Magic Bullet? Maybe this: the foreclosure “team” are all witnesses, not claimants

The fact that the foreclosure players know — or even witnessed — the fact that you refused to make any further payments makes them a witness, not a claimant. 
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The investment banks say they are not liable as lenders for noncompliance with lending laws. OK. A good lawyer can make a powerful argument for estoppel — the investment banks cannot take one position — that it wasn’t a loan in terms of regulation of lenders   — and then that it is a loan so they can foreclose without a creditor.
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Two wrongs don’t make something right. The fact that they used a shill as the originator doesn’t mean they are allowed or should be allowed to use another shill to falsely invoke foreclosure laws and procedures. You can’t foreclose on a debt that does not exist.
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Most homeowners take out their frustration by attacking the judge or the opposing lawyer. This is a mistake on many levels.
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My concern here is that you are far too interested in two subjects that have the least probability of you achieving anything. The object of your ire is understandable. But you may be playing into the hand of the banks if you continue.
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The Judge, even if he or she is the most reprehensible person on Earth, is simply untouchable without very specific evidence that links the Judge to a corrupt scheme in which the decision of the Judge is directly tied to the scheme and where the Judge receives a  specifically identified reward for a corrupt decision. This does not exist in your case and it rarely exists in any case. So attacks on the Judge’s integrity or intelligence will provoke what they would when you attack anyone for anything. They get defensive and antagonistic — just the opposite of what you need.

