Livinglies's Weblog

Here is a simple tip: if the same company is named in other similar actions and that company did not receive the proceeds of the repossession or foreclosure, then the claim and the process was faked through and through. Hint: ask for proof or even a statmeent under oath that the company named as “creditor” is inteded and expected to receive money from the successful outcome of the repo or foreclosure.

In plain language, if your car or home was sold and the money did not go to a creditor who reduced your “debt”, then someone got a windfall. 99% of all installment payment claims result in that windfall.

The fact that the injured “creditor” has not made a complaint is NOT evidence that the debt exsts, that the debt was owed to the Plaintiff or beneficiary, or that that the “servicer” was actually a “servicer” for an injured “creditor.”

MESSAGE TO EVERYONE —-  JUDGES, LAWYERS, HOEMOWNERS, CONSUMERS AND DEBT TO COLLECTORS: STOP PRETENDING YOU KNOW WHEN YOU DON’T

The fact that you receive a letter from someone does not mean that the sender was identified in the “letterhead.” Nor that the sender had any legal authority to send it. And the fact that the letter proclaims that authority adds nothing to the legal authority of the sender. I proclaim I am the king of the world right here in black and white.

It isn’t true, but I still proclaim it, and there is nothing in the rules of civil procedure that prevents me from filing a complaint in which I am identified as the King.

The current pervasive erroneous presumption is that the receipt of a letter containing false information and making false claims about everything in it is sufficient to move the burden of proof and burden of persuasion to the homeowner or consumer.

This is a game and it isn’t pretty. The game prize is a transfer of wealth — which is masqueraded as repossessions and foreclosures. The money never goes where you think it is going.

• Regardless of what company is named as “servicer,” if it is not receiving any payment that you have ever directed to them or any predecessor company that was designated as “Servicer” (most likely by a FINTECH company operating under license, and acting for an investment bank that does NOT own any indebtedness owed by you to anyone. The big “tell” is that their “Payment History” lacks any reference to disbursements. No REAL Payment History could exclude any debit or any credit and call itself complete. 
• That means the Payment History is not the loan account. It is merely a report based on data received from third parties which makes it inadmissible hearsay.
• If a company was actually performing the functions of a “servicer” as is commonly understood, it would be receiving checks or electronic deposits into an account it owned and controlled.
  • It would then process the receipt by having its own employees or outside contractors enter data based upon the original event of receiving a check or receiving electronic notice of a deposit into the servicer-owned account.
  • It would then disburse the funds to the creditor for whom it is working.
  • Evidence of the balance would show on the accounting ledger of the creditor, not the servicer. The asset receivable on the accounting ledger of the creditor would show all credits (mostly receipts of payments from servicer attributed to that transaction account with the homeowner and all debits consisting of disbursements to investors or to the operating account of the  “successor lender” (the creditor).
  • The “Payment History” is proffered by a lawyer who purportedly represents a creditor (with whom he or she has most likely never had any contact or contract) and attested to by robowitnesses selected for their lack of knowledge or training.
    • Payment History may be accurate or inaccurate — but it is NEVER COMPLETE. Except by unintended waive by the homeowner, it is virtually never admissible evidence because it relies on input by third parties who actually received and processed payments from the homeowner. This usually cannot be proven directly by the homeowner whom I always counsel not to even try.
    • • [Because to prove it, you would need information in the and of third parties who are NEVER going to give it to you. So don’t waste your time on that.
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      • Put your time into showing the court that the position refuses to answer and that, therefore, you are entitled to draw and apply inferences from the refusal to comply with those demands and the noncompliance with the rules of civil procedure.
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      • And possibly produce a legal presumption that ((a) defeat the presumptions from the fake documentation presented thus far and (b) force the opposing lawyer to call witnesses and produce documentation in which the named “creditor” affirms it owns the unpaid loan account due from the homeowner and that its records custodian certifies that he/she possesses a copy or original fo the unpaid loan account starting with its creation and reflecting all debits and credits up to the time of the hearing. ]
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    • Unless those third parties are able to testify in court that they were performing their tasks under contract or at the behest and on behalf of the company named as servicer, the data and the report are hearsay and barred from evidence upon proper and timely objection. (It doesn’t happen automatically).
      • But only those companies can produce a witness and documents in court.
      • AND none of this applies if the homeowner fails to object.
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    • Well-drafted and well-timed discovery and other strategies will quickly reveal that the “servicer” has no authority and does not perform any of the functions that are commonly ascribed to a company that is being called a “servicer” by anyone.
    • Further inquiry will reveal the Servicing Agreement which is different from the Pooling and Servicing Agreement that only governs the Master Servicer.
    • The same is true with respect to the Trust agreement allegedly governing the actions of the named Trustee in an apparent REMIC trust. Those agreements are NOT revealed except under exigent circumstances and instead, the lawyers proffer a Pooling and Servicing Agreement which always refers to future events that might happen, rather than any past events that did happen.
      • This last point is highly important because the PSA is just a mask because nobody claims to own the alleged underlying obligation(s) from the homeowner (s). In the absence of such a claim and proof thereof, nobody can be said to be an agent or servicer for a creditor. 

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PRACTICE HINT: USING THE ABOVE PARAGRAPHS, DEVELOP YOUR DISCOVERY DEMANDS. Ask only things that MUST BE TRUE if the claim is real and valid. The answer will always be, “We don’t need to answer that because we hold the note.” But they are nonetheless required to answer because if they are suing on a debt, they must show the debt (loan account) — not merely evidence of the debt (promissory note).

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Neil F Garfield, MBA, JD, 76, 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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