Then, three days before a scheduled sheriff’s sale that August, Brian Smith filed his own bankruptcy petition, which triggered another stay of the foreclosure, according to the decision.

    Manasquan convinced a judge to lift the stay and a foreclosure sale was rescheduled for December 2017, according to the decision. The bankruptcy court also denied Brian Smith’s move to reinstate the stay and, on the same day the sheriff’s sale was scheduled, dismissed his bankruptcy case for his “repeated failure” to attend meetings with creditors, the decision said.

    Just 10 minutes after the bankruptcy court ruled against Brian Smith, with two hours left before the sheriff’s sale was about to launch, Lynn Smith filed a pro se Chapter 13 petition that sparked the instant opinion. The petition stayed the foreclosure yet again, according to the decision.

    Manasquan Bank then moved to convert the Chapter 13 proceeding into a Chapter 7 liquidation, arguing that Lynn Smith filed the petition in bad faith, and wasn’t eligible to proceed under Chapter 13 because her debts exceeded the allowable amount, the decision said. Under bankruptcy law, individuals can only file for Chapter 13 protection if they owe less than $394,725 in unsecured debt or less than $1,184,200 in secured debt, according to the decision.

    Following a hearing Lynn Smith “simply failed to attend,” the bankruptcy court concluded Smith was ineligible under this provision, the decision said. U.S. District Judge Anne E. Thompson affirmed that finding in August.

    Noting that the record showed a “persistent pattern of Smith’s failure to appear for hearings” in both the bankruptcy and foreclosure matters, the Third Circuit said Smith has shown “nothing more than disagreement” with the courts to prove her claim the court system was biased against her.

  15. Summer, in order to do what you suggest, the person would need to possess common sense.

    Regrettably, most of the people who frequent these blogs and Facebook groups are the brainwashed dupes, of the stall attorneys and the chain of title/securitization/forensic audit scammers, who left their common sense at the door a long time ago!

  16. JAVA — you are on right track — all of this was just assignment of debt from servicer A to servicer B etc. All were made to look like a valid new mortgage – but, they were not a “new’ mortgage.

    Poppy — hear you loud and clear. .

    usedkarguy — what you refer to is so true. Judges do not want to even hear these cases and will pass it on to another judge – who will do the same thing. No one looks at the “merits” — they just apply what the other side says. Some states particularly bad. You would not believe how many judges I have had – hard to even count any more. .

  17. Storm – hope you enjoyed your day on the boat.

    In my case – who claims to be PETE matters because I am not in foreclosure.

    But what I know applies to foreclosures. The problem with your analysis – “We examine every doc that was involved in the mortgage transaction” is that what happened in the PRIOR transaction matters.

    Do you examine the PRIOR transactions? This would be extremely helpful to me and those in foreclosure, and would answer a lot of questions asked here. .If you limit to last transaction docs – you are missing everything.

    Thanks.

  18. I’m going to just share an opinion here: I’ve been on here for years under a different name previously after getting abused by one member, christine, which is also my real name, which she adopted to abuse everyone on here…it was exhausting. Most of you will remember.

    Anyway, having been through state courts, federal courts, bankruptcy courts, etc…I have concluded, with certainty, these courts are ruling outside the law. This has nothing to do with PETE. I come from a small community and am certain 100% the fix is in. The details don’t matter, unless anyone wants them. Homeowner’s are being put to task, when anyone with a brain knows there are legal and equitable defenses to this contract. Storm is right about the breaches, but I have to say, this is not the beginning and end all. Even if you have the silver bullet, the judges, attorneys and clerks are liars. I did not easily come to this conclusion and each person has to decide for themselves.

