Livinglies's Weblog

It is not a business record unless it is a record of the business conducted by the company that is the source of the report. (No exceptions). 

If it is not a business record then it is hearsay. Hearsay is not admissible evidence. 

Stop thinking about whether you owe the money and start thinking about whether you can stop the lawyers from proving any claim. In most cases, you can stop them dead in their tracks. The reason is that there is no claim — but you don’t need to prove that.

There is an old expression about how figures don’t lie, but liars figure. This has probably always been true since the first day humans began counting. Somehow, it always comes as a surprise when people eventually learn about lies coming from a source whom they knew was not credible. I guess that is a matter of psychology rather than finance or law.

One of the most difficult concepts for the average person to understand is that under our current banking and financial system, it is possible to legally divert money that was paid to the order of a person or company known to the maker of the instrument or the originator of the electronic funds transfer. It is also legal to divert that money to a person or company unknown to the instrument’s maker or the originator of the Electronic Funds Transfer.

In plain language, I’m talking about homeowners making assumptions when they write a check. When they write a check paid to the order of, for example, Ocwen Loan Servicing, they are making the assumption that Ocwen is at least initially receiving the money. In other words, they assume that the check is being deposited into a depository account owned and maintained by Ocwen.

This is virtually never the case. The check is being received by a lockbox vendor unrelated to Ocwen. Ocwen has agreed to the use of its name in this transactions scheme in exchange for receiving a fee or royalty. Ocwen is a classic sham entity dressed up to look like a company that receives and disburses money paid by homeowners. And when the scheme blows up it will be Ocwen who is thrown under the bus, which is why on other pages here, I have said that Ocwen is a stupid investment.

Ocwen has no right, power, title, or interest in those payments by the homeowner and if it even tried to touch that money it would lose all its fees and go out of business. It owns no obligations, promises, debts, notes or mortgages.

The lockbox vendor has no greater right to touch the money than Ocwen. This vendor either runs automated equipment or sends the checks to another company that runs automated equipment to sort checks. In this context, that means reading the content of the checks, and automatically posting them based on algorithms devised by other companies, acting as vendors.

The posting of this data is strictly on servers owned and maintained by companies with no right, title, or interest to any of the payments. This is not the account ledger of some creditors. But the appearance and the presumption strongly imply that all of these functions are being performed under the management of Ocwen, which has absolutely no information or corroboration of any of the data or any report generated from the data.

But we have not even gotten to the point where the checks are deposited anywhere. If you think that the checks are deposited into an account owned, operated, and managed by Ocwen, you are wrong. This erroneous conclusion will lead you to an additional conclusion: the proper source for a report on the data relating to the receipt and distribution of funds is Ocwen. But anyone who has ever asked Ocwen to produce the accounting ledger of the creditor on whose behalf the lawyers are saying Ocwren is serving knows that they have never seen, nor will they ever see, any distributions to creditors.

Despite the obvious logic to anyone like me who has expertise in the field of accounting, auditing and financial analysis, very few people have asked a very simple question: why can’t Ocwen report the distributions to creditors if they are acting as a “servicer?” And the answer is because Ocwen has no idea who actually is in possession of the money, nor any idea as to the ultimate destination of the money derived from payments received from homeowners. In other words, Ocwen is NOT a servicer.

That is why the Robo witness from Ocwen is never an employee with personal knowledge or experience in connection with the receipt, deposit or distribution of money.

This can often be seen if you are able to secure a copy of a negotiated check, which shows the endorsement of a payment made by a homeowner.

The endorsement clearly shows what I have been talking about for years. Deposits are made into a clearing account that is not owned, or managed by the depository institution, except as the recipient of the money, temporarily. The money is being deposited into a clearing account managed by third parties using an intermediary clearing corporation.

The money then goes to parties who are completely unknown to the homeowner or consumer. They are unknown to the consumer because they are not entitled to the money. But they are getting it anyway. And the parties designated in writing to be the alleged claimant get nothing except fees for the use of their name.

PRACTICE HINT: Nearly everyone (courts, lawyers, judges, lawmakers, and law enforcement) assumes that a report offered as a “business record” is cloaked with a presumption that it is a “Business record” and therefore admissible into evidence even though it is hearsay (and hearsay is normally excluded from the evidence that is admitted into the court record). Evidence not admitted into the court may not under any circumstances be used as the foundation for any ruling or decision by a judge. 

It is not a business record unless it is a record of the business conducted by the company that is the source of the report. 

All this is true and corroborated because Wall Street is conducting an illegal business that looks legal. The divergence of the money trail from the paper (documentary) trail is nearly impossible for the average person to understand. We are so conditioned to believe what we read that the idea of falsehood is automatically resisted. 

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Neil F Garfield, MBA, JD, 75, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting 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 COMMENTS ON THIS BLOG AND ELSEWHERE ARE BASED ON THE ABILITY OF A HOMEOWNER TO WIN THE CASE NOT MERELY SETTLE IT. OTHER LAWYERS HAVE STRATEGIES DIRECTED AT SETTLEMENT OR MODIFICATION. 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.

But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 14 years or more. In addition, although currently rare, it can also result in your homestead being free and clear of any mortgage lien that you contested. (No Guarantee).

Yes you DO need a lawyer.
If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.

Please visit www.lendinglies.com for more information.

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