How Foreclosure Mills Win by Misusing “Judicial Notice”

Posted on February 10, 2023 by Neil Garfield

Hat tip to summer chic

Judicial Notice is a rule of evidence in which the court receives a written request to accept a document into evidence as proof of the truth of the matter asserted.

In Foreclosures, the truth of the matter asserted is that there is an unpaid loan account, and the named plaintiff or beneficiary has the right to administer, collect and enforce it. If that is alleged in a form that is allowed by law, and proven in the manner allowed by law, the foreclosure will be granted. I might add, that it should be granted to the extent that there is still an unpaid balance due to the named Plaintiff or beneficiary. But in nearly all foreclosure cases, this is NOT the true fact scenario.

There are circumstances where the trial court either MUST accept a document as evidence or in which the court can accept the document as evidence as to its existence. But unless there is an objection, the court will also presume that what is contained in the document is also true.

I hasten to add that it is highly unusual for an appellate court to accept a document or record on judicial notice if it was not introduced as such in the trial court.

Here is an article that discusses judicial notice at length and presents clear definitions and uses for the request.

https://www.dailyjournal.com/mcle/1034-judicial-notice

Here are some relevant quotes from the article by attorney David M Axelrod in California.

Judicial notice is a means of bringing before a trial or appellate court “matters [that] are assumed to be indisputably true, [ so that] the introduction of evidence to prove them will not be required.”

mandatory judicial notice of “decisional, constitutional, and public statutory law,” government rules and regulations, rules of professional conduct, rules of pleading, practice and procedure, the “true signification of all English words and phrases, and … legal expressions,” and ” [f]acts and propositions of generalized knowledge that are so universally known that they cannot reasonably be the subject of dispute.”

permissive judicial notice “to the extent … not embraced within … of laws, regulations, legislative enactments, official government acts, court records, rules of court, international law, and two rather expansive catch-all categories: “[f]acts and propositions that are of such common knowledge within the territorial jurisdiction of the court that they cannot reasonably be the subject of dispute,” and “[f]acts and proposition that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.”

2. Judicial notice is limited by relevance and hearsay rules.

a. Courts will not take judicial notice of irrelevant matters.

b. A court cannot take judicial notice of the truth of hearsay statements in a document, unless an exception to the hearsay rule applies.

c. The hearsay rule also applies to preclude judicial notice of argument or comments by counsel and judges in other proceedings.

4. Judicial notice extends to a broad cat egory of facts that are “not reasonably subject to dispute and … capable of immediate and accurate determination … .”

The attorneys who work for the foreclosure mills often request judicial notice of records.

One example — out of many — is any document that shows a header at the top of the document as coming from the sec.gov website. Unwary lawyers and ignorant pro se litigants usually agree that the document is a copy of a government record.

First you should only accept a copy that is certified by the agency that issued it — not a copy, because copies can be and often are chnged digitally to reflect the desires of the lawyer who works for the foreclosure mill.

Second, without an objection as to content being hearsay or relevance, the admission of the document into evidence usually is taken as evidence of the truth of the matters asserted in the document.

And third, the document is generally subject to both a hearsay and relevance objection. For hearsay, see practically every article I have written on these pages. For relevance, only a litigator will know what I am talking about.

The document is NOT relevant unless there is a foundation (testimony admitted as evidence) that proves the existence of the unpaid loan account due to the Plaintiff or Beneficiary.

This foundation can ONLY be established by one of two methods — (1) admission from the homeowner directly or through his/her counsel or (2) by the records custodian for the named Plaintiff or Beneficiary (e.g. U.S. Bank, as trustee etc.) providing sworn testimony in support of the unpaid loan account or an acceptable report about which he has personal knowledge — not “familiarity.”

Without that foundation, there is no need to consider whether the alleged lien has been transferred, or whether the homeowner has failed to make a scheduled payment. Those issues are irrelevant in the absence of establishing the existence of an unpaid loan account with a balance due from the homeowner. Without that, there is no legally recognized claim.

Homeowners frequently lose their cases and fail to successfully defend foreclosures, simply because they admit the existence of an unpaid loan account due to the named Plaintiff or Beneficiary.

The other way they lose is by failing to object to the “payment history” offered by the attorney, working for the foreclosure Mill. This is irrelevant, and should not be admitted into evidence without first establishing the foundation that

  1. An unpaid loan account exists
  2. An unpaid loan account has a balance due that is unpaid
  3. An unpaid loan account is owed to the plaintiff or beneficiary
  4. The Plaintiff or beneficiary has appointed a company to act as “Servicer” in accordance with the tersms of a servicing agreement that is also produced by a records custodian.

The fact that a witness shows up and is willing to be sworn in as a witness does not mean anything they say is true. Their testimony that their employer is a “Servicer” is a matter of opinion and is usually not true. (see below). Unless they have personally witnessed employees of their employer collecting checks or other forms of payment, they must be requried to define “servicer.” Homeowners lose by failing to do that.

If the lawyer representing the foreclosure mill wants to use the “payment history” at all, he, or she must produce foundation testimony from a records custodian who says the are personally knowledgeable that the record is one that represents business conducted by the company that is said to be the issuer of the report.

No such witness ever appears in foreclosure cases. Instead the witness testifies that the report is issued in the ordinary course of business but it not stated by the witness that the report is a representative of transactions that were accepted, processed or forwarded by the named issuer. This sleight of hand trick is the principal reason for literally millions of false foreclosures.

No witness will say that they know that the records are an accurate depiction of transactions or business conducted in the name of “servicer.”

They won’t do that because (a) that would be perjury and (b) it isn’t true. All payments, processing and disbursements are handled by third party financial technology companies that do not work for the named “servicer.”  The “ordinary course of business” that the witness is talking about is being an actor posing as a company performing servicing functions.

Some witnesses know the misleading nature of their testimony and some don’t. So in most cases you will not get an admission, although I have succeeded at doing that in a few cases.

Mostly you get the desired effect by hamemring at “how do you know that.” Like when the witness testifies about familiarity, you can usually destroy them on cross-examination when you start asking what they mean, what they saw, what they did, and how much they were relying upon statements from people who will not testify in court (hearsay).

These witnesses are put through “training” which amounts to memorizing a script. When they say they saw or witnesses input on computers, ask them how close they were and what they actually viewed. They will never have an answer. Then comes the motion to strike the prior testimony as being without foundation and based on hearsay. (also possibly a relvance objection followed by motion to strike).

In the cases I have won, the judge typically sustained by objection granted my motion to strike the preceding testimony but left room for the case to proceeed. Then the finding of fact and conclusions of law are that the Plaintiff or Beneficiary failed to produce sufficient evidence to establish their alleged claim of right to administer any alleged unpaid loan account, or to collect money — or enforce the putative lien.

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DID YOU LIKE THIS ARTICLE?
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 DONATE

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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Click Here for Preliminary Document Review (PDR) [Basic, Plus, Premium) includes 30 minute recorded CONSULT). Includes title search under PDR Plus and PDR Premium.

Click here for Administrative Strategy ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
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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: boarding process, CORRUPTION, discovery, Discovery -Subpoena, evidence, Fabrication of documents, foreclosure defenses, foreclosure mill, hearsay, Judicial notice, jurisdiction, legal standing, prima facie case, Servicer, TRIAL OBJECTIONS, trial strategy | Tagged: | 3 Comments »

Why the CFPB Announcement is Very Important

Posted on May 2, 2022 by Neil Garfield

when the time comes that a judge enters an order or judgment containing findings of fact, for example, that the records of the designated “servicer” are not business records that are not exempt from the hearsay rule, the poop will hit the fan.

I received multiple emails from lawyers and homeowners who were confused when I posted an article about the latest CFPB announcement. Most people are not clear on why this announcement is so important.

 

I can say this — the lawyers who represent “industry actors” are sending up flares about this announcement. See the Troutman Pepper Analysis. The end result SHOULD come in two parts:

  • a restructuring of all homeowners transactions in which the homeowner agrees to accept a virtual creditor instead of a real one, a virtual loan account instead of a real one, and a set of risks that are disclosed to the consumer as required by the Federal and State Statutes governing lending practices.
  • reasonable compensation to the homeowner for being an “industry actor.”

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Obviously, Wall Street hates that idea and will fight against it. For one thing, when all cards are laid upon the table the big banks will have many aggressive competitors offering homeowners greater incentives to sign off on the new deal. For the old ones that are considered “complete”, it will require a forced settlement with the investment banks that has the effect of greatly reducing the alleged debt. Homeowners would be forced to accept the reformation of their “simple” loan transaction.

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If you read the announcement closely, you will see that the CFPB has redefined FINTECH. And they are undermining the claims made in the name of companies that are designated or labeled as “servicers.”

They are treading carefully, but it is now abundantly clear to the agency that the companies that most people believe are servicing their accounts are simply being used as fictitious names for third parties.

It will take a while for this to sink in. And there is more that the CFPB can do to reinforce this message. But when the time comes that a judge enters an order or judgment containing findings of fact, for example, that the records of the designated “servicer” are not business records that are not exempt from the hearsay rule, the poop will hit the fan.

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Those records are the only thing that the dark side has to establish the existence of an unpaid debt and a creditor. U.S. Bank, N.A. for example does not receive documents or money out of the cash flow created by transactions with homeowners. The allegation, assertion, or claim has always been that it had “constructive possession” because the company that was named as the “servicer” had received the original documents.
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White will be revealed and highlighted by the policy announced by the CFPB, is that the named servicer does not receive any money or any documents. Instead, there are fabricated documents from which one might assume or presume that money and documents had flowed to the company that was named as a “Servicer.”
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Even if such companies, like Ocwen for example, came into actual possession of an original note (unlikely because notes are routinely destroyed contemporaneously with closing), it would mean nothing because they don’t have the right to enforce. People tend to forget the second part of the lawyers seeking Foreclosure use a variety of tactics to paper over that fatal deficiency.
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Wall Street investment banks invented a circuitous route to get around this fatal defect. They use documents that are labeled as “power of attorney” or they use the pooling and servicing agreement.
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The named plaintiff or beneficiary in a foreclosure is usually named as a bank not on its own behalf but as trustee of a named trust which may or may not exist. But neither the bank nor the trust maintains any accounting records reflecting ownership of assets consisting of obligations of homeowners.
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In plain language, this means that the Foreclosure mill is making allegations, assertions and argument regarding the existence and identity of a creditor owning the alleged obligation of the homeowner, but there is no testimony, exhibit or any evidence that those assertions are true. Pressed further, the inevitable conclusion is that they are not true.
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Therefore the appointment of a company that is self-described as a “servicer” is irrelevant to any case in which a party is seeking Foreclosure. In plain language, the agent has no more power than the principal.
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The announcement by the CFPB has Biden’s fingerprints all over it. His style is very underplayed and incremental.
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You could easily read the announcement as simply the intention to examine the business of companies that are described as FINTECH. The CFPB is saying that they are not simply technology companies.
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The CFPB is saying they are servicers — this puts the CFPB in direct conflict with all claims made on behalf of companies who are named as “servicers” but who perform no servicing functions in connection with the receipt, processing and accounting, and distribution of proceeds to any creditor.
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When you think about what that might mean and what we already know, the outcome of that investigation and monitoring will be an administrative finding that the real servicer has not been disclosed, and that the companies who are named as servicers have no relevant business records, because they never received any payments nor made any distributions.
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There is no possibility that the investigation will not lead to a question about how the FINTECH servicers are working and for whom they are doing this work.
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This is a pivotal point. If the real servicers are simply contractual agents of the designated companies who are named as services, it would strengthen the position of the investment banks. But I know that the real servicers (FINTECH) are working for the investment banks, and not the bank named as trustee for a REMIC trust — nor the company named as “servicer.”
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This will all lead to the inevitable conclusion that no company is actually performing servicing in the conventional sense. None of them are collecting money from homeowners and then distributing the payments to creditors. That is because of one fatal flaw and the business plan of the Wall Street securities firms. They eliminated the role of “creditor” or “successor lender” but they kept the labels.