    I just read the case from usedkarguy and is it compelling. Made me think.That woman is right. I too have an uninhabitable property, from constant flooding. But, the bigger issue here: recoupment and remedies from breach’s and wrongs. The battle is time consuming, expensive and draining. As inadequate as I may be legally, the outright breaking of rules, disregard of law and omissions of material facts is unconscionable. Even the contract, undisclosed to all of us, is “unilateral”…they try to cover every action, and the disclosure is buried in the paperwork. I, personally, will never subscribe to the idea one can know and understand everything they sign. And or do your diligence…In my case you would not know about the flooding prior to purchase, unless it was happening when you previewed the property. Ten years later, it is obvious from the constant erosion and I have been left to deal with it. If they get this property through foreclosure they will do it again to someone else. Truthfully, in most cases a compromise of title too, is an issue long term.

    The bottom line, this problem is pervasive and the cost of all of it, falls on the buyer. At one point I had confidence someone would follow the law…Not yet and I am almost 11 years in. The judge says: you had use and enjoyment of the property, pay the folks…I said: would you like to live here, I’ll sell it to you for $10.00, ’cause that’s all it’s worth. And I have paid three (3) lawyers to just lie through their teeth. File a bar complaint, lmao, yeah right.

    I am not really angry, the truth is evident. If I were to buy again, this would surely not happen. I will continue to push through the courts and cost them as much money as they could have paid me. The game is the game…and I am getting better at it. They need to hold their wallets…

  19. Does the pretender lender who is Plaintiff in a fraudclosure need an AOM that has the modification of the original mortgage recorded on it ?????

    It would make sense to me. As it would seem servicer A assigns mortgage to servicer B but that doesnt price they assign the modification. Correct ????

  20. Storm, your website alludes to one victory. What’s the story?

  21. https://recoverybase.org

    the ONION is unraveling

  22. Why would not ask the simple question – who cashed your Mortgage payments?

    It is easy to figure out. Just go to to your bank and ask who cashed your check. All illusions will be over.

  23. Al, there’s only one contract made up of two docs the note and mortgage/deed of trust.

    We examine every doc that was involved in the mortgage transaction; closing docs, appraisal, notices of default, substitution of trustee, correspondence to include e-mails, loan modification attempts forbearance attempts, short-sale attempts, any nonsense you may have bought like these scam chain of title/securitization/forensic audits, court cases filed, etc., etc.

    Sorry, but I have to go enjoy my boat, to nice a day to be inside.

  24. Storm….there are two contracts…which contract do you folks attack first…the note or the DOD?
    Does it matter how the holder of the note acquired the note? In a trust situation, the depositor must pay for the note in a true sale. Then the Trustee is required to inspect all docs to make sure everything has be performed properly and certifies all transfers, assignments and sales. I guess my question is…what if the actions getting all of the docs were done with “dirty hands”. How would that affect the contracts?

  25. Storm.

    Why do Fannie & Freddie not have to appear as Plaintiff in fraudclosures when they and BOA the Loan was sold to them immediately after closing ?????

  26. ANON, more supposition without facts. And it still wouldn’t matter if you pay the PETE!

    Most of the arguments you make have been made before and the people were laughed out of court.

  27. In the foreclosure world – PETE, and how he came be, is highly questionable. PETE is most often – a fake. .

  28. ANON, in the foreclosure context, if the PETE gets paid, the obligation gets discharged–PERIOD. Nothing else matters!!!

  29. Al, only the party to be charged has to sign. So, these scammers that go around telling people the bank has to sign are just spreading crackpot disinformation.

  30. Storm — I don’t totally disagree with what you write except:

    1) The Fed Res Opinion to the TILA – which became codified as law – describes difference between a “beneficiary” and “owner.” Security investors are beneficiaries of CURRENT cash flow pass through, but they are not owners. They do not acquire legal title by securitization. This makes sense, as beneficiaries may change. So, who is the legal holder/owner and are they represented??

    2) Borrowers have a right to negotiate with the legal holder/owner – not beneficiaries.

    3) Borrowers care where money goes to establish title to property – not just payment of debt to right party (which is also fundamental).. I know this is different in judicial and non judicial states, but it is critical to both. There tends to be a big focus on non judicial states, but judicial states, for some odd reason, just follow non judicial states – which makes no sense.

