Opposing counsel is concealing from the court that no such party exists and is attempting to work around this fatal deficiency by “designating” a fake creditor rather than representing a real one. 

The inability of the Defendant to name a viable creditor should not translate as a burden of proof shifting to the defendant. Nor should it translate as the basis for any assumption or presumption that the plaintiff must be the creditor because the homeowner can’t name an alternative. 

in the successful effort to keep everyone remote from the “borrower” the homeowner was left without a lender or successor lender who was required to comply with federal and state lending and servicing laws. The investment bank at the center of this should not be able to have it both ways. Since they don’t have a loss they should not be allowed to claim one for the purposes of enforcement. 

Every time the  foreclosure mills file something it presents another target for you to drill home the central points. Here is my answer to someone which illustrates my point.

This is another opportunity to pound away at your central point — there is no Plaintiff present. BONY is the named trustee of a trust that either does not legally exist at all or which is irrelevant because neither BONY nor the named trust own the underlying debt in violation of UCC 9-203 as adopted by Hawaii Statutes.

They are attempting to divert the court’s attention from the fatal deficiency by interposing a new “nominee” or “designee” — SPS — who is self proclaiming itself to be an attorney in fact or agent for an entity that does not have legal title to the subject underlying debt, note or mortgage. This gambit is conducted pursuant to contract and at the insistence of BONY who does not want to be  charged with committing perjury. BONY does not need the protection of litigation immunity because it is not actually making any statements.

My answer is that yes you should attack everything they are doing and every premise that they are trying to invoke with the court. the failure to attach a power of attorney it’s just the tip of the iceberg.
Here are the things to remember about your position that you waive if you are not consistent:
  1. There is no evidence nor any allegation or exhibit demonstrating authority of anyone on behalf of the certificate holders on whose behalf the Foreclosure was filed. They have not said that the certificate holders are beneficiaries of the so-called Trust. They are not beneficiaries. They are creditors. And all claims from investors claiming a fiduciary responsibility of the named trustee to act on behalf of the certificate holders have been rebuffed, denied and dismissed. This is because certificate holders have no right, title or interest in the debt, note or mortgage or payment from any homeowner. Hence BONY has no trustee right, obligation or duty to act as to any action or inaction of any homeowner. Lawsuits brought in the name of the trustee or therefore bogus.

  2. The initial statement that SPS is an attorney in fact for anyone is issued without foundation. And it is an attempt to establish a fact without evidence or even presumption. There is no basis for the statement in the court record and hence no credence should be given to it. Note that two things are absent, not just one. In addition to the failure to attach a power of attorney there is nothing to suggest that the power, even if it was established, and even it was executed in the manner required by law in order to be effective, is still in effect. There is no representation to that effect nor as to the scope of the power nor any warranty, obviously, that the grantor had any such power to give.

  3. Their strategy is partially based upon something called litigation immunity which is a judicial doctrine that immunizes both the lawyer and client from liability for lying to the court.

  4. So they are having some guy who says he works for SPS execute the declaration on behalf of SPS who is not a party. Thus the declaration is NOT submitted on behalf of a party absent proof of authority to represent. This gets tricky because if the lawyer said it on behalf of BONY you would at least have an allegation of a party. But here we have a nonparty issue the representation and it is not a lawyer who is an officer of the court — and the party on whose behalf the declaration is submitted is not a party to the lawsuit.

  5. Yes a motion to strike is appropriate. You should be relentless.

  6. There is no representation in the declaration that BONY has authority to represent the certificate holders. There is no representation in the declaration that SPS has the authority to represent the certificate holders. Yet the action is filed on behalf of the certificate holders. Since they are not alleged to be beneficiaries, there is nothing in the court record — allegation, exhibit or evidence — that provides any foundation for considering the certificate handlers as represented by anyone and we have no way of testing that supposition without the certificates being described and the holders being named.

  7. No allegation or declaration in the court record states that anyone is familiar with the business of BONY or the trust or the certificate holders. This is a lure to get the court to assume an explanation which is never actually offered.

  8. Conclusions of law do not belong in such declarations. For example, in paragraph 3, whether he is competent to testify is not for him to say. It is for the court to hear evidence and argument as to the foundation for his testimony as a document control officer which says nothing about his actual  knowledge of actual business or business practices of SPS, BONY, the trust or the certificate holders.