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==================
DID YOU LIKE THIS ARTICLE?
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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FREE REVIEW: Don’t wait, Act NOW!

CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us. You will receive an email response from Mr. Garfield  usually within 24 hours. In  the meanwhile you can order any of the following:

Click Here for Preliminary Document Review (PDR) [Basic, Plus, Premium) includes 30 minute recorded CONSULT). Includes title search under PDR Plus and PDR Premium.

Click here for Administrative Strategy ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
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CLICK HERE TO ORDER CASE ANALYSIS 
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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 12 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: boarding process, burden of pleading, BURDEN OF PROOF, CORRUPTION, discovery, Discovery -Subpoena, evidence, Fabrication of documents, foreclosure, jurisdiction, legal standing, Servicer, sham transactions | Tagged: | 2 Comments »

How Evidence Works for and Against the Consumer/Homeowner

Posted on April 7, 2022 by Neil Garfield
(Once again, because of minor medical issues I decline to do the Neil Garfield Show. I offer this instead)
It is easy to get lost in the weeds. Don’t make up your own words or definitions because your definitions have no relevance to your case. Do hold the accusing side to their words and to the legally accepted definitions of those words as contained in statutes and cases.

But above all, start at the beginning — a rookie mistake made by nearly all young litigators and pro se litigants who skip over the gold to pick up a few pieces of copper.  They exclaim “How could I lose, I have the copper!” And all the court wanted was the gold.

This post is inspired by the factual findings of several of my most generous contributors, and a hat tip to summer chic. Just because you hear a word or term don’t think you know what it means or the context in which it is issued. That is what litigation is all about. 

So first I will repeat what Aristotle said. First, define your terms. I personally know what Fiserv did as a payment processor when it served to intercept and process transactions from POS and ATM devices. I know what it did when it effectively acted as Gateway for intercept processors, including itself.

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Payment processing in all of its forms consists of three distinct nodes: receipt of money, data processing (recording the receipt and disbursement of money) and the actual disbursement of money. In that sense, Fiserv has always been a servicer.

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So it is easy to see why the investment banks trusted FiServ to handle those functions rather than anyone else. And they did. After the Tylor Bean débâcle, they would never let a company actually perform servicing functions because that would leave open the door to stealing.
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It was Black Knight who set up the lockbox arrangements (contracts) but FiServ who actually did the grunt work — receiving, accounting, and disbursing $MONEY$. Except that they didn’t really do disbursing.
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Because the act of depositing the money was a disbursement. They would take a $1,000 check from Homeowner Smith and deposit it into a bank account that was owned and controlled by XYZ Capital Finance, Inc. which was either a subsidiary of the investment bank or a conduit for outflow to offshore accounts. The named “servicer” never saw or even expected to receive that money.
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The reason why I am commenting on this is that this is extraordinarily important to the defense narrative for consumers. The ONLY party who may sue is one who has suffered financial injury “proximately” caused by the conduct of the party against whom he has filed suit.
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I have argued for 16 years that the homeowner deserves to win. But people take that as meaningless drivel from a defense lawyer who will always say that his criminal client is innocent. So try this: you can win and why should you not? If you were facing jail would you really so blithely accept the “inevitable”?
  • If the homeowner fails to make a payment that appears on some schedule and Goldman Sachs loses money because they’re betting that he would make the payment, the injury suffered by Goldman Sachs is NOT LEGALLY caused by the failure of the homeowner to make a payment. GS cannot sue the homeowner for that. That bet is the same as betting on a horserace. You can’t sue the owner for losing or throwing the race.
  • If an investor IS getting paid regardless of whether the homeowner makes a payment or not, then they can claim no injury from the “failure” to make a scheduled payment.
    • The investor who purchased a certificate is simply betting that the investment bank that issued the certificate will make the payments or cause payments to be made according to the terms of the contract that is the certificate — not according to any contract with the homeowner. The certificate parties are investor vs investment bank — not investor vs homeowner.
  • If an investor has no legal claim to receive payments from homeowners nor to administer, collect or enforce any alleged loan account the investor has no claim whatsoever against the homeowner — for the simple reason that the investor has chosen to have no relationship whatsoever with the homeowner in order to avoid liability for lending and servicing errors, mistakes or violations of statutes passed by the Federal and State governments — of which there were tens of millions of cases resulting in hundreds of billions in settlements, so far.
  • If an investment bank was counting on receiving a scheduled payment from a homeowner but had no right to receive it, it may not under current law in any U.S. jurisdiction recover money from the homeowner nor force the sale of the homeowner’s property.
  • If the investment bank had no legal right, title or interest to the underlying obligation, debt, note or mortgage (deed of trust) issued by the homeowner, then it had no right to administer, collect or enforce any payment set forth on any schedule — nor grant the authority to do so to someone else.
    • One may not grant rights that do not belong to the grantor. If I promise to give you my jet, you will not get the jet simply because I don’t have a jet. And if you know I don’t have a jet you have no claim for my failure to deliver it.
  • If a company is named as servicer then unless FiServ is doing the work for that “servicer” company (under contract), then the work done by FiServ is the work of Fiserv, and only Fiserv employees and representatives can testify about what was done and what their records contain.
    • Any report issued by them or based upon FiServ data must be established by foundation testimony from the records custodian of FiServ and not some robowitness employed by the company who was named as a servicer but was not performing the basic servicing functions.
    • Any such report and testimony of the “representative of the named “servicer” are irrelevant, lacking in competence, foundation, or materiality.
    • Such testimony is rank hearsay clearly excludable in every court in every U.S. jurisdiction — but only if a timely and proper objection is raised within the context of a coherent defense narrative.
    • This is because the only thing that a robowitness can really say is that “I received this report and my boss says it is a report from my employer who I have been told by someone (I don’t remember who) is a servicer of an unpaid loan account due from the homeowner to the Greatest Bank of All Time, N.A., not on its own behalf but on behalf of the Indecipherable Trust 200x-04 ALRT-A pass-through certificates, not on its own behalf but on behalf of the holders of those certificates, about whom I know nothing.” 
      • “I know nothing about the content of any servicing agreement between my employer and any creditor who has paid value or otherwise has a right, title, or interest in receiving money from the collection of payments, principal, or interest from homeowners. “
    • In truth, the report is entirely printed out from data received exclusively from FiServ data processing servers and storage servers which are owned, operated and maintained by FiServ which provides services (“servicing”) to and for the exclusive benefit of investment bankers who have no legal right to administer, collect or enforce any debt.
    • In truth, when the robowitness says he or she is familiar with the records of his or her employer what they really mean is that they’re familiar with a script and know absolutely nothing about the operations of their employer because their employer does not want them to know anything. (This is how many such witnesses are “blown up” on the witness stand by hundreds of lawyers across the country.)
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So for purposes of this discussion, a payment processor is a company that processes payments — i.e., something that is actually happening and something that they are a direct party to witness the actual occurrence of actual events and recording them. A “servicer” is a company that services payments from the homeowner and accounts for its actions by recording data on its own records regarding said receipt.
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If they have not done that, then they’re not a servicer in the conventional use of the word, even though the statutory definition for purposes of statutory liability to consumers is much broader. That statutory definition (augmented by regulation X) does not mean that they received any payments nor recorded any such receipt.
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Use of that statutory definition as a basis for misleading the court about the role of the company named as servicer and the origin of the information will eventually become, in fairly short order, the subject of a series of actions by state bar associations, the FTC and the CFPB. Insurers of lawyers have already inserted sufficient cover language to deny coverage for intentional misdeeds. Since the company named as “servicer” is not “servicing” any unpaid loan account receivable (which it will be revealed does not exist) they have no right to testify about it, much less the balance or record of payments.
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This is all true and but it is NOT a sign of judicial corruption to point out instances in which these particular facts are either ignored or denied by the person sitting on the bench. Their job as judges is to rule on what is brought in front of them — not what might have been brought nor what should not have been brought if there had only been an objection. The truth is that in most cases I have received I would have ruled the same way as the judge frequently accused of corruption.

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Once the homeowner has effectively admitted that there is an unpaid loan account receivable exists (without any information), admits that the third party company is a servicer (without any information), and admits that the bank named is the trustee of a trust (without any information), and admits that the trust owns an unpaid loan due from that homeowner or even argues about which trust owns the loan, what choice do I have as a judge but to rule that those facts are, for purposes of the case in front of me, the facts of the case?
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Litigation is about offense and defense. The purpose of defense is NOT to let the evidence in or to find ways to get it out. It is not to prove that the lawyers or anyone else are corrupt, evil, or belongs in jail. Once you make that allegation and can’t legally prove it, you will lose all credibility on the main point — defense. And that will cost you the opportunity to make a ton of money on wrongful foreclosure.
================
DID YOU LIKE THIS ARTICLE?
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 DONATE

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.
*
FREE REVIEW: Don’t wait, Act NOW!

CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us. You will receive an email response from Mr. Garfield  usually within 24 hours. In  the meanwhile you can order any of the following:

Click Here for Preliminary Document Review (PDR) [Basic, Plus, Premium) includes 30 minute recorded CONSULT). Includes title search under PDR Plus and PDR Premium.

Click here for Administrative Strategy ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
CLICK HERE TO ORDER CASE ANALYSIS 
*

FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. 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 12 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: boarding process, CORRUPTION, discovery, Discovery -Subpoena, evidence, expert witness, Fabrication of documents, foreclosure defenses, foreclosure mill, forensic investigation, hearsay, jurisdiction, legal standing, Presumptions, prima facie case, Servicer, sham transactions, standing, STATUTES, TRIAL OBJECTIONS, trial strategy | 1 Comment »

Western Progressive LLC is named as Trustee or even Attorney on many forms, notices and recorded documents in foreclosures. Who is this Luxembourg LLC and Why do all paths lead back to Ocwen?

Posted on February 7, 2022 by Neil Garfield

why such a company would ever be seen as a qualified party to (a) serve as a trustee on a deed of trust (b) make any claims whatsoever and (c) allow its name to be used by FINTECH service providers operating under contract with Merrill Lynch and its “successor” Bank of America.

This is especially true because there is no beneficiary who executes the Subsitution of Trustee and no beneficiary named that is qualifeid as a beneficairy — i.e., the one to whom the udnerlying obligation is owed.

And all this goes back to what I said somewhere around my firrast post on this blog: Why are lawyers not contesting the facial validity and sustnative validity of the Subsitution of trustee in nonjudical states?

In reviewing a number of documents for a pending foreclosure proceeding I noticed something interesting. The “trustee” on the deed of trust was named Western progressive LLC. In addition, on at least one form Western Progressive LLC was named as the attorney of record. This article aims to raise awareness about how the investment banks have created this company to serve as a hidden focal point in their efforts to prosecute extra-legal or illegal foreclosure claims.

Western Progressive was organized and currently exists under the law of Luxembourg, a country whose existence and economy depend largely on providing a legal platform to register names of business entities. This practice is followed in cases where the domestic U.S. operation seeks to avoid liabilities that could result from the functions that the operators intend to perform.

In performing an investigation into the ownership and overlapping interests that relate to Western Progressive, I uncovered an enormous array of persons and companies designated as members, managers, and other interested parties. The most prominent business entities were Altisource entities.