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The foreclosure mill, even if they too consist of the most reprehensible human beings on the planet, is considered immune from liability for misrepresenting things in court. You don’t need to agree with this for it to be true. And railing against that fact will get you nowhere. I have tried to go after the lawyers and the result has been consistently negative — claim dismissed because of “litigation immunity.”
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So going after the Judge and the lawyers is a waste of valuable time, money and energy — something that the banks need you to do because they are sitting on a plan that claims money due when there is no money due to them, if at all. That is foreclosure.
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So if you are addressing the Judge for example, you first do what you must do whenever you are attempting to establish rapport with anyone — find common ground. You talk about obvious things about which you all agree so you are perceived as reasonable.
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THEN you move on to your argument about how this situation does not lead to the same result as the conventional case of foreclosure where an actual creditor is actually claiming a right to payment of an actual debt that is actually carried on its books as an asset receivable, which means that nonpayment did in fact cause it financial injury.
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Under our laws and just plain common sense, if you see someone rob a bank for example, then you, as a witness, have no right to sue the robber for the money they stole; true simply because they didn’t steal it from you. Why should you get any money that was stolen from the bank? And that is your point. The fact that the foreclosure players know — or even witnessed — the fact that you refused to make any further payments makes them a witness, not a claimant. 
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And yet…. if you do make the claim against the robber and the bank failed to press its own claim, you could get a judgement especially if the robber failed to raise any defenses. After all he knows he stole the money. [I am not equating homeowners with robbers. I am equitating banks with a unscrupulous version of you, making a claim to which you and  they are not entitled to receive any redress under law or common sense.]
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The question is not whether you owed the money or had any reason to pay or not to pay. The question is why are they appearing as claimants instead of witnesses in a claim by someone who actually did suffer some financial loss caused by your alleged nonpayment.
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And the question is why isn’t such a person (creditor) present in the foreclosure? Where are they? Who are they? Do they exist? If they don’t exist, was the transaction with the homeowner actually a loan transaction or was it something else entirely that was disguised as a loan transaction? 
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So you START with the premise that all legal debts should be paid to the obligee — the person to whom the debt is owed. Everyone agrees with that. And you follow with the premise, under the U.S. Constitution, that only people who have been injured can seek redress in court. You get the judge to agree that everyone agrees that if someone fails to pay a mortgage debt to someone who owns it, they should be subject to foreclosure, forced sale of their home, no matter how long it has been in the family, and evicted if they try to stay anyway.
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You talk about it as though you are in favor of foreclosure because that is where every judge starts. You don’t talk about foreclosure as though it is a new scheme that doesn’t have any support in logic or law because foreclosure has existed for centuries. It must exist because if someone parts with their money to give you a loan, they must be able to force repayment if you are unable or unwilling to make repayment. But that does not mean that a witness to nonpayment can make a claim.
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And you must take the time to study and understand the true nature of what has been really been going on. Securitization is by definition the issuance of securities. While it can be a source of financing it is just as often a means to distribute risk. The reason why thinly capitalized companies like DiTech and Quicken Loans were given hundreds of millions of dollars to sell trillions of dollars of low interest loans was not because the investment banks had come up with a new formula to squeeze profit out of low interest payments.
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It was because the return of principal and interest payments was irrelevant to their plan. The “failure” of such repayment plans was a centerpoint of the plan and they bet on it, making more and more money as each “loan” “failed.” Their plan was to sell securities. And the more securities they sold the more money they made because unlike all other securitization plans, they were not selling securities from an independent legal entity (client) that was going into business and using the proceeds to conduct or grow its business.
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Instead they were selling securities for themselves, taking the money and using as little of it as possible to cover the scheme. The money used to create the illusion of loans was a cover for the real scheme.
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The money, if any, that was sent to closing agents to close a transaction that was inaccurately described as a loan transaction was not delivered by the banks with the intent of creating a conventional loan product subject to lending laws. That would have made the investment bank a lender and they would have been named as such on the note and mortgage.
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Quite the contrary. It was designed to evade lending laws in a scheme that had has its hallmark claims by the investment banks, who were running the show, that the scheme did not subject them to lending laws and was not a loan. 
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By designating a false flag “originator” who was contractually unrelated to the investment bank and who received fees and bonuses from acting as though it was a lender, the banks now claim that they are not regulated by lending laws.
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My position is take them at their word and stop fighting them.
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OK, you are right but the only reason you are not subject to lending laws is that you did not engage in lending. So the money that arrived at the closing table was disguised conditional payment in exchange for a the homeowner’s signature on documents that could be used to fill in data on a spreadsheet.
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It was that data (not the loans) that was sold dozens of times thus relieving the investment bank from any risk of loss. The money was a fee paid to homeowners who were lured into transactions that were fraudulently disguised as loans but were in fact part of a plan to steal money and homes.
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Foreclosure is sought because it represents still more revenue and because by not foreclosing the banks would be admitting this wasn’t a loan in the first place. The money that went to homeowners or which was paid on their behalf was not a loan — it was only part of payment of a fee to which the homeowner was entitled (under quantum meruit) but knew nothing about and never had any opportunity to engage in free market negotiation.
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The reason why (a) there is no creditor and the reason why (b) all the documents are fabricated and (c) all this testimony is pre-scripted for perjury is simply that it wasn’t a loan to begin with — and nobody now is carrying the loan as an asset receivable on their books. NOBODY! The loan does not and never did exist. And that is because the money received was not a loan, it was payment for signature and implied consent to use private data for resale.
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The most basic law of contract is that there must be, at the outset, a meeting of the minds. The homeowner went into the transaction believing the false assertions that the money was a loan — instead of consideration for use of his or her private financial information and his or her signature.
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The investment bank went into the transaction through a myriad of sham conduits posing as “lenders” for exorbitant fees. The investment banks were not lending money. They were paying money so they could issue and profit from the sale of securities in “securitization.” Without that there would have been transaction at all. Refer to the “Step Transaction Doctrine” and “Single Transaction Doctrine” for support in case decisions and statutes. You’ll find multiple references on this blog from the early days (2007–2008) of this blog.
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The investment banks say they are not liable as lenders for noncompliance with lending laws. OK. A good lawyer can make a powerful argument for estoppel — the investment banks cannot take one position — that it wasn’t a loan in terms of regulation of lenders   — and then that it is a loan so they can foreclose without a creditor.
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But to get the judge to even consider such an apparently ridiculous assertion you need to demonstrate, step by step, relentlessly, that the foreclosure team has nothing. That doesn’t happen in one pleading or one hearing. It ONLY happens if you know and consistently use and apply the rules and laws relating to court procedure, discovery and trial objections.
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PRACTICE NOTES:
This argument can be made directly where the transaction was originated by the investment banks. Don’t get lost in the “warehouse lender” thickets — they were just one of many steps in a the circuitous process by which investment banks gave money to homeowners.
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But where a real loan was actually made by a real lender and then acquired by investment banks through what they called “securitization” then the argument shifts to the idea that the debt was extinguished at acquisition. this is because when all was said and done there was no creditor who was holding the debt as an asset receivable on its books.
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The fundamental point here, which can be corroborated with any knowledgeable person in the world of finance, is that neither the delivery of money to homeowners nor the acquisition of the debt after a real loan was originated was related to securitization as it had ever been done in the past.
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Securitization is simply the process of dividing up an asset into shares and selling them. This was never done in connection with these transactions. Nobody ever received a share of any loan. Securitization in this context consisted solely of the issuance of securities by the securities brokerage firm (investment bank) posing as an underwriter for a “trust name” that was merely a fictitious name of the the underwriter itself. That is not securitization. The job of the litigator is to gently and relentlessly lead the judge to conclude that this might indeed be the case and thus deny the foreclosure.
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Neil F Garfield, 73, is a Florida licensed attorney. He has received multiple academic and achievement awards in business and law. He is a former investment banker. securities analyst, and financial analyst.

