I am writing a template petition for filing in the Supreme Court of each state to change the rules and the preapproved form pleadings. The one glaring omission (because it was never necessary before) is to allege and prove loss.
Folks, I am doing this work on my own and I need help from you to get this done without going completely broke. So I implore you to send donations.
*
The current rules and preapproved form pleadings for foreclosure were created before the era of false claims of securitization. this is the principal reason that for 20 years Wall Street banks, acting through intermediaries have been getting enforcement of false claims in court. I intend to file petitions one each of the 50 states and to get involved in meeting with rules committees of each bar association. It is a massive undertaking.
*
If we get this done, the number of court filings for foreclosure will drop to nearly zero. The Wall Street brokerage firms that call themselves banks or investment banks will be required to file a different type of action entirely asking for the reformation of what is clearly an unenforceable obligation. Reformation will require an assessment of how much the homeowner should have been paid for signing documents that launched each securities scheme. The baseline for the presumed correct amount of compensation due to homeowners should be the amount paid to homeowners at closing.
*
I need your help and your contributions of ideas and money.
*
Feel free to suggest additional or amended rule changes by return email. So far I have these:
*
- In judicial states, the Plaintiff must assert and submit a sworn certification that it has suffered an economic loss proximately caused by the homeowner’s nonpayment.
- In nonjudicial states, the beneficiary must answer the homeowner’s petition for TRO with a sworn statement that it has suffered an economic loss proximately caused by the homeowner’s nonpayment.
- Every statement of loss must be solely related to losses attributed to the claimant’s prior acquisition of the underlying obligation — i.e. economic loss from failure to earn profits through securitization or enforcement shall not be a basis for asserting economic loss.
- Discovery demands related to the existence, ownership, and authority to administer the underlying obligation must be answered within the time limits required by the rules of procedure. Such responses should come from existing information and documents available before the filing of a foreclosure complaint, a substitution of trustee, or notice of default, or a notice of sale. Failure to respond shall be subject to automatic sanctions without filing a motion to compel upon an affidavit from the homeowner or counsel for the homeowner that such responses have not occurred. Sanctions shall include, but not be limited to
- A negative inference that the claimed underlying obligation does not exist.
- A negative inference that there is no loan account receivable on the ledgers of the claimant or anyone represented by the claimant.
- A negative inference that the named claimant is not the owner of the underlying obligation.
- A negative inference that the attorney who participates in the filing of the claim does not represent a real party in interest.
- A negative inference that the named servicer is not the agent for a creditor who owns the underlying obligation.
- Monetary sanctions including attorneys fees, costs, and court fines assessed against both the foreclosure attorney and the named claimant.
- Such other and further relief as the court may deem just and proper.
- If exhibits refer to Power of Attorney (POA), it must be filed with a complaint.
- If no POA is attached or recorded in public records, then the document is to be treated as not facially valid no legal presumptions apply.
- Required: Specific allegation of compliance with condition precedent stated in Article 9 §203 UCC.
- The foreclosure attorney must certify he/she is employed by Plaintiff or beneficiary.
- The name of the Plaintiff or beneficiary must be clarified and stated with specificity. Example: U.S. bank not on its own behalf but rather on behalf of certificates or certificate holders of XYZ trust does not tell us the identity of the real party in interest who is alleged to have a claim.
- Trust must be identified as to the place of origination and the jurisdiction in which it is doing business.
- If a trust is identified as the claimant the claimant must identify the date and parties in the transaction in which the subject transaction (loan) was purchased by the trustor or in which a settlor or trustor entrusted the transaction obligations to the named trustee to be administered by the trustee for the benefit of beneficiaries.
- If certificates are identified is identified as the claimant, or in any way related to the claim, then the certificates must (a) be identified and (b) an abstract of the certificate must be attached establishing a conveyance of ownership in the underlying debt from a party who is certified by counsel to have owned the underlying obligation.
- If the claimant is not asserting existence and ownership of the underlying obligation through securitization it must state that and allege the date and parties to the transaction in which the claimant purchased the underlying obligation for value.
- If the holders of certificates (i.e. mortgage-backed securities) are identified as the rue claimant, plaintiff, or beneficiary, they must be identified.
- The court must find a lack of jurisdiction over the parties and the subject matter in the event of a lack of clear identification of the party bringing the claim.
- The clearly identified claimant must execute and file a sworn acknowledgment of the allegations of the complaint or the assertion of substitution of trustee, a notice of default, a notice of sale, and auction sale.
Folks, I am doing this work on my own and I need help from you to get this done without going completely broke. So I implore you to send donations:
Please Donate to Support Neil Garfield’s Efforts to stop Foreclosure Fraud.
Click here to donate
*
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.
Filed under: foreclosure |
I will do what I can BUT, but do you think we should file Writ of Mandamus to enforce the laws that are already on the books. That is what I am trying to do … I will be in touch
, beverly ( Maine )
Neil, I think these rules (at least some) already exist. Judge KNOW about massive fraud in their Courts and intentionally support it.
Rules are made – but not applied, just like The Settlement. After the Settlement foreclosures rate must be zero since robo-signed Assignments were expressly prohibited.
What happened instead? The Settlement was a trap to create a massive flood of foreclosures based on robo-signed documents.