  • And the most prominent name associated with Altisource is William B. Shepro.
  • And Altisource is a captive entity or subsidiary of Ocwen Financial which is the parent company of Ocwen Loan Servicing.
  • And it turns out that in describing Shepro’s role, the PR people managed to slip in the name of Merrill Lynch, one of the failed investment banking houses that were thrown under the bus by Goldman Sachs, CitiGroup et al. That in turn leads to the conclusion that several securitizations schemes hatched by Merrill Lynch were co-ventured with Ocwen.
  • When Merrill Lynch failed it was Bank of America who picked up the pieces and then went on to pose as the owner of promises to pay issued by homeowners that were originated as “Loans.”
    • In all such cases, Merrill Lynch was involved solely for the purpose of selling securities that were advertised as mortgage-backed securities when in fact they were not securities and not mortgage-backed (which might mean that despite exemptions arising in 1998-1999, they are securities and should be regulated by the SEC).
    • In all such cases, the loan account was retired.
    • And in all claims to administer, collect to enforce the promise to pay issued by homeowners who had unknowingly become co-issuers of securities that were then sold to investors (with homeowners receiving no part of that revenue), Bank of America either appears as the claimant or the servicer — without any identification fo the creditor who currently maintains an unpaid loan account receivable on an accounting ledger reflecting the purchase of the underlying obligation for value as required by 9-203 of the UCC.
    • In all such cases the lawyers for the named claimant probably and no contact with Bank of America or Merrill Lynch. But they might have had some communication with Ocwen.
    • In all such cases, all claims of right, title, or interest in the promise to pay issued by the homeowner were based not on the existence of an unpaid loan account, but rather on the fabrication of a “Payment History” that was merely a compilation report prepared by undisclosed FINTECH companies whoa accessed data from lockbox and mail service companies who processed the receipt of payments from homeowners but who had no functions in relation to distribution to creditors — because there were no distributions to creditors. In short, the Payment History was proffered to courts as a substitute for a business record of a loan account that (a) did not exist and (b) was unrelated to the named claimant who was in all cases remote.

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This brings us back to Western Progressive and the question of why such a company could ever be seen as a qualified party to (a) serve as a trustee on a deed of trust (b) make any claims whatsoever and (c) allow its name to be used by FINTECH service providers operating under contract with Merrill Lynch and its “successor” Bank of America. Altisource describes is CEO as follows:

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William B. Shepro serves as Chairman of the Board, Chief Executive Officer of the Company. Mr. Shepro previously served as the President and Chief Operating Officer of Ocwen Solutions, a business unit of Ocwen Financial Corporation (“Ocwen”). From 2003 to 2009, he served as President of Global Servicing Solutions, LLC, a joint venture between Ocwen and Merrill Lynch. Mr. Shepro also held the positions of Senior Vice President of Ocwen Recovery Group and Senior Vice President, Director and Senior Manager of Commercial Servicing at Ocwen. He joined Ocwen in 1997. Mr. Shepro also serves on the Boards of certain of Altisource’s subsidiaries and Lenders One, a national alliance of mortgage bankers managed by a subsidiary of Altisource. He holds a Bachelor of Science in Business from Skidmore College and a Juris Doctor from the Florida State University College of Law. Mr. Shepro’s day-to-day leadership and intimate knowledge of our business and operations provide the Board of Directors with Company-specific experience and expertise. Furthermore, Mr. Shepro’s legal background and operational experience in the financial technology and residential and commercial mortgage servicing industries provide the Board of Directors with valuable strategic, industry and operational insights and expertise.

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ALTISOURCE: Altisource Portfolio Solutions S.A. (NASDAQ: ASPS) is an integrated service provider and marketplace for the real estate and mortgage industries. “Altisource is a company wrought with fraud, quantity takes precedence over quality and the ICP program is a huge reason things are so bad.” CONTACT INFO 40 Avenue Monterey 2163
Luxembourg.
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Please read the following:
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“Its primary client was its former parent, Related Party, Ocwen Financial Corporation (“Ocwen”).  Throughout the Class Period, Defendants emphasized to the market that Altisource’s revenues from its related party transactions with Ocwen—Altisource’s lifeblood—were sustainable, free of self-dealing or other conflicts, and subject to strict internal controls.  These assurances extended to related party transactions and potential conflicts of interests involving Defendant Erbey, the founder, majority shareholder, and Chairman of both companies until government regulators recently forced him to resign.  In addition, the action alleged that Defendants touted the superior quality and regulatory compliance of Altisource’s mortgage servicing technologies.  Defendants repeatedly emphasized that Altisource’s REALServicing platform, the technology backbone of Ocwen’s loan servicing business, was highly scalable and fully capable of servicing loans in an efficient, effective, and legally compliant manner.”
“the Complaint alleged that in truth–and in stark contrast to Defendants’ Class Period statements to Altisource investors–Altisource and Ocwen, at Defendant Erbey’s direction, engaged in conflicted related party transactions designed to improperly funnel money from innocent homeowners to Altisource and Erbey. Every aspect of this fraud has now been admitted by Ocwen. When the truth was finally revealed, Altisource’s common stock had lost a total of over $1 billion in market capitalization.”
“Ocwen was by far Altisource’s largest client and was contractually obligated to exclusively employ Altisource for all servicing, default and foreclosurerelated services for its troubled borrowers.”
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So the bottom line is that Ocwen performed no functions related to receipt or distributions of money collected from homeowners or from the sale of their properties, whether voluntary or involuntary (foreclosures). Altisource did everything or at least for a while it did until the functions of Altisource were redesignated to other FINTECH companies like Black Knight and Fiserv.
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And THAT means that Ocwen’s “business records” are not records of any business conducted by Ocwen. And THAT means that they are legally inadmissible as evidence of anything. They’re certainly not a legal substitute for the actual loan account but they’re used to pursue false claims because there I no loan account but the Wall Street banks still want to collect on what they euphemistically refer to as virtual loan accounts. 
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In reviewing more than 25,00 cases over the past 16 years, I have not discovered a single instance in which the loan account was ever produced to the homeowner or a court. This is true despite requests, court orders, and statutory requirements. Before the current era, no foreclosure was ever permitted without such a document. Instead, now the courts are bending over backward to allow the substitution of legally inadmissible evidence.
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And this then brings us to the question of whether Western Progressive can and should be the target of an investigation, lawsuits, and criminal investigations. It is a foreign corporation with no discernable functions except the distribution of salaries, bonuses, and payments fueled by the investment banks who are operating under the names of multiple registered corporate or business entities including but not limited to falsely labeled servicers who are falsely named as the source of data.
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Both Western and Ocwen share a single attribute — they provide a legal platform to provide the foundation for the fictitious claims involved in communication, collection, and enforcement with homeowners. Neither one has any appreciable assets that could be recovered in the event of a large judgment for violation of Federal statutes, State statutes, and common law duties. In short, they’re both controlled vehicles for investment banks.
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All of that means that Western Progressive, like Ocwen, is shoved forward as a name that is used to raise presumptions of activities and functions that they do not perform. And that means that the real claimant, the investment bank operating through the name of the presumed “servicer” is actually the company that is named as substitute trustee in millions of foreclosures.
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The utter disregard for the intended impartiality of trustees on deeds of trust has resulted in a moral hazard of the highest order. The executives of Western Progressive, Altisource and Ocwen knew and expressly consented to the uses of their companies’ names. They had actual knowledge of the intent to protect the investment banks from any apparent obligation to comply with lending or servicing laws.
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In my opinion, all of the above is true and serves as the basis to challenge title and to pursue disgorgement of all money received from the sale of securities, the sale of homes, and the receipt of homeowner payments.
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In my opinion, all foreclosures that were conducted, completed, or started using the foundation of substitution of a trustee in the same of Western Progressive were false and fraudulent.
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In my opinion, the substitution of trustee was fabricated and false and filed without any beneficiary executing the document or approving of the execution of the document. TItle, therefore, in my opinion, never changed.
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  • The substitution was void, so was the notice of default and notice of sale.
  • The sale was void for all of those reasons and the title remains in name of the original owner of the home.
  • The title is not subject to the state of limitations and needs no renewal.
  • But the reversal of a legally accepted procedural action takes proactive, persistent action by homeowners.
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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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CLICK HERE TO ORDER ADMINISTRATIVE STRATEGY, ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
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CLICK HERE TO ORDER TERA – not necessary if you order PDR PREMIUM.
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CLICK HERE TO REVIEW AND ORDER PRELIMINARY DOCUMENT REVIEW (PDR) (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. 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 12 years or more.
  • 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: bankruptcy, boarding process, BURDEN OF PROOF, CORRUPTION, discovery, Discovery -Subpoena, evidence, Fabrication of documents, forensic investigation, investment banking, MBS TRUSTEE, Servicer, TRIAL OBJECTIONS | 1 Comment »

THREADING THE NEEDLE: IT IS WHAT THEY DON’T SAY THAT REVEALS THE TRUTH — AND YOU CAN USE IT!

Posted on January 5, 2022 by Neil Garfield

So talk about splitting hairs — here is a statement from a company that is claimed by third parties to be the servicer of a “loan.” Note that the parties making the claim do NOT swear that PennyMac is servicing claims to administer, collect and enforce for them, but rather for some unknown creditor or some other entity that does NOT make such a claim. Think about that. Here is the quote:

PennyMac, who, as the loan servicer, is authorized to accept payments for your loan.

And here is the analysis of that statement:

  • PennyMac IS authorized, although not by anyone who is legally entitled to act as grantor in such authorization.

  • And it is authorized to accept payments — but it doesn’t. And nobody who does “accept” payments is working for PennyMac. PennyMac is not a FINTECH, Lockbox, or processing center for payments made by homeowners nor the recipient or processing centers for the money proceeds from foreclosure sales or sales of REO property. 

  • And notice that it says “accept” payments rather than “receive” payments. I can be authorized to accept your payment but unless I actually receive it my authorization, even if valid, is irrelevant and lacks foundation.

    • And so if you make a payment and direct it to me at an address that is a mail processing center that sends the payments for processing at a lockbox or FINTECH company, the accounting for those receipts can only be performed by people who in their ordinary course of business actually collect and account for receipts.

      • The “Payment History” proffered in the name of such a “servicer” for the payment is also irrelevant and lacks foundation. They’re merely producing a report generated by someone else.

      • In addition, the Payment History proffered in court is not an acceptable or legally admissible substitute for the ledger showing the loan account receivable (see below).

      • This Payment History from such a servicer is neither acceptable evidence or admissible evidence of payments nor of the balance of the loan account receivable owed to a specific creditor who paid value for the underlying obligation. 

    • The Payment History could only be admitted into evidence if there was live testimony from someone with personal knowledge of the ordinary course of business of the company that entered the data and reproduced the report — keeping in mind that this does not include the company named or claimed to be the “servicer.”

    • But the failure to make such objections and challenges invariably results in admission of the report into evidence, which in turn, establishes the existence of the loan account receivable, the right of the servicer to account for the payment history, establish the default etc. 

  • PennyMac IS a “loan servicer” only because the regulations were meant to include anyone who participates in the administration, collection of enforcement of claims arising from alleged loan accounts. But if the loan accounts don’t exist, then they are not a loan servicer under any construction of the term. 

  • And notice they don’t actually say what would ordinarily be said by either the loan officer as a lender or the officer in charge of administration, collection or enforcement of a loan at a servicer who receives, processes accounts for and disburses funds to creditors, i.e., 

    • “You have a loan account receivable arising from your transaction on the __ day of ___, 20__. XYZ has acquired all rights, title and interest to the underlying obligation. the legal debt, note and recorded mortgage.

    • By law, you owe XYZ that money.

    • We have been appointed to serve the interests of XYZ and empowered by XYZ to administer, collect and enforce the right to collect payments of interest and principal as provided by your promissory note and the recorded mortgage.

    • A copy of that authorization, signed by an authorized officer of XYZ is attached or has already been provided to you.

    • Attached is a copy of the XYZ ledger on which your loan account appears showing the balance, payments, and disbursements from inception to the present.”

    • YOU WILL HEVER, EVER SEE SUCH A LETTER OR STATEMENT NOW — BUT THIS WORDING IS TAKEN FROM HUNDREDS OF EXEMPLARS DATING BACK TO THE EARLY 1990s AND EARLIER. 

    • Why don’t they say that — especially when they used to say it and that wording was literally invented by the financial industry? The answer is very simple., they don’t say because they can’t say it without exposing themselves to criminal and civil liability.
    • But they can imply it or have their lawyers argue false factual and legal premises in court with immunity. What is the fix for this gigantic scam? It would be the government doing its job which after over 20 years is a lost cause.
    • That means that homeowners need to invest their time, money, and energy into defeating these false foreclosure claims. And that generally means that groups of homeowners must come up with a way to finance the challenge for each individual homeowner. 
DID YOU LIKE THIS ARTICLE?
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.
NOTE: It is unlikely that anyone without legal training will understand the legal significance of the points raised in this article. The obvious answer is to show it to your lawyer.
Please Donate to Support Neil Garfield’s Efforts to Stop Foreclosure Fraud.