    4) I am not a lawyer, but once a contract is breached, ie — prior “owner” not paid – the contract should be dead. If you analyze this, and can show what really happened — prior party not paid at contract time — that is the right start. This is what occurred. It was layered debt upon layered debt. Anyone who really researches this will see that. If you can do — you have an important role (again, this is focus is ONLy on non bank origination).

    It is not easy, and this is because of robo signing and bogus documents (which has already been established – and settled – without benefit to homeowners). I know it is hard – but it is there. There has been too much focus on the robo signing and bogus docs — and not enough focus on WHY there are robo signed docs. This was not “clerical” error. But, for a reason.

    I can only point in a direction — I cannot advise. If you are here to help, you can ignore – or look into it. Up to you.

    Thanks.

  31. Storm….why is there only one signature on the DOD and the note? Should there be two? Just wondering

  32. ANON, don’t totally disagree with your comment “t is the other side that breached the contract before any borrower did. The borrower had no contract to breach because it had already been breached.” The part I disagree with is if there was no contract, than there’s nothing to breach.

    This is what Mortgage Fraud Examiners does for a living, analyzing transactions (contracts) for breaches, errors, tortuous misconduct, set offs, statutory/regulatory mandates not followed, etc., etc.

    Most everyone, misunderstands Ownership status and PETE status. Ownership means the right to economic benefits of the note, and includes monthly payments, the proceeds of a voluntary payoff or short sale, and foreclosure proceeds. The significance of these two sets of rights, ownership and PETE status, is sharply distinct. PETE status refers to rights against the maker of the note—the borrower. Thus, a borrower can negotiate with the party having PETE status to modify the loan, accept a payoff for less than the face amount owed, or approve a “short sale” or a deed in lieu of foreclosure, and be assured that any agreement reached with the PETE in any of these negotiations will be binding. On the other hand, the borrower is typically unconcerned with the identity or separate existence of the owner—the party to whom the proceeds of the loan will ultimately be paid. If the borrower pays the PETE, the borrower’s obligation is satisfied.

    In the context of a foreclosure blog, people need and want remedies, and the only proven remedy is attacking the contract, everything else is just mental masterbation!

  33. Storm — I cannot provide facts publicly yet, but I will soon. What I hope I have done is help people understand that the contract was not valid to begin with, and that the securitization was fake.

    As to court cases, unfortunately, there are too many cases where the facts are just not there. It is very difficult for homeowners to get the true facts – and that is for a reason. But, for that reason, the cases just do no justice. I hope you understand that it is the other side that breached the contract before any borrower did. The borrower had no contract to breach because it had already been breached. This does not apply to all loans, and all securitizations — most after the crisis, and before the crisis are valid (we had no private label trusts then). As Ian points out — the non bank originators are the problem.

    And, yes, I am not a scammer, and I am not an attorney. I am just a regular person who cares. And, yes, I was duped, and so was anyone else who had one of these non bank “loans” — (I prefer to call them “transactions.”) So were “investors” duped. We were all duped.

    I have asked this question before, and you have not answered. I don’t know why. If the transaction is legal, who do you think legally owns the “transaction” (and you do have to think outside non-judicial for this- many states judicial) — the servicer? the REMIC trustee, the “trust,” the investors, non-bank originator, warehouse lender, security underwriter, a debt buyer, a bank, the government, someone else, – or, in your opinion — it does not matter? ,

    Thanks.

  34. You’re hurting my head, Storm.

  35. Poppy, all of these REMIC, assignment, ad nauseum arguments are a waste of time and money.

    The reason the majority of states are non-judicial is because the legislators know, the homeowner contractually agreed that if they breached the contract, the lender or their assigns could have the property, in essence the homeowner confessed judgement and there’s no need to get a court involved.

    These foreclosures are breach of contract cases, and if you’re the party that breached, you’d better attack that contract if you want to save your home–PERIOD!!