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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. IN FACT, STATISTICS SHOW THAT MOST HOMEOWNERS FAIL TO PRESENT THEIR DEFENSE PROPERLY. EVEN THOSE THAT PRESENT THE DEFENSES PROPERLY LOSE, AT LEAST AT THE TRIAL COURT LEVEL, AT LEAST 1/3 OF THE TIME. IN ADDITION IT IS NOT A SHORT PROCESS IF YOU PREVAIL. 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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21 Responses

  1. David — if you saved records, or got the prior transaction record as actually INTERNALLY recorded – you would not think that. It is not about “more than one entity foreclosing.” It is about what actually happened prior to the last “transaction.” If you focus only on the last “transaction,” – you will miss what really happened. It is a major flaw to ignore. .

    Many have said – “assigned to multiple trusts.” That is wrong — not assigned to multiple trusts — LIQUIDATED – from prior trusts BEFORE anyone signed on dotted line for “Last Transaction.” And that makes it IMPOSSIBLE for borrower to have paid prior loan by the “Last Transaction.”

    Just saying.

  2. Any defense based on “not a real loan in my opinion” is destined to fail if that is all you have to go on. Semantics don’t change the result. Unless you have more than one potential foreclosing entity and can prove that, present such defenses knowing the likely judicial eye-rolling that will ensue.

  3. In the Ameriquest MDL – many were given great deals. But this is because they wanted the issues behind them as fast as possible.

    The only common entity that has data we are looking for is Black Knight. That is where the servicers got their information.

    All was just assignment of classified default debt.

    Keep asking but no one answers. What if the note was procured with fraud? Is it then still negotiable? What if the mortgage (which follows the note) was never a mortgage because the prior mortgage/note was never actually satisfied by you? . Note – many “discharges” state — “Satisfaction Cancellation or Discharge of Mortgage.” Often says in body — “paid in full.” But Satisfaction Cancellation or Discharge does not necessarily mean paid by you – nor does paid in full. Someone may have “satisfied” but not you. Does the note still remain negotiable – if the prior debt was never paid by you as it should have been?

    I have seen Discharges that state (in tiny lettering) “This Satisfaction Cancellation or Discharge impacts the lien only.” What does that mean? Not the debt? How can this be?

    Seems to me that is exactly what happened — only the lien was released- nothing was satisfied by borrower. All one got was a new debt collector. Does the note remain negotiable under those circumstances?

    Discharges were bogus all across the country.

    Thanks.