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Neil F Garfield, MBA, JD, 74, 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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CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us. You will receive an email response from Mr. Garfield  usually within 24 hours. In  the meanwhile you can order any of the following:
CLICK HERE TO ORDER ADMINISTRATIVE STRATEGY, ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
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CLICK HERE TO ORDER TERA – not necessary if you order PDR PREMIUM.
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CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
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CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR) (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. 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 12 years or more.
  • 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: boarding process, burden of persuasion, burden of pleading, BURDEN OF PROOF, CORRUPTION, discovery, Discovery -Subpoena, evidence, Fabrication of documents, foreclosure mill, forensic investigation, Motions, Presumptions, prima facie case, Servicer, sham transactions, TRIAL OBJECTIONS | 3 Comments »

Here is How Wall Street Smoke and Mirrors Works

Posted on December 1, 2021 by Neil Garfield

The idea that some company bearing the label of “servicer” is performing financial functions and accounting on behalf of an investor, a trust, a trustee is completely false from end to end. Such companies do nothing and were never intended to do anything except act as a buffer, in name only, to prevent liability attaching to investment banks who had entered the lending marketplace without any intent to enter the business of lending money for profit. But when the homeowner admits that such labels and narratives are true, the law of the case becomes the false narrative and labels. 

As a matter of policy, prudence, and required risk management, none of the tier 1 companies are permitted to actually perform any financial service or accounting. They do not receive or disburse funds. Therefore they do not originate any data input regarding the receipt or disbursement of money.

First of all, you have to remember that the primary goal of investment banks is to hide the existence and function of one or more investment banks including but not limited to the “book runner.”. All of the entities that perform any financials service or accounting are entities that are contractually bound to intermediaries for the investment banks. (see Tier 2 below).

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All of the entities whose names are used as smokescreens (I.e., placeholders or buffers) are not contractually bound to anyone and are the intended targets to be thrown under the bus when there is an unavoidable accusation of fabricated documents using false information used solely for the purpose of squeezing money or property out of homeowners. (see 50 state settlement for example). (see Tier 1 below).

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But none of the companies performing financial services or accounting has any contractual relationship with the homeowner or the company that has been claimed to be the “servicer.” So the first erroneous assumption is that these functions, even if prepared by third-party vendors, are performed at the behest of the companies that are claimed to be “servicers.” Such companies are in charge of nothing and perform no functions.

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Other than a few people on Wall Street, it simply has not occurred to most people that these functions are performed contractually and solely for the benefit of investment banks on Wall Street — who are never named in litigation by either side even though everything that has occurred has been under the sole discretion and instructions of the investment bank. And the investment bank contrary to popular belief in the false national narrative, are working only for themselves — not investors, trusts, or trustees. Their holy grail has been achieved — the sale of securities without ever having to give up the proceeds to the named issuer. But it is patently illegal and probably criminal.

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The idea that some company bearing the label of “servicer” is performing financial functions and accounting on behalf of an investor, a trust, a trustee is completely false from end to end. Such companies do nothing and were never intended to do anything except act as a buffer, in name only, to prevent liability attaching to investment banks who had entered the lending marketplace without any intent to enter the business of lending money for profit. But when the homeowner admits that such labels and narratives are true, the law of the case becomes the false narrative and labels.

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From the perspective of the investment banks, the money paid out under the label of “loans” was simply a cost of doing business — the business bang the sale of securities. The investment banks had no interest, no risk of loss or any other stake in the outcome of any transaction that was falsely labeled as a loan transaction.

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The banks covered up their activities by increasing apparent complexity in a fairly simple transaction — i.e., one in which someone would debit their cash or other asset account and credit the loan account receivable of a borrower. Such accounting never took place in most instances because none of the parties involved in the falsely labeled “origination” was anything other than a placeholder name through which money could be delivered to a closing agent for disbursement to or on behalf of the homeowner or consumer.
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The investment banks have used the placeholder name function at many levels each of which appears to have facial validity but lacks any connection to transactions in the real world. have spread out the functions.
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There are two categories. The first category (Tier 1) is the one that you see. This is the one that reveals the name of a company that is claimed to have some sort of representative authority. In the real world, it has no such authority and it performs no function. The second category (Tier 2) consists of companies that actually perform functions, but whose existence is concealed from the homeowner and from the Court. As well as almost all of the securitization infrastructures, tier one should be tier 2.
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As a matter of policy, prudence, and required risk management, none of the tier 1 companies are permitted to actually perform any financial service or accounting. They do not receive or disburse funds. Therefore they do not originate any data input regarding the receipt or disbursement of money.
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The tier 2 companies that actually perform the services are contractually bound to the intermediaries for the investment banks. The tier 1 companies who allow their names to be used on the letterhead of correspondence and notices (and payment history reports) have no contractual relationship with the investment banks who are avoiding vicarious liability for the mini intended and unintended violations of lending and servicing laws.
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Companies like CoreLogic, CoreLogic tax, Black Knight, FiServ, etc. are tier 2 businesses whose only allegiance, contractually and equitably, is to the investment banks. They are not controlled in any way by any tier 1 companies (including but not limited to companies claim to be a “servicer”). But they are controlled by the investment banks, who direct every action performed by every tier 2 company including law firms.
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Tier 1 companies are merely names acting as placeholders for the investment banks who distance themselves from the business of collecting and communicating with homeowners and other consumers who consider themselves to be borrowers, even if they are no longer borrowers because their loan account receivable has been retired through the receipt of money by the originators —- all of them. Yes, it is like organized crime but in all honesty, so is almost every capitalist enterprise. The structure though is not what creates the crime, it is the intent and effect that makes it illegal either in violation of civil or criminal laws.
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The purpose of all tier 1 companies is to create a mirage. The resulting illusion is filled in by individual presumptions that are not based on fact but rather based on apparent facial validity derived from fabricated documents containing false information — i.e., reporting or memorializing transactions that never occurred.
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Real transactions are concealed and underreported even to regulatory agencies. Such transactions are never disclosed to consumers and homeowners. In this world of illusions, apparent fascial validity has been Weaponized to create the erroneous presumption that a trust account exists, under the supervision of a trust officer, for a brand-name bank.
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The further presumption is that within that trust account is a loan Account receivable due from a particular homeowner. But in reality, there is no trust account, there is no trust officer, and there is no loan account receivable.
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Because of the complexity required to conceal the illegality of the securitization scheme, no information is offered to any homeowner or regulator that would alert them to the fact that fictitious labels are being attached to nonexistent accounts. And most homeowners and regulators lack the resources to investigate the actual money trail.
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So they rely upon the paper trail instead and that is the residence of moral hazard. You can say anything on paper, and it tends to be believed even if it would be met with skepticism if spoken aloud. The investment banks completely understand this dynamic and they have weaponized it to the point where they have established a national narrative with false labels resulting in the collection of illicit profits damaging homeowners and all taxpayers supporting federal, state, and local government.
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DID YOU LIKE THIS ARTICLE?
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 DONATE

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Neil F Garfield, MBA, JD, 74, 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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FREE REVIEW: Don’t wait, Act NOW!

CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us. In  the meanwhile you can order any of the following:
CLICK HERE TO ORDER ADMINISTRATIVE STRATEGY, ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
*
CLICK HERE TO ORDER TERA – not necessary if you order PDR PREMIUM.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
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CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR) (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. 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 12 years or more.
  • 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: boarding process, BURDEN OF PROOF, CORRUPTION, discovery, Discovery -Subpoena, evidence, Fabrication of documents, foreclosure, foreclosure defenses, foreclosure mill, investment banking, originator, Presumptions, prima facie case, Servicer, TRIAL OBJECTIONS | 1 Comment »

How Likely Is It That a Homeowner Will Win a Foreclosure Case?

Posted on November 30, 2021 by Neil Garfield
The answer to this question depends upon the homeowner — not the judge.
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If the homeowner rigorously, aggressively and persistently seeks enforcement of the rules of civil procedure, the rules of discovery, the rules of evidence and enforcement of court orders, the chances of quite good that the homeowner role reach a very favorable result.
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If the homeowner attempts to make a claim or state and affirmative defense that requires proof of malfeasance by the opposition (or anyone else), probability of failure is extremely high.
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The general consensus has accepted the proposition set forth in the national narrative promulgated by investment banks. Therefore nearly everyone — including the homeowner and the attorney for the homeowner at times — has accepted the label of “loan” as being the equivalent of an existing loan account receivable which obviously is enforceable at law and in equity (foreclosure of the mortgage).
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Having adopted the narrative and fictitious Terminology of Wall Street, everyone has also therefore accepted the labels of “servicer,” “trust,” “trustee,” etc. This in turn has resulted in the acceptance of the production of a “payment history” report in lieu of producing a copy of the loan account receivable. The question of whether or not the lawyers are representing a client who owns a loan account receivable that is due from you is avoided.
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The above summary is the backdrop for all litigation involving Foreclosure in both judicial and non-judicial states. It is so widely accepted by nearly everyone involved, and so often admitted (tacitly or directly) that judges usually regard defenses and claims from homeowners as being technical nuisances instead of a direct attempt at stopping fraud. That is their initial impression and there is nothing that can change that initial impression.
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But after their initial impression, the litigation begins and the judge is constrained to follow the rules of court.
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All of the cases that I have won outright or settled on terms that people might think are ridiculously beneficial to the homeowner has involved a very skeptical judge who change their mind during the course of litigation. I will also say that as a general rule, the older and more experienced judges will tend to be even more biased at the beginning of the case but will strictly apply the rules of court during litigation.
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The key to winning or losing is in the rules of procedure, the rules of discovery, and the rules of evidence. The defense strategy that tends to work most of the time is one in which the lawyer representing the homeowner continually attacks the ability of the foreclosure lawyer to produce any corroborating evidence for the conclusions that are alleged by the foreclosure complaint or presumed from the filing of apparently facially valid documents to support a non-judicial foreclosure.
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As it turns out, an aggressive and persistent strategy based on demonstrating the unwillingness or inability of opposing counsel to comply with the rules of procedure, rules of discovery, the rules of evidence and court will usually successfully reframe the case from the initial erroneous first impression of “bank versus deadbeat homeowner” to “judge versus recalcitrant foreclosure attorney.” When that happens, and it usually does, the judge always wins and the result is favorable to the homeowner.
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The way that lawyers and pro se litigants have undermined the strategy, is by attempting to go further than simply defeating the action against them. They attempt to prove fraud or other malfeasance, despite their inability to produce any evidence that would prove the required legal elements of such claims. In doing so, they shift the burden of proof from the foreclosure attorney to themselves. And they lift the burden of proof on their own claims from simply more likely than not to clear and convincing.
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Since we already know that nobody from the “Dark Side” is going to give you any information that will prove or corroborate anything you want to say, it is a fool’s errand to allege a claim or affirmative defense and that you will never be able to prove. My experience is that these cases can be defeated most of the time if the homeowner sticks with the goal of simply defeating the claim. But as soon as they step out of that lane, they are headed for failure.