  36. ANON, not “stubborn” or “arguing”, just I know the law as it pertains to mortgage transactions. The law is all that matters. Everything else is just useless rhetoric and a waste of everyone’s time.

    You’re entitled to your own opinion, but not your own facts. I gave you an opportunity to provide facts, which you said you had, but all I received in return is more useless rhetoric. You think you know what happened, but in reality you’ve been duped.

    I don’t think you’re a scammer, matter of fact I know you’re not; but just like a scammer, when they’re asked to provide facts to back up their statements, they come back with everything, but facts. There’s a big difference between facts, conclusions, and suppositions, so far that’s all you’ve provided. When you can back up your comments, I’d be more than happy to prove your “facts” are wrong.

  37. I have gone back in documents to day one, ANON. My attorney gave me the original closing paperwork with wiring information, he was fuming, they were foreclosing on him. And been to the Delaware bankruptcy court with New Century. Interesting…

    The paperwork is a maze. Nothing can be believed.The Delaware bankruptcy court said: we gathered information about your loan from the books and records of NCMC. Means nothing…they do not know where the loans went and to whom, in other words. The attorney’s did all of it, Suzanne Uhland and Holly Etland, reorganization attorney’s. I have always questioned why the “alleged” holders of a note, that anyone can enforce is always in the name of the REMIC, when filing a claim in the court. If anyone can cash out on these notes, why bother with the formalities? The courts must think because it is allegedly in a REMIC, the note is secured and the sale can move forward on the property.

    Under FTC Rule 16, Federal Rule, a mere holder is not an innocent buyer, but is liable for any defects. If they have established a holder-in-due-course status, they are free from liability. A great distinction, by the FTC in holder and holder-in-due-course language.

    It just seems to me, if anyone can enforce anything, no matter what….what waste of time and money for everyone. In my humble opinion, a breach of contract should never bar the other party from a proper legal, equitable defense. In non-judicial states this is what we have. A non-judicial foreclosure, that is stymied judicially, but statutorily final. If I said that correctly…it sucks. I say loud and clear, the lawyers are the problem.

  38. Storm — parties can settle anytime – without even discussing the issues. No reason needed. Issues are closed. You know that. Further, your response to Ian regards actions LONG AFTER the financial crisis imploded. Worthless. We do not care what anyone is doing NOW — WITHOUT knowing what happened THEN — and how we got to NOW. That is what people want – the truth. And, it ain’t coming. But it will.

    You can give me a contract with a fancy “bow” on top –doesn’t matter – I know it was fake back then. You can give all the case law you want, I know information is missing. You can push borrowers to pay debt buyers all you want — but, that is wrong. And, you know it.

    Just can’t argue this with you anymore. You are stubborn. Thought there was SOME potential in you to recognize what really went wrong.
    I was wrong again – no potential. Stubborn – whatever business you have – you must listen to other side. If you refuse – just plain wrong and lacking in valid response. . I commend Neil for even allowing all these posts by any of us. Thank you Neil.

    Not saying all is right here – I don’t buy “rescission” — not because not valid, but because courts don’t care. My main peeve is that NO ONE here goes back to prior transactions. NO ONE. You can’t state anything until you do that. .Not you – or anyone else.

    Until I see someone do that here — I don’t buy the arguments. I not only don’t buy them — I know they are not true. .

    Good luck to you.

  39. ANON, if there was no contract, how come people win or settle with banks all of the time attacking the contract that doesn’t exist. That’s as dumb as the crap Garfield was spreading that the contract was never consummated, but you could still rescind the contract. Little nonsensical don’t you think.

  40. Ian, one of the other entities we created out of the litigation support company, besides Mortgage Fraud Examiners is Mortgage Note & Portfolio Examiners, (www.noteexaminers.com) which examines the notes you claim don’t exist or financial entities can’t prove they own or control. The GSE’s auctioned off over 18 Billion non-performing loans last year, and billions already this year.