Here is the Amended on December 1, 2020 Rule 113 by IL Supreme Court. Will Judges follow it? I truly doubt. I think they will ignore it, as usual.
Read the Rule – all about SHALL – just like Prospectuses – means Wall Street can and will skip it again. The only thing which MUST be attached is only payment history – created by Black Knight. But identification of the source is only SHALL be provided.
Moreover, if Wall Street lawyers will fail to serve a Defendant – it is FINE, Judges are not going to change their orders. Read Appendix to the rule
It is massive cover up, by Courts.
They make Rules which APPEAR to serve the public, but in fact they merely cover for Big Banks crimes. People are again left for Judicial discretions which in 99.9% going toward Banks.
Rule 113 – Practice and Procedure in Mortgage Foreclosure Cases [Effective December 1, 2020]
(b)Supporting Documents for Complaints. In addition to the documents listed in section 15-1504 of the Illinois Mortgage Foreclosure Law ( 735 ILCS 5/15-1504 ), a copy of the note, as it currently exists, including all indorsements and allonges, SHALL (not must) be attached to the mortgage foreclosure complaint at the time of filing.
(c)Prove-up Affidavits.
(1) Requirement of Prove-up Affidavits. All plaintiffs seeking a judgment of foreclosure, under section 15-1506 of the Illinois Mortgage Foreclosure Law ( 735 ILCS 5/15-1506 ), by default or otherwise, SHALL l be required to submit an affidavit in support of the amounts due and owing under the note when they file any motion requesting a judgment of default against a mortgagor or a judgment of foreclosure.
(2) Content of Prove-up Affidavits. All affidavits submitted in support of entry of a judgment of foreclosure, default or otherwise, SHALL contain, at a minimum, the following information:
(i) The identity of the affiant and an explanation as to whether the affiant is a custodian of records or a person familiar with the business and its mode of operation. If the affiant is a person familiar with the business and its mode of operation, the affidavit SHALL explain how the affiant is familiar with the business and its mode of operation.
(ii) An identification of the books, records, and/or other documents in addition to the payment history that the affiant reviewed and/or relied upon in drafting the affidavit, specifically including records transferred from any previous lender or servicer.
The payment history MUST be attached to the affidavit in only those cases where the defendant(s) filed an appearance or responsive pleading to the complaint for foreclosure.
(iii) The identification of any computer program or computer software that the entity relies on to record and track mortgage payments. Identification of the computer program or computer software SHALL also include the source of the information, the method and time of preparation of the record to establish that the computer program produces an accurate payment history, and an explanation as to why the records should be considered “business records” within the meaning of the law.
(3) Additional Evidence. The affidavit shall contain any additional evidence, as may be necessary, in connection with the party’s right to enforce the instrument of indebtedness.
(4)Form of Prove-up Affidavits. The affidavit prepared in support of entry of a judgment of foreclosure, by default or otherwise, shall not have a stand-alone signature page if formatting allows the signature to begin on the last page of the affiant’s statements.
The affidavit prepared shall, at a minimum, be prepared by utilizing or substantially adopting the appearance and content of, the form provided in the Article II Forms Appendix.
If executed within the boundaries of Illinois, the affidavit may be signed pursuant to section 1-109 of the Illinois Code of Civil Procedure ( 735 ILCS 5/1-109 ) rather than being notarized.
(d)Defaults.
(1) Notice Required. In all mortgage foreclosure cases where the borrower is defaulted by court order, a notice of default and entry of judgment of foreclosure shall be prepared by the attorney for plaintiff and shall be mailed by the Clerk of the Circuit Court for each judicial circuit. Within two business days after the entry of default, the attorney for plaintiff shall prepare the notice in its entirety, file it with the Clerk of the Circuit Court, and provide the Clerk with one copy for mailing to each borrower address specified in the notice. Within five business days after the entry of default, the Clerk of the Circuit Court shall mail, by United States Postal Service, a copy of the notice of default and entry of judgment of foreclosure to the address(es) provided by the attorney for the plaintiff in an envelope bearing the return address of the Clerk of the Circuit Court and file proof thereof. The notice shall be mailed to the property address or the address on any appearance or other document filed by any defendant. Any notices returned by the United States Postal Service as undeliverable shall be filed in the case file maintained by the Clerk of the Circuit Court.
(2)Form of Notice. The notice of default and entry of judgment of foreclosure shall be prepared by utilizing, or substantially adopting the appearance and content of, the form provided in the Article II Forms Appendix.
(e)Effect on Judgment and Orders.
Neither the failure to send the notice required by paragraph (d)(1) nor any errors in preparing or sending the notice
shall affect the legal validity of the order of default, the judgment of foreclosure, or any other orders entered pursuant to the Illinois Mortgage Foreclosure Law ( 735 ILCS 5/15-1101et seq.)
and cannot be the basis for vacating an otherwise validly entered order.
1031frscom
Why are you paying someone to confirm what you already know. That is NOT acceptable!!!!
Thank you Neil for all the help you have provided to me and thousands of others. I will definiely send you some money as am getting ready to contact old Jay at phony Mr. Cooper on thr two remaining phony, fabricated anf robo signed modifiactions using Urban as POA for crooked old B of A!!! I ordered two investigations from Bill and was not quite what I expected but still confirming what I already know!!
Merry Christmas and Happy Holiidays. Semper Fi