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And of course, in order to pursue a successful strategy, you at least need to pretend that you believe that there is no loan account receivable and therefore nothing to enforce. And if you’ve gotten to the point where I am, you will be completely confident that that is true. I have reviewed over 10,000 cases. There has not been one instance in which a loan account receivable was ever produced.
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The substitution of a payment history report generated from third-party vendors has never been a legal substitute for producing the loan account receivable, and an acknowledgment or attestation from an officer of the named claimant that the loan account receivable belongs to (is owned by) that named claimant. In all the cases that I have reviewed no such acknowledgment or attestation has ever been made. All of those functions are produced under the name of a company that is claimed to be a “servicer” but which does nothing in connection with the receipt and disbursement of any money.
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PRACTICE NOTE FOR LAWYERS: The successful argument for legal standing at the commencement of the case is NOT proof of legal standing. And the argument regarding Article 3 (UCC) enforcement of negotiable instruments is not a substitute for normal legal standing required by Article 9-203 for enforcement of security instruments (mortgages and deeds of trust).
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The object is to show that the foreclosure mill is unwilling or unable to produce the loan account receivable or any acknowledgment or attestation or testimony from an officer of the named claimant. You can show that because there is no loan account receivable and there is no officer willing to perjure themselves. there are no trust accounts managed by REMIC trustees, and even if there were, they would not, do not, and could not contain a loan account receivable due from the homeowner.
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The naming of a company as a “servicer” does not mean it handles receipts, disbursements or accounting for any movement of money. Such a company will be presented as the authorized representative of the named claimant but the named claimant never appears in court. Once the foreclosure mill fails or refuses to comply with discovery demands, their claim that the “servicer” is authorized to act for the claimant also fails because it is not relevant. If the named claimant has no ability to support a claim, then the agency of the “servicer” is irrelevant. The claim lacks foundation.
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Neil F Garfield, MBA, JD, 74, 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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CLICK HERE TO ORDER ADMINISTRATIVE STRATEGY, ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
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CLICK HERE TO ORDER TERA – not necessary if you order PDR PREMIUM.
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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. 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 12 years or more.
  • 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: boarding process, burden of persuasion, burden of pleading, BURDEN OF PROOF, CORRUPTION, evidence, Fabrication of documents, foreclosure defenses, forensic investigation, investment banking, legal standing, Pleading, Presumptions, prima facie case, Servicer, sham transactions, TRIAL OBJECTIONS | 2 Comments »

Why You Need to Understand the Truth and How to Use It to Successfully Defend Foreclosure Cases

Posted on November 20, 2020 by Neil Garfield

Please Donate to Support Neil Garfield’s Efforts to stop Foreclosure Fraud.

Please Donate to Support Neil Garfield’s Efforts to stop Foreclosure Fraud.

You don’t need to believe me. You don’t need proof that what I am saying is true. You have every right in every court to file demands for discovery relating to the existence and ownership of the debt. Ask any lawyer or any judge. They will affirm this to be true. And ask any accountant. The debt exists only if someone maintains a current ledger entry on their own books of record that shows they paid value for the underlying obligation, along with having supporting documentation (proof of payment). If they didn’t pay value then they don’t own it — under both accounting rules and the laws of every jurisdiction.

Everyone is complaining about why homeowners are not winning more cases. They all seem to have their own specific grievance theory about lawyers, judges, regulators etc. But the real problem is the homeowners themselves. They simply won’t accept the fact that a claim filed against them has absolutely no merit.

So the first thing they do is admit the existence of the debt, the existence of delinquency, the existence of default, and then they go on to explain why they should be let out of what they have already admitted was a legitimate debt that is unpaid  — contrary to the agreement they signed. After losing the case, homeowners claim bias and any other theory that distracts from their own personal responsibility for their loss.

No judge is a mind reader or an investment banker. Acting as though a judge should be a mind reader or an investment banker is foolishness.

If the claim filed against you arises as a result of a claim of securitization of a debt, the claim is false. There was no securitization of debt. There was no sale of any debt. There is no authority arising from the securitization of debt. The document submitted by a self-proclaimed servicer both irrelevant and inadmissible as evidence in court — but only if a timely objection is raised. That is how the system works.

The same thing holds true when the named claimant is not a trustee. In most cases, the transaction was still the reference point for securitization, to wit: the issuance and sale of securities. And those securities were not conveyances of any right, title, or interest in any debt, note, or mortgage. So the fact that the securities were bets on data contained in discretionary reports issued by the” investment bank” posing as “Master Servicer” does not mean the debt was sold. It wasn’t. Like the supposed “REMIC Trustee” the named claimant has no loss and in fact has no interest in the outcome of litigation — except as a profiteer.

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This is reminiscent of the repeated reports to the SEC of wrongdoing by Bernie Madoff. The reports were regarded as too absurd to be true on the scale that was reported — until 10 years later when Madoff himself admitted all charges and was sent to prison. Just because a lie is a whopper doesn’t mean that it can be turned into truth. Eventually, financial historians are going to see “Securitization” for what it is — a PONZI scheme. Nothing was securitized.

It is understandable that Homeowners are a bit put off by the apparent complexity of securitization. But it becomes much simpler when you realize that securitization never occurred. The securities that were issued and sold to investors did not represent ownership of any debt, note, mortgage, or payment.

It is also understandable that homeowners are not well-versed in court procedure, the burden of proof, or the rules of evidence. And it is even understandable for homeowners to assume that their debt still exists. We can’t expect homeowners to understand what has been completely concealed from them.

Because of limited judicial resources, the courts were forced into running roughshod over the rights of homeowners — solely because of the assumption that the debt existed and that somehow the money proceeds of the forced sale would find its way into the hands of investors who had directly or indirectly purchased the transactions that were labeled as loans.

  • Removing the assumption of an existing debt the homeowner who properly and timely files a denial of claims and or who files affirmative defenses should be permitted to rebut the legal presumptions arising from apparently facially valid documentation and to contest the actual facial validity of such instruments.
  • Removing the assumption of an existing debt requires the trial court to treat discovery demands seriously rather than as an annoyance.
  • Removing the assumption of an existing debt requires the trial court to strictly apply existing law instead of inventing new law.

If a lawyer meets a prospective client who admits liability, the lawyer is going to look for other means to protect the client from enforcement. If a lawyer admits liability on behalf of his client the judge is going to consider technical factors in the enforcement of the liability. But the judge is not going to deny enforcement on the basis that the liability does not exist. If the homeowner and the lawyer failed to bring that issue up, then it is not an issue that will be litigated. Those are the rules. That is not bias.

There is nothing more basic to a foreclosure action than the existence and ownership of the underlying obligation. Homeowners and their lawyers have made the mistake of trying to prove the true facts of securitization or lack thereof. But all they really need to do is challenge the presumptions raised by the allegations and exhibits of the claimant — during the process of discovery. They fear this path because they fear the claim is real.

The problem is that neither homeowners nor their attorneys are going to do that. Instead, they are going to look for a magic bullet in the form of technical deficiencies of the allegations or exhibits. This almost guarantees that the judge will order foreclosure, a sale will occur and the homeowner will be evicted. How would you feel if somebody owed YOU money and they got out of it by poiinting out some minor technical deficiency?

You don’t need to believe me. You don’t need proof that what I am saying is true. You have every right in every court to file demands for discovery relating to the existence and ownership of the debt. Ask any lawyer or any judge. They will affirm this to be true. And ask any accountant. The debt exists only if someone maintains a current ledger entry on their own books of record that shows they paid value for the underlying obligation, along with having supporting documentation (proof of payment). If they didn’t pay value then they don’t own it — under both accounting rules and the laws of every jurisdiction.

Please Donate to Support Neil Garfield’s Efforts to stop Foreclosure Fraud.

Please Donate to Support Neil Garfield’s Efforts to stop Foreclosure Fraud.

But the burden is on the homeowner to raise the objections. The burden is on the homeowner to deny the allegations and challenge the exhibits. If the homeowner fails to timely raise the issues in proper form, then the debt does exist for purposes of litigating the case — even if there is no debt in real life. Courtrooms are not real life. All courtroom decisions are legal fictions in which the judge’s finding of fact is final even if it differs from the real world. If it were otherwise, courts could not work and no disputes would be resolved — ever. 

Your expectation that lawyers and judges should know about all of this is misplaced. The only people who would know this information for a fact are people like me. I was an actual practicing investment banker and I was physically present in the room when the seeds of the current scheme of securitization were discussed way back in 1970.

When I later read that someone figured out a way to separate the debt from a “mortgage-backed security” I understood completely what that meant and how it would be misconstrued by homeowners, lawyers, judges, and regulators. The Wall Street banks gambled that the sheer magnitude of their lie would overcome any objections. They were right.

But they don’t have to be right for future litigation. And that is why I am filing amicus briefs and drafting petitions for rule changes in all 50 states. Eventually, courts are going to have that moment when they realize what is going on. That day will be moved closer by you acting on what I say here on these pages.

Please Donate to Support Neil Garfield’s Efforts to stop Foreclosure Fraud.

Please Donate to Support Neil Garfield’s Efforts to stop Foreclosure Fraud.

*
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.
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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. 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 12 years or more.
  • 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: boarding process, burden of persuasion, burden of pleading, BURDEN OF PROOF, CORRUPTION, Eviction, evidence, Fabrication of documents, foreclosure defenses, investment banking, jurisdiction, legal standing, Pleading, Presumptions, prima facie case, Servicer, sham transactions | 4 Comments »

The elephant in the living room: Is the “free house” a windfall or simply just compensation for being drafted into a concealed securities scheme?

Posted on November 11, 2020 by Neil Garfield

SHOW ME THE LEDGER! NO, NOT THE ONE FROM THE SELF PROCLAIMED SERVICER. SHOW ME THE ONE FROM THE COMPANY CLAIMING THEY PAID VALUE FOR THE DEBT.

I have been beating around the bush too long. In my opinion, rejection of a claim for foreclosure from securitization players is not the equivalent of any windfall for any homeowner. It is merely an acknowledgment of payment for services rendered by the homeowner. The reverse is true: allowing foreclosure to securitization players results in a windfall payment to those players without any corresponding reduction of any “loan” account receivable.

If you send a QWR or DVL out, you are sending it to someone who has no relation to your loan, thus allowing the other players to claim plausible deniability for all the lies you are about to be told. The response is gibberish and in total is the equivalent of “because we said so.”

I might also add that they never assert that the loan account is owned by anyone despite their protestations to the contrary. They often do not identify the originator (like “America’s Whole Lender”) as a legal person or business entity. If it is not a legal person it cannot be a legal person who is the principal in an agency relationship with MERS. People forget that “nominee” means agent.

In lay language, the question is “who do I ask?” What is the name of the company that claims ownership of my underlying obligation resulting from payment of value?
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My opinion is that they don’t say it because nobody does. And nobody says it because there is no person or business entity that has any confirmable entry on its ledgers showing payment of value in exchange for a conveyance of ownership of the underlying obligation.
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This is not a technical objection. It is completely and utterly substantive. Without payment for the obligation, nobody can claim a loss. They can’t claim a loss because there is no loss. Without a loss there can be no remedy. 
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The securitization players offered securities to investors, the proceeds of such sales going to the investment bank who in turn distributed the money to the other players including “borrowers.” Without those securities, there would have been no transaction. But as a result of issuing and selling those securities — and then derivatives of those securities—  the revenue from the sale of securities was in excess of 12  times the amount of the homeowner transaction. {Don’t ask me to justify that — ask ANYONE in the industry if that is not true}
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Nobody wanted to be a lender who would then be accountable for violations of lending laws.  So they made sure there was no lender. We are all going down the same rabbit hole when we refer to the homeowner transaction as a loan. It was a payment to get the homeowner to execute documents that were labeled as loan documents — a payment that had to be returned, leaving the homeowner with no compensation for his/her role in generating so much revenue.
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In fact when you factor in payments labeled as “interest” the homeowner receives negative compensation. Viewed from that perspective the homeowner is paying for his own execution.
****

Everyone is shying away from the elephant in the living room. What is so bad about the homeowner getting a “free house” in the context of a larger scheme that produced so much revenue to everyone except the homeowner?

