Livinglies's Weblog

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In performing that analysis, you start with the premise that this is a false claim using fabricated, forged documents. That means that the documents might appear to be facially valid, but a closer look might allow you even to challenge the facial validity.

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In cases involving challenges to the administration, collection, and enforcement of apparent “mortgage loan” documents, this usually means that there are facial defects on any documents that purport to transfer ownership or any other rights to the note or lien.

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And that usually involves a description of the party granting the transfer and a description of the party supposedly receiving the transfer that is insufficient to identify them in real life — even if, at first glance, that appears to be satisfied.

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A common thread is the use of MERS, which is an agent/nominee of a company that was previously identified as the lender, which was not acquired and never signed anything that released the facial rights of the note — because it never had possession of the note nor any rights to collect on the debt.

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Then there is the analysis of the substance, which is the easy part. If the document says there was $10 and other valuable consideration, it is a false representation. There was no such transaction, and since the law does not recognize the transfer of the lien without a concurrent transfer of the underlying debt, the transfer is a legal nullity.

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Unless they can produce a copy of the $10 paid (and received), they are unable or unwilling to corroborate the presumption raised from the face of the document. Accordingly, they are prohibited from introducing any evidence that the underlying obligation was legally transferred.

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If the claimant is US Bank NA, for example, you want to ask for the name of the trust officer who manages a trust account in which there is ownership of the unpaid loan account due from the homeowner. You also want to ask whether they ever paid the $10 and what other consideration they paid.

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Since they have no s much trust officer because they have no such trust account and they don’t own or even claim to own the underlying obligation alleged to be due from the homeowner (or the note or lien) they will fail or refuse to comply with your legal discovery demands.

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If there is “other consideration,” ask them what it was. And, of course, ask for the date, place, parties to the transaction and  copies of correspondence and agreements relating to the alleged transfer. If the transfer did not occur (and I am telling you it didn’t), there is no legal claim by the transferee, who has no financial stake (i.e., no standing).

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One possible avenue of inquiry is the practice and policy of the party who has been named as claimant, plaintiff, or beneficiary. Do they expect or receive any money from liquidating the property in other foreclosures? The answer is NO. But they won’t tell you that, so you need motions (plural) to compel and motions (plural) for evidentiary and economic sanctions.

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Each case has variations. But the underlying theme is the same: there is no unpaid loan account on the ledger of the designated claimant/Plaintiff/beneficiary. Therefore they had no right to even allow their name to be used as such.

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But since they were paid a fee to allow the use of their name in this scheme using false pretenses to the detriment of homeowners who reasonably believed they were getting a loan, that it had been transferred, and that the creditor owning the alleged unpaid loan account had appointed the “servicer,” homeowners responded to correspondence, notices and statements from parties that were never previously disclosed nor identified by a direct signed letter from he designated claimant/ creditor informing the alleged “debtor” of the change in servicing.

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And the “lender”, having no ownership or interest in an unpaid loan account due from the homeowner, had no power to grant rights to a company that was going to be named as a servicer even though there was never any intent that that company would engage in any servicing functions.

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But it is not by proving those statements that homeowners win the case. They win by revealing the unwillingness or inability of the attorney working for the foreclosure mill to provide corroborating statements and evidence from the designated claimant. That event serves as the foundation for seeking to bar the opposition from using any legal presumptions and even allows raising inferences or presumptions in favor of the homeowner.  

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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.
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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.