    So, when you say the things you claim, you are in actuality parroting scammer nonsense. Furthermore, banks or Servicers prove they own or control these notes everyday in court. Therefore, factually and legally your wrong!

  41. There was NO valid contract. The “contract” did not do what it said it would do. The “contract” was breached before any borrower ever breached by a missing payment – by the OTHER side. .

    Agree – cannot go on the “note.” The note is dead — you go there — you lose. Charged off. No “note” survives charge-off.

    We live in an electronic world. Everything over the “net.” That is not good. Checks obsolete. I just happen to have before they became obsolete.

    So, maybe Neil can help people follow the money trail without the cancelled checks. It will not point to the party you think. Not for any financial crisis “securitized” loan.” Securitized for these loans is a false word — there was no securitization. Nothing valid.

  42. Storm,
    From a simple common sense viewpoint, forget the legal arguments for a moment:
    I’ve never had any problems whatsoever proving that I owned or purchased anything I owned or purchased.
    How is it that these non-bank financial institutions, with their hundreds and thousands of law firms can’t irrevocably prove that they own the note or the debt or the mortgage? Absent, of course, their backdated, forged, robosigned documents. It seems incomprehensible. The entire workforce involved in filling out mortgage apps, underwriting, securitizing, insuring , and servicing these loans sit at desks all day long and are responsible for carrying out all these functions according to SEC, IRS, UCC, FASB, FANNIE, GINNIE, FREDDIE and even with their layers of oversight, can’t get it right? Again, it seems bizarre and unthinkable. What do they pay these people ? Are they overpaid, under qualified, or what? This is a horrible pox on the face of global financial institutions-

  43. Storm. There is no legitimate help. Past 10 years have proven that. Foreclosure Moratorium or Revolution. Only solutions to the lack for Rule of Law. Simple.

  44. You seen to forget you made these very same arguments for a client 6 years ago and the court laughed at them:

    https://scholar.google.co /scholar_case?case=9915427972691491174&q=In+re+David+CONNELLY+and+Elizabeth+Connelly,+Debtors.+David+Connelly,+Plaintiff,+v.+U.S.+Bank+National+Association,+as+Trustee+for+the+Benefit+of+Harborview+Mortgage+Loan+Trust+2005-3,+and+Does+1-1000,+Defendant.&hl=en&as_sdt=10006

    “Plaintiff’s counsel submitted an affidavit from Neil Garfield (“the Garfield Affidavit”), an attorney previously uninvolved in this case but a purported expert in mortgages and securitization who reviewed the documents at issue…Plaintiff solely relies on his expert’s assertion that he possesses “knowledge of the actual intents, purposes, meanings and effect of the 1999 amendments [to the] Uniform Commercial Code…. Article 9 applies to the sale of promissory notes.” Garfield Aff. 9:9-12.

    Even if this opinion testimony by a witness who has not been qualified as an expert could be considered by the Court, it would be rejected because it directly contradicts Veal. This Court follows the decisions of the Ninth Circuit BAP, and accordingly, Plaintiff’s argument that only Article 9 applies to the transfer of the Note fails….the Plaintiff Affidavits do not contain any controverting evidence or VALID legal arguments…The Plaintiff Affidavits are a mélange of speculation and legal theories lacking foundation…”

    And how many times have you been told that, “Ownership of a note is irrelevant to the power to enforce that note.” Brown v. Dep’t of Commerce, 184 Wn.2d 509, 514, 359 P .3d 771 (2015); Bain v. Metro. Mortg. Grp., Inc.. 175 Wn.2d 83, 104, 285 P.3d 34 (2012); Truiillov. Nw. Tr. Servs., Inc., 181 Wn. App. 484, 502, 326 P.3d 768 (2014), rev’d on other grounds, 183 Wn.2d 820, 355 P.3d 1100 (2015).

    This type of misleading disinformation harms homeowners, who are looking for legitimate help!

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