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If it was a loan, then there would be a lender with a risk of loss and who was accountable for compliance with lending laws — particularly those requiring disclosure of compensation and revenue arising from the execution of the documents.
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If it was a loan, then there would be a lender who was a stakeholder — i.e., someone who retained risk of loss and intent for the transaction to be performed and successful.
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Instead, homeowners got no lender and not even a clue as to who they did business with nor the true extent of revenue and profits generated from what was in reality, simply a securities scheme with no substantive characteristics of a loan.
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Instead, the homeowner was left with a nonlender who had no role in underwriting the viability of the loan contrary to the express requirements of TILA. In fact, and again contrary to the express requirements of TILA, the homeowner was left with nobody who had any stake in the viability or performance of any loan.
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To add insult to injury, the securitization players had substantial financial incentives to steer borrowers into nonviable loans against which the players bet would fail — this producing even more profits.
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So tell me again why this is a loan. And tell me why the compensation that the securitization players chose to give to the homeowner should not be retained by the homeowner. And while you are doing that, tell me why the consideration for drafting the homeowner into a concealed securitization scheme should not be expanded.
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But don’t tell me you can foreclose and evict a homeowner just to get back the only consideration he/she ever received from you. That’s not capitalism. It is a fraud.
PRACTICE HINT: At the very start be confrontative. When opposing counsel says “Your Honor, this is a standard foreclosure,” you should interrupt and object saying that the face of the complaint or notice shows that this is not a standard foreclosure and it may not be a foreclosure at all if they can’t produce a creditor. Drill in the defense narrative wherever you can create the opportunity. 
Remember that you are not just looking for securitization language. You are also looking for securitization players. If the foreclosure is on behalf of Citi, PennyMac or BofA, those are securitization players. Just because they don’t refer to securitization does not mean that they are holding a ledger showing their payment for the debt and maintenance of a current asset account against which they are claiming a loss. If you don’t understand what that means, go talk to a CPA.
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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.
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CLICK HERE ORDER ADMINISTRATIVE STRATEGY, ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation.Suggestions for discovery demands are included.
*
CLICK HERE TO ORDER TERA – not necessary if you order PDR PREMIUM.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
*
CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR) (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. 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 12 years or more.
  • 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: boarding process, CORRUPTION, discovery, Discovery -Subpoena, Eviction, evidence, Fabrication of documents, investment banking, jurisdiction, legal standing, securities fraud, Servicer, sham transactions | 4 Comments »

Freddie Mac Changes Its Language from “Loan Portfolio” to “Reference Pool”

Posted on November 9, 2020 by Neil Garfield

see https://www.streetinsider.com/Globe+Newswire/Freddie+Mac+Credit+Protects+%24167.3+Billion+of+Single-Family+Mortgages+in+Third+Quarter/17554183.html

People still don’t believe it. Loans were not securitized but are being treated as though they were securitized. “Securitization” means selling off an asset in pro rata shares to investors who get a piece of paper telling them that they own X% of the asset.

Ask anyone who knows (or read it yourself) — all of the securitization documents are “forward statements” meaning they are referencing a future event. And none of the securitization documents convey any ownership, equitable or legal interest in any debt, note, or mortgage. And the future event never occurs. That’s the point for the Wall Street bankers.

Since they never retain any interest in any debt, note or mortgage they face no exposure to any risk of loss, and no liability for violations of federal and state statutes as issuers or lenders even though they are both. When they foreclose through various intermediaries (usually a bank appearing solely as trustee of a nonexistent trust) they still receive the net money proceeds but they have no loan account receivable to credit when they receive those sales proceeds.

ACCOUNTING NOTE: There is a difference between a loan account and a loan account receivable. A “loan account” can mean anything or nothing at all. But a loan account receivable is ane try on a general ledger that is reported on the issued balance sheet of a business entity showing that the company paid value (debt cash, credit assets) in exchange for a conveyance of ownership of the underlying debt (from one who legally owns it) — all as required by Article 9 §203 UCC which has been one existence, in one form or another, for centuries.

Without such a transaction there is nothing to report.

And without a conveyance of ownership of the asset receivable, there is no legally allowable entry on the general ledger claiming ownership of the debt, note or mortgage.

The securitization of loans never happened. This means that all claims of rights or authority to administer, collect, or enforce any debt, note or mortgage are completely and utterly false if they are based upon securitization of the subject loan.

But the Wall Street PR machine has convinced virtually everyone including “borrowers” that the loans were securitized. And there are hundreds of appellate decisions referring to loan portfolios that do not exist but are treated as real nonetheless.

So watch for how bulletins and announcements are phrased. In order to avoid indictments and civil liability for outright lying, they are now referring to loan portfolios as “reference pools,” which is exactly what I have been saying for years.

Yes, there were securities created, issued, sold, and traded. And in fact, the indenture did indeed have references to groups of data derived from announcements by investment banks referring to the performance of those loans. But that is not securitization of loans. It is the securitization of proprietary data relating to the performance of the loans — not the ownership of loans (which is what is required to speak of securitization of loans).

SO WHERE DID THE LOAN GO? This could be a reasonable basis fr dispute — i.e., whether the loan was extinguished or simply became inchoate (sleeping) pending a reformation of the transaction such that a designated virtual creditor was replaced with a real one — as required by law.

DOESN’T THAT GIVE AN UNFAIR WINDFALL TO HOMEOWNERS WHO RENEGED ON A PROMISE TO PAY? Again subject to dispute, but my answer is absolutely not.

In fact, it reveals exactly the opposite.

The “lender” (securities brokerage firm doing business as an “investment bank”) is actually an issuer of securities that cannot be sold without the cooperative signature of the homeowner together with detailed personal information of the homeowner.

The resulting sale of securities produces a windfall to the investment bank equal on average to 12 times the principal paid, thus far, to the homeowner.

The homeowner is required under the disclosed part of the deal to repay the principal paid to him — which means that the homeowner did not receive any consideration for the concealed part of the securitization deal.

In addition, the homeowner has unknowingly taken on the risk that the investment bank has dumped. As a putative “lender” (not really) its sole business reason for the transaction is the issuance of securities without which it would not near lending to individual homeowners.

The more securities the merrier and the larger the windfall to the investment bank— all without giving any conveyance of any debt, note or mortgage. (You never see the investment bank as the grantee on any recorded conveyance).

Since the investment bank has no risk of loss, it does not care about the future performance of the alleged “loan transaction.” This one fact removes the basic balance between any person who is characterized as a borrower and any person who is characterized as a lender.

According to federal and state lending laws and basic common sense, the lender, as a sophisticated financial enterprise, is charged legally with determining the viability of the loan because it has a risk of loss.

Without that risk of loss, the only interest remaining is getting the “borrower” to submit personal data and to have the homeowner sign documentation promising to pay back the consideration (plus interest!) received for the concealed, involuntary participation in the securitization scheme.

In contract law, this is a classic example of a failure of an element of enforceable contract — no meeting of the minds. Borrower intent + NO lending intent = no contract. 

The homeowner is deprived of the opportunity to receive the benefit of bargaining for a share of the securitization scheme or not to participate at all.

Therefore my conclusion is that (a) the homeowner owes nothing because of contract failure and (b)is entitled to quantum meruit under quasi-contract law to reasonable compensation for the concealed securitization scheme that could never have existed but for the homeowner’s signature and personal data.

What does this mean? It means that NONE of the investors who bought or traded swaps, certificates, or other securities ever acquired any interest in any loan. None of them acquired the ownership of any debt, note, or mortgage. None of them ever acquired the legal right to administer, collect, or enforce any debt, note, or mortgage. And it means that all documents suggesting the contrary are fabricated and false.

Thus under such circumstances no servicer, trustee, trust or investor Including Fannie and Freddie) possesses any right, title or interest in administration, collection or enforcement of any loan.

DUMP THE RISK: The theory behind securitization is perfectly sound, legal, moral, and politically expedient. It is intended to attract investment by reducing risk. But Wall Street took this one step further. They completely eliminated the risk. In order to do that they had to completely eliminate the loan account from the general ledger of any company that was involved in the securitization process. The loan account was a cover for fraud. It doesn’t exist.

Nobody loses money when a homeowner stops paying. And when a homeowner does pay they are contributing to bonuses and largely untaxed profit of investment banks — and that is an apt description of what happens to the money when a homestead is forced into sale. NO entry is ever made decreasing the amount of a receivable because there is no receivable.

And that is the part that is completely “counterintuitive” to nearly everyone. It is also the reason that Foreclosure Mills consistently Stonewall any attempts to get discovery of information that would obviously lead to admissible evidence in court.

There are thousands of Foreclosure cases that have been pushed to the back burner for 10 years or more (I have one that is 12 years old) as a result of lawyers and pro se litigants experimenting with this concept.

The concept is simple. The claim brought against the homeowner either directly or indirectly asserts that the designated claimant exists in the real world and possesses a claim against the Homeowner. The homeowner says OK, tell me how you exist and how you acquired a claim against me. The Foreclosure Mail refuses to answer because it knows that the truth will kill the claim. 

BUT by sheer force of will and perseverance and infinitely deep pockets, the investment bank continues litigating a claim that has absolutely no merit. And in most cases, because our government regulators are sleeping the cost of defending the baseless claims falls onto the homeowner who lacks the resources of time, money and energy to preserve the largest asset he/she owns.

*
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.
*

FREE REVIEW: Don’t wait, Act NOW!

CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us. In the meanwhile you can order any of the following:
*
CLICK HERE ORDER ADMINISTRATIVE STRATEGY, ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
*
CLICK HERE TO ORDER TERA – not necessary if you order PDR PREMIUM.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
*
CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR) (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
*
FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. 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 12 years or more.
  • 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: boarding process, BURDEN OF PROOF, discovery, Discovery -Subpoena, Fabrication of documents, Free House, Presumptions, prima facie case, sham transactions, standing, STATUTES | 3 Comments »

Maine Decision Presents New Challenges for Hearsay objections on Fabricated Records

Posted on November 2, 2020 by Neil Garfield

see Bank of N.Y. Mellon v. Shone, 2020 Me. 122 (Me. 2020)

the record keeping shortcomings of some members of a particular business sector should not drive our interpretation of a rule of evidence that applies to the records of all businesses and, more broadly, as Rule 803(6)(B) indicates, to the records of any “organization, occupation, or calling.” If the records kept by mortgage lenders or loan servicers in particular are categorically unreliable, more stringent proof requirements might be appropriate. [e.s.] But there is no good reason to require in every case testimony based on personal knowledge of the practices of the business that created a record when the business that received the record can meet the integration, verification, and reliance criteria of the integrated records approach.

Bank of N.Y. Mellon v. Shone, 2020 Me. 122, 17-18 (Me. 2020)

So the bottom line is that in the musical chairs game currently labeled as “servicing” it is common to have a company claim to be the servicer for an unidentified or unconfirmed creditor. That company in turn sends a witness to court who knows absolutely nothing about the case. But the witness is trained to say that the payment history report  tendered to the court as evidence constitute normal business records that have a presumption of credibility. Note that it is never said, asserted, alleged or sworn that the subject records establish the debt as an asset on the books of any creditor who paid value for the underlying obligation (see Article 9 §203 UCC).

This decision from Maine says that the records MIGT be admissible even if they include “integration” of data from a previous source. And foreclosure mill lawyers are going to be quick to point to this decision and to use it to steamroll over some hapless homeowner to get a foreclosure sale for profit instead of restitution for an unpaid debt that was liquidated contemporaneously with origination of the transaction.

But the court took special pains to point out that they suspected that some players were not as credible as others. The court pointed out specifically that so-called lenders and servicers might have record keeping shortcomings.  Indeed they do since they don’t actually create, maintain or report on data or transactions and instead merely maintain call centers at which people are hired to access screens that are managed by third party vendors working for the investment banks.

So this is the same as any other document that might make it into evidence. It is cloaked with a presumption but you can rebut that presumption by asking pointed questions and taking the deposition of witnesses who are said to have knowledge about transactions that nobody in their company actually handled or participated. You can do this administratively through a QWR or DVL or you could do it in discovery which is more easily enforceable. But answers to QWR and DVL often conflict with prior correspondence and notices, which is helpful.

REMEMBER THIS: THE BOARDING PROCESS DOES NOT GENERALLY EXIST. THE ASSERTION OF A BOARDING PROCESS IS MEANT TO INVOKE THE INTEGRATED RECORD-KEEPING EXCEPTION TO THE HEARSAY RULE. IN OTHER WORDS WHILE THEY COULD NEVER HAVE SUCCEEDED IN GETTING THE ORIGINAL RECORDS INTO EVIDENCE BECAUSE OF LACK OF COMPETENCE AND LACK OF FOUNDATION THEY CAN NOW OFFER INTO EVIDENCE THE RECORDS OF A NEW “SERVICER” WHO TESTIFIES THROUGH AN IGNORANT WITNESS THAT THE RECORDS WERE INTEGRATED FROM A PREVIOUS SOURCE, INSPECTED AND VERIFIED, AS WELL AS RELIED UPON BY THE CURRENT COMPANY IN ITS BUSINESS OPERATIONS. 