  4. Bob G…thank you…I am sure your information will be helpful and appreciated.

    My email address is: feet4fins@yahoo.com

    Thanks

  5. AI…give me an email address and i’ll send u some docs that i use that will explain everything.

  6. Bob G. I really like your writings…you make a lot of sense. I am having trouble wrapping my head around one paragraph. Would you be so kind to explain it in a bit more detail for us laymen…Mainly the “preclude” part

    “You want to see actual payment for the specific note in question. When they refuse to produce those docs or move to quash, and are successful, you then move to preclude everything that they refused to turn over to you”.

    Thank you

  7. “Article 3 is all about negotiable INSTRUMENTS, not mortgages or security interests. You subpoena the plaintiff’s accounting ledgers, canceled checks, and wire transfer receipts, and state that bulk purchases records are not acceptable”.

    In my humble opinion, this above is so important…the only consideration I have ever seen is the homeowner’s…down payment, closing costs, etc…have never seen a receipt for purchase, which is what’s needed for an assignment of rights. They just keep filing ledgers, defaults, copies of the note, DOT, etc…garbage.

    Further, I have never seen anyone other than the servicer initiate the foreclosure, using the REMIC trustee to initiate actions against anyone. I think it a mistake to claim the trust is not performing, loans are not in the trust, no one paid for the loan, etc….these arguments fall on deaf ears.

    Certainly I am no expert, but I do know what gets thrown out, quickly. And the parties before the court have never met their clients, only know what’s been handed off to them, and have no earthly idea what happened at closing and it is my non-legal opinion, you “must” go back to the very beginning.

    As far as the “mass joinder”, I have doubts. My understanding is: This is a very long, time consuming process and expensive. And I am struggling to figure out, how we can all capitalize on the same claim(s)…After doing research on them I cannot find anyone who’s been successful…Anyone here, show me the case(s) that have been worthwhile? Just asking…

  8. @AI…i can only speak to NYUCC 3-303

    Section 3–303. Taking for Value.

    A holder takes the instrument for value

    (a) to the extent that the agreed consideration has been performed or that he acquires a security interest in or a lien on the instrument otherwise than by legal process; or

    (b) when he takes the instrument in payment of or as security for an antecedent claim against any person whether or not the claim is due; or

    (c) when he gives a negotiable instrument for it or makes an irrevocable commitment to a third person.

    NY’s UCC differs in places from the national UCC. Check out your state’s UCC 3-303 along with the author’s interpretations and case cites. You argue no value paid for the note. So how did they get the note? did they steal it? did their uncle charlie gift it to them? did they find it on a park bench? did they pull it out of their ass, three knuckles deep? You get the picture.

    Article 3 is all about negotiable INSTRUMENTS, not mortgages or security interests. You subpoena the plaintiff’s accounting ledgers, cancelled checks, and wire transfer receipts, and state that bulk purchases records are not acceptable.

    They will invariably say that what you are requesting in irrelevant, immaterial, overly burdensome or not reasonably calculated to lead to admissible evidence. You then turn their own words against them with a motion in limine. They should be precluded from introducing any evidence at trial or upon a motion for summary judgment that they refused to turn over to you based upon their aforementioned arguments. it’s called judicial estoppel. but you have to serve these subpoenas before they move for summary judgment.

    You want to see actual payment for the specific note in question. When they refuse to produce those docs or move to quash, and are successful, you then move to preclude everything that they refused to turn over to you.

    The plaintiff will produce servicer affidavits with the history of loan payments, tax and insurance payments, maintenance and inspection fees, etc. That only comes into play after they prove up payment of value for the note, and thus that they are in lawful possession of the note. In every decision that I have ever seen, the courts will say that all that is necessary to entitle a plaintiff to a prima facie judgment as a matter of law is the note, the mortgage prior to initiation of suit, and proof of default. No defendant that i have ever seen raises the issue of the failure of a condition precedent, i.e., payment of value for the note. See NYUCC 3-306(c).

    My opinion, contrary to NG’s, is to stay away from arguing anything about ownership of the debt or UCC 9-203 (b). When money changed hands at the closing table, consideration was paid for the mortgage. And the mortgage goes with the note. Prove that they don’t have the note, and you prove that they don’t have the mortgage and right to foreclose the mortgage. But that doesn’t mean that there still is not a valid mortgage on the property, just that it doesn’t belong to the present plaintiff.

