Stop complaining about banks and courts. Start writing to everyone. The game is on!
Attorney Gary Dubin has already won the case twice. Now the foreclosure attorneys are trying to resurrect the case involving the LSF9 Master Participation Trust, which has been the subject of numerous articles and radio shows. Bill Paatalo, Charles Marshall, and I, among many others,l have already completely neutered this sham entity.
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But what they are actually trying to do, is to loosen the rules instead of tightening the rules for the oncoming flood of foreclosure lawsuits in the state of Hawaii and to have that serve as an example to the rest of the country.
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I’m trying to stop them. See https://livinglies.me/2020/12/18/help-me-change-the-rules-if-you-want-a-different-outcome/
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They are staying on message. That means they are directing the court’s attention to possession of the promissory note. From that premise, they are making all of their presumptions and arguments.
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First of all possession of the note does not necessarily mean that the delivery of the note was accompanied by a grant of entitlement to enforce the note. That grant could only come from the owner of the underlying obligation or someone who legally represented the owner of the alleged underlying obligation.
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This is a point that is often missed. However, if physical delivery has occurred between a holder of the note (someone with physical possession who also has been legally granted the right to enforce) then the delivery of the note implies a grant of the right to enforce, which right is then legally presumed to exist — even if there was no such grant. The delivery of the note implies a grant of the right to enforce, which is then presumed. That is the system.
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But you will never find an allegation, assertion or exhibit that the named claimant has paid value in exchange for a conveyance of the underlying obligation. Not ever. If they said that, they would need to prove that. They can’t because it isn’t true. But right now the rules don’t require them to say that and I have announced on these pages that I intend to petition the Supreme Courts of every state to require it.
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So they are mounting a pre-emptive attack to undercut my efforts to reduce the flood of foreclosure cases that will come once the moratoriums are lifted. They should never be lifted. At this point, the regulators have all the information they need to say that the transactions with homeowners do not represent an enforceable obligation because they are merely an attempt to get back consideration paid to the homeowners for their involuntary participation in a concealed business scheme resulting in the sale of securities that had nothing to do with sale or ownership or rights to administer, collect or enforce any alleged obligation from any homeowner.
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All of this can be headed off at least two points in the process: (1) at the pleading stage where they should swear to have paid value for the underlying obligation and (2) in discovery where they should be required, as a condition precedent (H. S. §490:9-203), to present evidence of payment of value for the underlying obligation.
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So the real question is whether anyone in the current foreclosure scheme has ever paid value for the underlying obligation, if it exists, in accordance with H. S. §490:9-203. I raise the question of the existence of the obligation because my investigation, together with interviews of insiders, combined with my own experience on Wall Street has led me to the inescapable conclusion that the obligation was extinguished during the process labeled as securitization.
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As popularly understood, securitization of residential obligations is and always has been a fiction.
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There is no person or company that maintains any entry on any accounting ledger of any legal entity on which the obligation is established as a loan account receivable. Such an entry could only be made if value was paid. No value is paid for ownership of the underlying obligation under the current securities scheme; hence nobody can claim legal ownership of the obligation or any right to enforce it.
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That is the nub of their problem. And that is why they rely on false, fabricated, backdated forged, Robo signed documents. If they had paid value for the underlying obligation, they would say so, since that would eliminate virtually any arguments about the transfer or ownership of the debt, note, and/or mortgage. There would be no viable defense left to homeowners. The fact that foreclosure mills never do so is in itself corroboration of my factual and legal conclusion, to wit: that they don’t own the underlying obligation and that they are faking it.
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And that means that the collection of scheduled payments from homeowners are not being used to reduce any loan account. That is impossible because no such account exists. It also means that the proceeds from the forced sale of homestead after a court or state system allows the sale, also are not being used to reduce any loan account.
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That is why they keep talking about the note rather than the obligation. The rules governing the enforcement of a note or different than the rules governing the enforcement of a mortgage. Foreclosure mills have been informally convincing judges to ignore the current rules. Now they’re seeking to formally change it, step by step.
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First, they think they can get the Hawaii Supreme Court to do it indirectly, and then they are going to ask for a formal rule change. Ownership of the debt, note, or mortgage will be thrown out the window nullifying around 1000 years of legal doctrine and development.
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The enforcement of a note is governed by Article 3 UCC whereas enforcement of a mortgage is governed by Article 9, where there are added protections and restrictions.
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The note is only relevant if it is evidence of the underlying obligation. It is also treated as being something in the nature of a transfer of title to the underlying obligation, so when the note is transferred there is a legal presumption that the underlying obligation has also been transferred. But article 9 says that isn’t enough. It says the claimant must be the one who paid value in exchange for receiving a conveyance of ownership of the underlying obligation.
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The problem for the Foreclosure Mill and the reason that they are trying to get the Hawaii Supreme Court to change the rules, is that no such transaction ever occurred in which value was paid in exchange for receiving a conveyance of ownership of the underlying obligation. without the legal presumption of such a transaction, they are dead in the water because they cannot proffer any evidence that it ever happened.
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I would also add that LSF9 trust is no trust. it is a fictitious entity. You might analogize it to a hologram of a hologram of an empty paper bag. There are no trustee duties and hence no trustee, regardless of labels used to confound the courts, lawyers, and clients. There is no res or thing (or “loan”) owned by USB or any trust — least of all the sham monstrosity called LSF9 Master Participation Trust.
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Nobody paid me to write this. I am self-funded, supported only by donations. My mission is to stop foreclosures and other collection efforts against homeowners and consumers without proof of loss. If you want to support this effort please click on this link and donate as much as you feel you can afford.
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Neil F Garfield, MBA, JD, 73, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
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But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.
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Yes you DO need a lawyer.
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If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.
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Please visit www.lendinglies.com for more information.
DID YOU LIKE THIS ARTICLE?
Nobody paid me to write it. I am self funded, supported only by donations. My mission is to stop foreclosures and other collection efforts against homeowners and consumers without proof of loss. If you want to support this effort please click on this link and donate as much as you fee you can afford.
Please Donate to Support Neil Garfield’s Efforts to stop Foreclosure Fraud.
Click
Filed under: foreclosure | Tagged: Hawaii Supreme Court, LSF9, LSF9 Master Participation, UCC 9-203 |
Happy Healthy New Year Neil….from your loyalists at Consumer Rights Defenders….sncr.defenders@yahoo.com
Have a great 2021.