*
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.
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CLICK HERE TO ORDER TERA – not necessary if you order PDR PREMIUM.
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CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR) (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. 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 12 years or more.
  • Yes you DO need a lawyer.
  • If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.
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Please visit www.lendinglies.com for more information.

Filed under: boarding process, CORRUPTION, discovery, Discovery -Subpoena, evidence, expert witness, Fabrication of documents, forensic investigation, Presumptions, prima facie case, Servicer, sham transactions, TRIAL OBJECTIONS, trial strategy | 2 Comments »

Foreclosures in Securitization World: deny everything they have to say and then pursue discovery — but in discovery you focus on the issues that are central to every foreclosure — status and ownership of the debt. 

Posted on October 14, 2020 by Neil Garfield

The danger is in the labels.

I have some devoted followers and readers who have been great contributors — doing research on the real action and dynamics between the homeowner on the one hand and all the intermediaries and people of interest on the other hand. One of the things recently raised was the discovery of who is listed as having paid tax or insurance or other expenses. The danger is in the labels.

The simple basic truth is that the banks are using a shell game that is based entirely on the false use of labels. So when we see something in writing we tend to assume it is probably true. Without that the entire securitizations scheme would have fallen apart before it began.

If you write a check to me for plumbing repairs, that label on the check “Plumbing repairs” does not mean in actuality that you expect me to do plumbing work nor that I will deliver such work. After all I’m a lawyer, not plumber. But if we both agreed to have the check made out in that manner it would be because we were concealing the true nature of the transaction. That still doesn’t mean that any plumbing work is ever getting done.

And, believe it or not, that is not illegal. In fact, just writing the check with that label on it raises an inference or legal presumption that this was payment for plumbing work. So when you walk into court the judge is already assuming that this is a dispute over plumbing work when in fact the agreement between us was for legal work. If some third party comes into the picture and either sues or defends a claim from either of us, they must respectfully challenge the label — “plumbing repairs” even though we all know that no plumbing work was done or intended.

You need to understand that there is a difference between the label on an account and ownership of it. And there is even a difference between ownership and the authority to make deposits and withdrawals.

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It is entirely possible to direct payments to “Ocwen” for example. The payments are forwarded to an intermediary who in turn forwards the payment (if electronic) or forwards the check to the Black Knight/CoreLogic system we have been talking about. With Check 21 and other practices this is all done in seconds.
*

So your check to Ocwen gets deposited into an account labelled “ocwen” which is owned by Black Knight who has a contract with the investment bank in which it gives the investment bank or its agent full authority to make deposits and withdraw money.

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Once again the misdirection comes from knee jerk reaction to seeing a label. We are culturally conditioned to assume the label means something when it doesn’t. In the above example, if the transaction was real, the check would be made out and deposited into the account of Morgan Securities, for example. The homeowner/”borrower” of course has no clue about any of this and simply assumes he is paying his mortgage payment on an existing loan account owned by some “investor”. All of that could alternatively be labeled as “Plumbing Repairs.”
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But Morgan doesn’t want to receive the money directly because there is no business or legal reason it should be received by Morgan. Morgan holds no receivable from the homeowner/”borrower.” It is simply not entitled to receive that money even though it is happening every hour.
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All such payments are pure revenue that is untaxed because for tax purposes it is labelled as either return of loan or return of capital or it is labeled as off balance sheet and doesn’t show up at all. The real money transfers are recorded in a jurisdiction that asserts taxing authority and then waives all tax. Bermuda was popular when I last looked at this.
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For foreclosure defense you don’t need to prove any of that. You just need to know and believe it. Because then you can ask questions in discovery that you know they can never answer without admitting to tax fraud, theft, and other crimes.
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It is their LACK of answers that is the useful tool in this litigation and the law is very clear — if you persist in demanding discovery, motions to compel, motions for sanctions and motions and in limine you will most likely win the case hands down without any right of the foreclosure mill to refile.
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The banks want you to focus on how wrong the banks were in their behavior so you will make allegations that you will never be able to prove. The real defense is like Karate Kid (“no be there”). Just deny everything they have to say and then pursue discovery — but in discovery you focus on the issues that are central to every foreclosure — status and ownership of the debt.
*
Neil F Garfield, MBA, JD, 73, is a Florida licensed trial 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.
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CLICK HERE ORDER ADMINISTRATIVE STRATEGY, ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation.Suggestions for discovery demands are included.
*
CLICK HERE TO ORDER TERA – not necessary if you order PDR PREMIUM.
*
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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. 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 12 years or more.
  • 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: boarding process, burden of persuasion, burden of pleading, BURDEN OF PROOF, CORRUPTION, discovery, Discovery -Subpoena, evidence, Fabrication of documents, foreclosure defenses, investment banking, Pleading, Presumptions, prima facie case, Servicer, sham transactions | Leave a comment »

More Details on VendorScape, CoreLogic and Black Knight

Posted on October 13, 2020 by Neil Garfield

Hat tip to “Summer chione”

So it is apparent that the banks are responding to discoveries about how orders are transmitted to lawyers, “servicers”, realtors etc.. While it is all the same playbook, they merely change the name of the characters. So internally the name VendorScape might still be used but externally, to the public, they are showing different names and even showing multiple names for the same “service”.

But is always the same, to wit: a central repository of data that has been robotically entered to support misrepresentations of investment banks that massage the data, control the reports, and initiate administration, collection and enforcement under the letterhead of “subservicers” who have almost nothing to do and are merely being kept alive to throw under the bus when this scheme explodes.

For those familiar with the game of Chess, think of the following entities as all being pawns whose existence is to provide a barrier to the encroachment of government or borrowers in litigation — and who can and will be sacrificed when the game explodes.

  1. Foreclosure law firms (“mills”)
  2. “Servicers”
  3. Trustee of REMIC Trust
  4. Trustee on Deed of trust
  5. MERS
  6. Companies that provide “default services”
  7. Realtors
  8. Property  Managers
  9. REMIC  trusts: remember that back in early 2000’s, the same trusts that are being named as claimants today were denied as having any existence or relevance. It was only after failure of naming a servicer or MERS that they fell back on naming the non functional trustee of a nonexistent trust as the claimant.
  10. Every other company that is visible to the investors and homeowners.

And keep in mind that the claims of a “boarding Process” or detailed audit of accounts when the name of one subservicer is changed to something else are totally and completely bogus. There is no transfer much less boarding of accounts. the fabricated accounts are always maintained at the central repository.

The argument over “business records” is sleight of hand distraction. There are no business records. Go do your research. You will see that nothing the banks are producing are qualified business records, muchless exceptions to the hearsay rule. 

It is or at least was universal custom and practice that before accepting  an engagement, lawyers, servicers and realtors needed to have an agreement in writing with their employer. In the wholly unique area of foreclosures, sales, REO and remittances this practice has been turned on its head.

As I have repeatedly said on these pages, lawyers in a foreclosure mill have no idea who hired them. They don’t know the identity of their client. They will and do say that their client is some “subservicer” (e.g. Ocwen), they file lawsuits and documents proclaiming their representation of some bank (e.g. Deutsche) with whom they have (a) no contact and (b) no retainer Agreement.

This is because all that Deutsche agreed to was the use of its name to give the foreclosure an institutional flavor. It is labelled as a trustee but it possesses zero powers of any party that could be legally described as a trustee. It has no fiduciary duty to any beneficiaries nor any right to even inquire about the business affairs of the trust — which we know now (with certainty) do not even exist.

So there is no reason for the foreclosure mill to have an agreement with Deutsche because (a) Deutsche has not agreed to be a real party in interest and (b) Deutsche has no ownership, right, title or interest in any loan — either on tis own behalf or as representative of either a nonexistent or inchoate (sleeping) trust with no assets or business or the owners of non certificated certificates (i.e., digital only). Indeed the relationship between Deutsche and the holders of certificates is that of creditor (the investors) and debtor (Deutsche acting as the business name only of an investment bank who issued the certificates).

So the lawyers in the foreclosure mill are misrepresenting its authority to represent. In fact it has no authority to represent the “trustee” bank.

So the banks have come up with a circular argument that is still erroneously used and believed in court: that because the subservicer (e.g. Ocwen) is the nominal client — albeit without any contact prior to the electronic instructions received by the foreclosure mill — and because the subservicer claims to be acting for either the trustee, teht rust or the holders of certificates, that eh lawyers can claim to be representing the bank, as trustee. In a word, that is not true.

So the foreclosure mill is falsely claiming that its client is the named “trustee” who has no power for a “trust” which has no assets or business on behalf of certificate holders who own no right, title or interest to any payments, debt, note or mortgage executed by any “borrower.”

Instructions from a third party with no right, title or interest that the lawyer should claim  representation rights for yet another party who has no knowledge, right, title or interest is a legal nullity. That means that, in the legal world, (like transfer of mortgage  rights without transfer for the underlying debt), there is nothing that any court is legally able to recognize and any attempt to do so would be ultra vires once the facts are known to the court.

The trick is to present it to the court in such a manner that it is unavoidable. And the best way to do that is through aggressive discovery strategies. the second best way is through the use of well planned timely objections at trial.

All of this is done, contrary to law and prior custom and practice to cover up the fact that all such foreclosures are for profit ventures.

That is, the goal is not paydown of any loan account, because no such account exists on the books of any creditor.

And that is hiding the fact that the origination or acquisition of the loan was completed with zero intent for anyone to become a lender or creditor and therefore subject to rules, regulations and laws governing lending and servicing practices.

They didn’t need to be a lender or creditor because they were being paid in full from the sales of securities and thus writing off the homeowner transaction. Bottom Line: There was no lending intent by the originator or acquirer of the loan. When the cycle was complete, the investment bank owned nothing but still controlled everything.

And the way they controlled everything was by hiring intermediaries who would have plausible deniability because they were using images and records that were automatically generated and produced based upon algorithms written by human hands — programs designed to facilitate foreclosure rather than report the truth.

So let’s be clear. Here is the process. The lawyer, realtor or subservicer knows nothing about the loan until it is time to foreclose. All activity that is conducted under its name is initiated by CoreLogic using the VendorScape system.

So when a lawyer, for example, comes to work, he sits down in front of a computer and gets a message that he doesn’t know came from CoreLogic under the direction of Black KNight who is acting under the strict control of the investment banks. There are no paper documents. The message on the screen says initiate foreclosure work on John Jones in the name of Deutsche Bank as trustee for the CWABS Trust 2006-1 on behalf of the certificateholders of CWABS Trust 2006-1 series pass through certificates.

Contrary to the rules of law and ethical and disciplinary rules governing lawyers, the lawyer does no due diligence to discover the nature his agreement with the naemd claimant, no research on whether the claim is valid, and requires no confirmation ledgers showing establishment of ownership of the debt and financial loss arising from cessation of payments. He/she sends notice of delinquency, notice of default and initiates foreclosure without ever seeing or even hearing about a retainer agreement with Deutsche whom he supposedly represents.

He/she has no knowledge regarding the status or ownership of the loan account. ZERO. By not knowing he/she avoids liability for lying to the court. And not knowing also provides at least a weak foundation for invoking litigation privilege for false representations in court, behind which the investment banks, Black Knight, CoreLogic et al hide. The same plausible deniability doctrine is relied upon by CoreLogic and Black Knight. They will all say that they thought the loan account was real.

But they all knew that if the loan accounts were real, the notes would not have been destroyed, the control over the loan accounts would have stayed close to the investment banks and compliance with lending and servicing laws would have been much tighter — starting with disclosure to investors that their money was being used to justify a nonexistent trading profit for the investment bank, and disclosure to homeowners that they were signing on for an inflated appraisal, immediate loss of equity, and likely foreclosure because after the origination, the only real money to be made off the loan was through foreclosure.

And both investors and borrowers were prevented, through the artful practice of deceit and concealment, from bargaining for appropriate incentives and compensation for assuming gargantuan risks they know nothing about.