  9. Bob G. How does one get it through the judges head that someone must have paid value for the Note?

  10. Thanks Bob G!!!!!

  11. BTW, I was informed by an unimpeachable source that spoke with a former assistant u.s. atty, that the foreclosure mill attys are presently screwing up big time. Why? Because they are working from home and don’t have their secretaries and paralegals to assist them. So if your courts are open, now would be a good time to put the pedal to the metal.

  12. Yes – all must come together. Bob G is onto a way to look at paper trail. And, there is none. We all know that, but most don’t know how to prove it. I just ask that all of you go back. DO NOT focus on last “transaction” – that is DEADLY- and, instead go back. This is major oversight that is ignored.

    Now – I have the paper trail – did it help?? Nope. Because I am only “one.” I need more.. I need more people behind me, and a way to speak for all. Because no one person will ever do it for all across the country. It takes many. I am ready to do whatever it takes for others. It is not just about me. And I am PAYING. Spouse does not like this. All tell me – worry about yourself. NO – I answer – to spouse and friend dismay. It is not just about “me.”

    I have to question why no authority has stepped to the plate to say: Where did the money go? And each and every authority I went to said — “No thank you.” Even though my evidence is beyond approach as to “MISSING MONEY.”

    So – if there is way to trace it — go for it. BUT – all must remember there are many who are not here. There are many who do not have a clue what went on. I will not abandon them. I already lost my life. I will fight for theirs. As we all should do. This is not about profit anymore for anyone person or entity. This is not about us individually anymore. We all know that now from this virus. This is about JUSTICE – and the truth.. We will all die. From virus or not. Hold head high and move forward in unison – for all. . .

    And join forces rather than argue. We have our own “legacy” to leave. And all here have contributed. Thank you to Neil for giving us a voice that we would not otherwise find.

    Find a way to unify. THAT is critical. UNIFY. Not just for some – but for all.

    Thank You to Neil and everyone here. .

  13. Bob G. Thanks for the civility – we need more academic ‘discussions’ to help each other – your commentary was very insightful and informative – thank you.

  14. javagold…contact me via pm email

  15. Bob G. Is the real deal. I would not be so quick to blow him off , if he says something you don’t like or agree with. Don’t always agree or even understand everything he posts, but I know he is 100% legit.
    What I always keep harping on is.
    How with all these intelligent people, with life experiences in and out the courts are we as homeowners still in this Ponzi cesspool 12 years later ????? It Makes absolutely no sense.

  16. Bob G. I agree with you and have a similar A to B to C as you. Can you give me a call to go over and explain a few things to me. Still I think the homeowners should be able to easily defend against the Servicer and/or Trusts.

  17. Here ya go, Tracy…

    NYS Supreme Court, Saratoga County, 2016-966
    NYS Supreme Court, Montgomery County, 2015-688
    NYS Supreme Court, Rensselaer County, 2019-263921

    That should keep you busy for awhile.

  18. @ Bob G.

    Put your money where your mouth is , give us your case numbers to look up.

  19. @PAPERGATE…

    Neil has offered up some good stuff. But he has also disappointed on a number of occasions. I’m not arguing the same as he is. I’m arguing from the results of my own cases. Unlike Neil, I actually go into court and personally litigate. I’m not offering up “theories,” I’m offering up my very own litigation experiences. NG has offered up cases with their citations on a number of occasions when what he was saying could be verified. But some of the cases that he offered up were not what he posited them to be. I know, because I had some personal exposure to these cases in New York. And how long did it take him to finally come around and accept the SCOTUS ruling in the Jesinoski case, i.e., that the rescission had to be served no later than three years from the consummation of the loan? His argument was that there never was any “consummation” of the loan, remember? (By the way, the Jesinoskis lost their case and their house when the case was remanded back to the trial court.) Go into court sometime and argue that there never was any consummation of the loan and see where that gets you.