  9. Note that there continues to be no representation or declaration that the records held by SPS establish the debt as owned by BONY, the trust or the certificate holders. Nor could there be. None of them ever paid value in exchange for ownership of the debt, note or mortgage.

  10. Most importantly, there is no declaration of knowledge or the basis of any knowledge as to whether the debt exists, in whose name it is owned and whether it is backed or owned by a GSE. A mere statement like the last paragraph is a conclusion of law and not a statement of fact.  Since the record is devoid of any such facts the conclusion of law should be ignored. As such the declaration is devoid of any legal declaration or assertion to comply with the COVID order. Accordingly it should be struck in its entirety.

  11. The last point I would make is that it is a denial of due process to require the homeowner to come up with a viable creditor. As Defendant in a lawsuit, the homeowner should be required to defend against actual allegations made in the complaint. Having challenged the opposing law firm and all of its related parties —- BONY, trust, certificate holders and SPS — the burden is on the Plaintiff to establish foundation before the court assumes or presumes any facts. The absence of any allegation of ownership of the underlying debt is itself an indication that no such ownership exists in these parties.

    1. The inability of the Defendant to name a viable creditor should not translate as a burden of proof shifting to the defendant. Nor should it translate as the basis for any assumption or presumption that the plaintiff must be the creditor because the homeowner can’t name an alternative.
    2. Either the plaintiff is or is not a creditor. Either the plaintiff represents or does not represent a creditor.
    3. A creditor can only be a party who has paid value for the debt if they want to foreclose.
    4. The court should not be leapfrogging away from the simple proposition that is codified by statutory law and common law for centuries: unless the claimant has paid value in exchange for a conveyance of ownership of the debt, claims of successive ownership or enforcement rights fail completely.
  12. The proof is in the pudding. Challenge the court or opposing counsel to even make the allegation that any of these parties ever was party to any transaction in which value was paid for the underlying debt in exchange for a conveyance of ownership of the underlying debt. They can’t and they won’t because no such transaction exists. Opposing counsel is concealing from the court that no such party exists and is attempting to work around this fatal deficiency by “designating” a creditor rather than representing a real one.

  13. The fact that no such party exists is not the fault or even the doing of the homeowner. It is entirely the doing of the players in a false game of securitization — in which the transaction is viewed as a loan solely for purposes of enforcing the obligation of the homeowner but not as a loan for purposes of reporting assets, liabilities, income or expenses. The role of creditor has been extinguished in this securitizations scheme for the purpose of keeping the parties “remote.”

    1. But in the successful effort to keep everyone remote from the “borrower” the homeowner was left without a lender or successor lender who was required to comply with federal and state lending and servicing laws. The investment bank at the center of this should not be able to have it both ways. Since they don’t have a loss they should not be allowed to claim one for the purposes of enforcement.

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Neil F Garfield, MBA, JD, 73, is a Florida licensed trial 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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3 Responses

  1. Neil – excellent. Brian and Java – correct. But you have to understand, after the Obama settlements – we were left to “fend for ourselves.” What was HE thinking?????

    Neil states correctly — “the homeowner was left without a lender or successor lender who was required to comply with federal and state lending and servicing laws.” This is extremely important, and should be urgent for Congress to look at. They do not look at. The laws are not adhered to, and must be rewritten for stricter compliance.

    As to “power of attorney” — have been told – too generic because does not refer to any individual loan. Title insurer – will not take that liability. Again, you are on your own.

    We have major problems.

  2. Everyone should look into these Trusts and Debt Collecting Lowlife Liar Law Firms who received PPP from Government while continuing to Fraudclose on American Homeowners for UNSECURED Debt.

    I’ve found that the Trusts and both debt collector law firms on my Fraudclosure have received $350,000 in PPP. ….. that’s EACH !!!!!

  3. Line item #3 “Their strategy is partially based upon something called litigation immunity which is a judicial doctrine that immunizes both the lawyer and client from liability for lying to the court. ” is why the legal system is such a mess and nobody , not even judges and lawyers have any problem with being branded as paid liars… A “doctrine” is not a law , it’s a fraud on the people ,, it’s a rule to help their members make money,, no different than the UAW rules or IBEW rules… the BAR needs to be dissolved and banned from the USA.

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