KEEP IT SIMPLE. DON’T GET LOST IN THE WEEDS

Posted on January 10, 2023 by Neil Garfield

The practice hint for all this is NOT to trace all the layers and steps. The question in the case at bar in every foreclosure is whether there is an identified claimant with a claim based on the existence of an unpaid loan account (collateral account) on its own ledgers

Some people get upset with me when I tell them that they are asking the wrong question. The reason that they are asking the wrong question is that they usually have no knowledge or experience as to the basic requirements of civil procedure. They don’t know how a claim is filed. They don’t know the requirements for filing a claim. Accordingly, they fail to challenge basic deficiencies in the filing of claims against them.

The wrong question usually has something to do with how to trace the intricacies and complexity of securitization. There is no other way to say it other than that is the wrong question – if your goal is to win the case. Every good defense trial lawyer will tell you that winning the case starts with challenging every part of the claim against their client.

From its humble beginnings in October 2007, this blog has been dedicated to two propositions: (1) the public needs to be educated as to what Wall Street did and why they did it, and (2) homeowners need to be educated about the possibilities for winning a case in which a claim of foreclosure is filed against them.

In the service of public education, I may have confused the homeowners. This is not an exercise in which you will educate the judge about the intricacies of a securitization scheme that neither of you truly understands.

Wall Street has devised a deadly scheme that invites, pro se, litigants and lawyers to get lost in the weeds, fall through trap doors, and eventually give up on the largest investment the homeowner has ever made. This scheme has only one goal: to convert the equity in the house to money in the pocket of the investment bank. They don’t care whether you owe the money. As long as they can successfully make claims against homeowners, they will do it.

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It is all layering. That means that the real parties doing the real things and collecting the revenue and profit from the scheme are layered over by a series or tranches of names that may or may not be tied to properly registered business entities that were formed in some jurisdiction.

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OTHER THAN FORECLOSURE PLEADINGS, you see this in most pleadings as, for example, US Bank, a National Association federally chartered bank” or “XYZ Bank, a Florida corporation organized and existing under the law of the state of Florida.”
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It should go without saying that in order to file any document in court, the filer must be identified. But the problem is not with the judge or the clerk. When they receive a pleading that is technically deficient, they are not empowered to do anything about it unless certain filing conditions (payment of fees, form of pleading, or notice) are absent. The system is structured to address those issues only when they are raised.
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So the problem is with homeowners who do not know the system (the rules of the game) and with lawyers who forget the rules and make quick assumptions based on skimming (rather than reading) the pleading. In doing so, they often skip the most basic fact: that the claimant (Plaintiff or beneficiary) has not really been identified.
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This feature is what enables the foreclosure mill, to act at the best of another law firm, which is answering to an investment bank through intermediaries and their legal departments. By creating a faux plaintiff or beneficiary, they have created the vehicle for the disbursement of funds, none of which goes to the named faux plaintiff or beneficiary.
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FINTECH is an essential part of this scheme. Like the investment banks, the major financial technology companies run their businesses through names and sham entities as described above. Like the investment banks, none of the companies that actually perform functions or make decisions want to enable anyone —least of all the government — to label them as servicers or lenders or successor lenders.
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The practice hint for all this is NOT to trace all the layers and steps. The question in the case at bar in every foreclosure is whether there is an identified claimant with a claim based on the existence of an unpaid loan account (collateral account) on its own ledgers (not that of a servicer). The additional question is whether that unpaid receivable account on the accounting ledger of the claimant shows payments from the homeowner and the current balance due to the claimant.
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The reason is simple. If the loan account exists on the accounting ledger of the claimant and the named claimant has been receiving the homeowner’s payments until they stopped, there is a legally enforceable claim. The amount due is clearly shown.  But if the unpaid loan account does not exist on the ledgers of the named claimant, then the foreclosure is a false claim.
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Both pro se litigants and lawyers for homeowners skirt the question and try to defeat the case by searching for technical grounds. There is no need to do that. That strategy underscores the judge’s bias that the homeowner is attempting to escape a legitimate debt owed to the claimant.
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Your job is to defeat the first premise. You don’t do this by proving that no legitimate debt is owed to the named claimant. You defeat the action by showing that the opposing lawyer is unable or unwilling to produce the unpaid loan account on the ledger of the claimant.
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Remember: if the claimant is a trustee, then the trustee must have a trust account in which there is an unpaid loan account that the trustee actively manages. If that is not true, then there is no trust. Also, remember that no investor who holds certificates issued in then the name of the so-called trust has any legal or equitable right to claim any payment from a homeowner. The investors are NOT beneficiaries of the trust.
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So you have no trustee, no trust, and no beneficiaries. Nonetheless, the trustee is usually named as the winner of the case without any knowledge of this existence or any power over its enforcement. All this is traceable to the fact that nobody aggressively and persistently pursues corroboration of the basic premise that the named claimant possesses both a claim and a history of prior receipts of payment. 
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THEY DON ‘T PURSUE IT BECAUSE THEY ARE AFRAID OF THE ANSWER — I.E., THEY THINK THE ANSWER WILL BE YES, THERE IS A CLAIM. DON’T BE AFRAID. EVEN IF THE HOMEOWNER OWES MONEY TO SOMEONE, IT IS NOT THE CLAIMANT THAT HAS BEEN NAMED IN THE FORECLOSURE ACTION. 
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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.Please Donate to Support Neil Garfield’s Efforts to Stop Foreclosure Fraud.
CLICK TO DONATENeil 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.

 

Filed under: foreclosure |

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One Response

  1. mfraud, on January 11, 2023 at 11:03 am said:

    Homeowners are not Foreclosure Lawyers. The Foreclosure Lawyers who are “seemingly” knowledgeable about foreclosures are the ones making the decisions on the defense filings.
    It’s about time that the legal system has specialized Foreclosure Lawyers and Judges who are better educated in Wallstreet sophisticated Ponzi scheme. Claiming ignorance is not an excuse when homeowners are defrauded and left destitute by a flawed system.

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