    I’ve said here for some time now that arguing that the plaintiff had to prove up that it purchased the mortgage, was a fool’s errand. I’ve asked NG to point out cases where arguing lack of purchase of the mortgage or the debt was a winning argument. The response was either crickets or that “those cases are the cases where the homeowner won or settled.” Ok, show me the cases, More crickets.

    What I’ve found to work is to argue nonpayment of value for THE NOTE, not the mortgage. These are UCC Article 3 cases, not contract law cases. In NY there is no requirement that one must own the DEBT in order to bring a foreclosure action. RPAPL 1302 merely requires that the plaintiff state that it is the owner and/or holder of the note or has been delegated or authorized to bring the foreclosure action by the owner and/or holder of the note. It’s the NOTE not the DEBT that matters. And what does NG keep saying? “Owning the debt is required in all 50 states.” Ok, show me the statutes or the case law that supports that argument. Crickets.

    What I’ve found that seems to work is to subpoena the plaintiff as well as the other players in the foreclosure action for the production of documents. When they object or successfully move to quash, you immediately follow that up with a motion in limine, asserting judicial estoppel. Non-party and third party witnesses that had something to do with the loan readily comply with the subpoenas because they have no dog in the fight. This is not theory, this is the real deal. I’ve got one tall building NYC atty saying that he cannot produce the note’s travel history, nor can he find anyone at his client’s that is willing to submit an affidavit opposing my motion in limine. This is Bob G’s experience and methodology at work not unproven, unworkable or discredited legal theories.

    Sorry for the length of this post, but some things just need to be said, and take a bit to say them.

  20. It is the duty of all of us to digest both sides of this issue – both Neil and Bob G’s statements can be ingredients to understanding what transpired – but neither is totally wrong or right – one has to mix up there own dish taking the ingredients from both – as both have something to contribute to the entire picture – which is unique to each and every case – I appreciate Bob G’s statements and Neil’s and actually perhaps you can’t see it but both are kind of arguing the same dish using different spices – I don’t see were Neil has not already concurred with what Bob G states – in fact – most of what Bob G states has been suggested by Neil for over a decade – you guys need to come together – and find a way to help us – not divide – this is not politics this is the lives of humans and both of you have valuable insight and knowledge but refuse to help us in our plights – shame on you. The money is had in the cases being litigated and settled – don’t nickel and dime the homeowners – go full throttle on contingency basis – take these cases that are still alive explosively into courts – quit blathering and do something – that being said I appreciate all pearls and swines of wisdom.

  21. These posts are getting more and more bizarre.

    These loans are definitely being carried on somebody’s books. In one of my cases, the loan was originated by A, then sold to Freddie, B, then sold to C. But the bankster trust then said it got the loan from Wells Fargo (Wells was the servicer for Freddie, but not after Freddie sold the loan to C.) C is merely using the bankster trust as a front, because the bankster has bank in its name. Freddie sold this loan along with more than 3000 other NPLs to C for over $650 million. This was well publicized in the financial press at the time.

    Why the man keeps saying stuff like he does in this post is one of the great mysteries of the cosmos. And I’ve had private conversations with him about this, pointing these things out to him, but he absolutely refuses to acknowledge the truth of these matters. An example is his insistence that you have to have paid value for the mortgage. This is not true. You have to have paid value for the note, not the mortgage. The mortgage is the note’s shadow. It goes where the note goes. Period. I’ve even done the debit/credit thing with him, but he refuses to even discuss it. Just look on any financial institution’s annual report or SEC financial filings. You will find mortgage loans listed as assets, but no mortgages listed as assets. Buy a mortgage loan for $100,000, you debit mortgage loans for $100,000 and credit cash for $100,000. If the loan goes into default and you sell it for $70,000, you debit cash for $70,000, credit mortgage loans for $100,000 and debit loss on sale of mortgage loans for $30,000. That’s it. The end. Fini.

    This Captain Ahab stuff is doing a lot of people a great disservice, and can’t be helping his business model. I just don’t understand it.

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