This is like cancer and it is continuing. Nobody would suggest that we keep selling crops that were infected with ebola or which contained some tar substance that reliably and consistently produced cancer. The argument that a company or industry might collapse would not fly because in the end we value human life more than allowing companies to profit off of death and destruction. And the argument that allowing the judicial creation of virtual creditors who can enforce non existent debt accounts is going to save the financial system is just as pernicious — and erroneous.

Wall Street banks are merely protecting their profits. Don’t blame them for doing that. It is up to government and the public to stop it and arrive at something other than the false binary choice of either forcing people out of their homes or allowing a “windfall” to homeowners against the interest of all other honest people who make their mortgage payments. The real solution lies in reformation by judicial doctrine or through new legislation — but until that is completed, there should be no foreclosures allowed. Until it is determined how much concealed risk was piled on investors and borrowers, they should not be stuck with contracts or agreements that sealed their doom through concealment of material facts.

*
Neil F Garfield, MBA, JD, 73, is a Florida licensed trial 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.
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*
CLICK HERE TO ORDER TERA – not necessary if you order PDR PREMIUM.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
*
CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR) (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. 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 12 years or more.
  • 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: boarding process, burden of pleading, CORRUPTION, discovery, Discovery -Subpoena, evidence, Fabrication of documents, foreclosure defenses, foreclosure mill, forensic investigation, investment banking, Investor, legal standing, MBS TRUSTEE, Pleading, Presumptions, prima facie case, securities fraud, Servicer, sham transactions, TRIAL OBJECTIONS, trial strategy | 3 Comments »

You might not know VendorScape but it sure knows you

Posted on October 12, 2020 by Neil Garfield

In a somewhat startling admission by CoreLogic, we now have an admission of many facts that might not have otherwise surfaced but for intensive and aggressive, persistent Discovery. I am not publishing the entire letter from them for privacy reasons. But it is worth mentioning that the letter was sent, after careful legal analysis, as a response to a complaint to the Federal Consumer Financial Protection Board — organized by Elizabeth Warren under the Obama administration. The response was (a) mandatory and (b) subject to charges of lying to a Federal agency.

The problem faced by CoreLogic was that on the one hand it IS and was the central repository of all data and electronic records for most residential loans in the United States. The main IT platform running several systems is called VendorScape which is owned, maintained and operated by CoreLogic pursuant to instructions from Black Knight (and perhaps others) who are serving the interests of investment banks who have no legally recognized interest in any of the alleged “loan accounts”.

But they don’t want the government or the public to know any of that because they are designating nominees to serve or pose as “servicers” who can be thrown under the bus at any that that foul play is actually addressed instead of settled (see 50 state settlement).

So here is what they said

Interesting.

image.png
And here is how it breaks down (legal analysis):
  1. VendorScape exists although they deny it is currently accessed through CoreLogic
  2. VendorScape is an “electronic case management system.” Taken in context with customs and practices in the industry in addition to simple logic, it is THE case management system and it is electronic which means that anyone with login credentials can get into it.
  3. VendorScape output consists of the following:
    1. centralized electronic workplace
    2. storage of “documents” — i.e., images not the original documents because they are not a records custodian for anyone. As the centralized place for “storage” it is VendorScape that is the source server from which all records are produced in printed reports that are merely generated from what is in VendorScape regardless of who added or deleted or changed anything.
    3. initiate workflows “defined by our clients”. This is odd wording.
      1. They appear to be saying that clients access the system and are simply using it as an IT platform to conduct business of the client.
      2. But VendorScape initiates workflows, which means that they have admitted that whoever is actually running VendorScape is making the decisions on when and how to initiate any action.
      3. Since the entire purpose of this system is preparation for foreclosure, the only logical conclusion is that it is a system to initiate foreclosures, notices of default, notice of delinquency etc. based upon human decision-making or automated decision making initiated by humans that control VendorScape.
      4. They will of course say otherwise and that seems to be what they are trying to say — that the client determines the definitions and circumstances of workflows.
      5. But dig a little deeper and you will find that the “client” has no right to make such decisions and that the decision is labelled as the decision of a client (e.g. Ocwen) by permission from Ocwen, who is not actually allowed to make such decisions and does not make such decisions. 
      6. So the reference to the  Client making such decisions is circular allowing anyone to say that it was CoreLogic or  VendorScape who made the decision (thus avoiding liability for Ocwen et al) OR to say that it was Ocwen, as they do in this letter.
  4. They admit that CoreLogic is the party who owns and maintains the storage and functions of the VendorScape system while at the same time implying that they have no connection with VendorScape.
  5. They assert that the data is owned by the clients. This is a common trick.
    1. The data is not owned by the clients because it doesn’t consist of any entries or proprietary information placed in the system by the client.
    2. The information or data is placed there mostly through automated systems controlled by Black Knight but operated by CoreLogic.
    3. Nominal “Servicers” (Ocwen e.g.), who are the “clients” actually have no way of knowing anything about a homeowner account until after it is placed in the system by third parties.
    4. This is why servicer records should not be admitted into evidence as exceptions (business records) to the hearsay rule.
    5. The deadly mistake by many lawyers in court is the failure to timely object to lack of foundation, best evidence and hearsay.
      1. A timely objection is one that is raised at the same time the admission of evidence is being considered by the court.
      2. Waiting until the end of questioning is spitting in the wind. It is already in evidence by that point.
      3. And the second mistake is that after the objection is sustained, the failure to move the court to strike the offending testimony and exhibits. That failure is equivalent to a waiver of the objection, thus leaving the offending testimony or exhibits in evidence.
*
Neil F Garfield, MBA, JD, 73, is a Florida licensed trial 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.
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CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us. In the meanwhile you can order any of the following:
*
CLICK HERE ORDER ADMINISTRATIVE STRATEGY, ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation.Suggestions for discovery demands are included.
*
CLICK HERE TO ORDER TERA – not necessary if you order PDR PREMIUM.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
*
CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR) (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
*
FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. 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 12 years or more.
  • 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: boarding process, burden of persuasion, burden of pleading, BURDEN OF PROOF, CORRUPTION, discovery, Discovery -Subpoena, evidence, foreclosure defenses, hearsay, investment banking, Pleading, securities fraud, Servicer, sham transactions, standing, TRIAL OBJECTIONS | Tagged: , , , , , , , , | Leave a comment »

Tonight! Is it time to sue Black Knight? 6PM EDT 3PM PDT The Neil Garfield Show

Posted on October 1, 2020 by Neil Garfield

Thursdays LIVE! Click in to the Neil Garfield Show

Tonight’s Show Hosted by Neil Garfield, Esq.

Call in at (347) 850-1260, 6pm Eastern Thursdays

Tonight I will discuss the curious case of blatant economic fraud on the entire country by investment banks. They figured out how to eliminate the risk of loss on lending, how not to be labelled as a lender subject to lending laws, and who pursue collection, administration and enforcement of obligations that do not exist.  And then by denying the receipt of funds that paid off the loan on their own books they continue to operate as though the loan exists, and to designate fictitious entities who are falsely represented by foreclosure mills as owning the defunct obligation.

Specifically we explore how to stop this scheme from operating at all.

Foreclosure litigation is like the game of Chess. The banks line up a set of pawns for you to fight with while their real players hide behind multiple layers of curtains. In my opinion it is time to subpoena Black Knight to the table in most instances. Make them produce documents and answer questions. Note that with Chase (and possibly Wells Fargo) there are periods of time when they had their own alter-ego to Black Knight, so forensic investigation is required.

Black Knight, fka LPS (Lender Processing Services), owner of  DOCX and employer of Lorraine Brown who went to jail for fabricating tens of thousands of documents to create the false impression that homeowner obligations still existed and that some designated hitter (e.g., US Bank as trustee for the registered holders of pass through certificates issued by the SASCO Trust a1-2009) owned the obligation.

And then following that logic, since they own  the obligation, the refusal of the homeowner to pay the obligation is assumed to have produced a loss (financial damage). And then, following the logic, being the owner of the obligation and having suffered a loss that was caused by the homeowner’s refusal to pay, the lawyers declare a default on behalf of this designated hitter. And then they foreclose.

The possibility that there is no obligation and that there is no financial loss suffered by anyone  is currently thought of as stupid theory, thanks to the prolific PR efforts of the investment banks. And yet there is not a single case in which any foreclosure mill has produced any admissible evidence regarding the establishment or current status of the account reflecting ownership of the alleged homeowner’s obligation. Not a single case where actual loss has been in the pleading or notices. For two decades this game has been played by investment banks.

In addition, after the origination  or acquisition of the apparent loan transaction,  a new player is introduced (e.g. Ocwen), who claims to have been hired to service the loan accounts that are apparently owned by the designated hitter. But Ocwen only partially “services” the account. It might  have authority to act as agent for the designated hitter,  but the designated hitter has neither authority or ownership of the obligation. So Ocwen is a designated hitter for who ever is really doing the servicing. That party is in most cases Black Knight. In the Chess analogy Black Knight is the Knight who serves its masters (investment banks) and is willing to sacrifice itself and the self-proclaimed “servicers” to protect the King (investment bank).

This means that all records, payment history and document handling does not originate with Ocwen, but rather with Black Knight, who is actually answering to an investment bank who receives both proceeds from homeowner payments, and proceeds from illegal foreclosure sales. And the investment bank receives it as off balance sheet transactions that are actually revenue that is untaxed.

So interrupting the game of foreclosure mills in using “representatives” employed by “servicers” like Ocwen undermines the admissibility of any testimony or evidence from that representative, including foundation testimony for the admission of “business records” as an exception to the hearsay rule. It also brings you one step closer to the King. The harder they fight against you for doing this the more confident you will become that you have hit a nerve — or rather, the achilles heal of this entire scheme that would be a farce if it wasn’t so real.

And lawsuits against the designated hitter might have more credibility if you included not only the designated fake servicer but also the real servicer like Black Knight. And remember the truth is that in virtually so-called loans the end result is that there is no lender and there is no loan account on the books of any company claiming ownership of the obligation. They all get paid in full from “securitization” of the data.  But that means that they never sold the debt, which is an absolute condition precedent and standing requirement for bringing a claim.

So when US Bank is named as a claimant by lawyers, those lawyers have had no contact and no retainer agreement with US Bank who is completely unwilling to grant such right of representation for litigation in their name. But for a fee they are willing to stay silent as long as they don’t really need to do anything. And when Ocwen comes in as servicer, they have no original records and they did not board the records of another servicing company. They merely have access to the same proprietary database maintained and owned and operated by Black Knight who has full control over entries (largely automated through the use of lockbox contracts and then scanned), changes and reports.

So maybe it is time to subpoena  Black Knight who serves as the representatives of the investment banks and maybe it’s time to sue them for being party to a scheme specifically designed to deceive the courts and homeowners.

Take a look at a submission I just received from Summer Chic:

I received the rest of prop.  taxes from 2017 and here is a very interesting detail I want to share.

On November 6, 2019 Black Knight (who deny any involvement to my property*) filed a legal case against PennyMac whom BK accused on theft of their trade secrets and removed from their system.

Almost immediately customers started to complain that PennyMac is unable to perform their “servicing” due to a “major glitch” in their “updated system”.

In other words, PM is NOT able to conduct any functions without access to Black Knight’s MSP.

Since 2017 my taxes were purportedly paid by Caliber – whose tax PO Box  was different than PO box for my check payments.

On Sept. 15, 2019 PennyMac purportedly “paid” my taxes.

But on December 31, 2019 (!) my taxes were paid  by CoreLogic while the receipt shows as Coreligic-PM. I assume these were Spring taxes (which are due in March) because I don’t see any March receipts.

On September 16, 2020 my taxes were again paid by CoreLogic , now without any reference to PennyMac.

During all time in question CoreLogic repeatedly deny any relationship to my property even though they also conducted appraisal for my property via  la mode appraisal software.

In other words, it is clear who handles all escrow accounts.
*On June 15, 2016, or the same day as I filed my application for the loan, Black Knight  ordered Flood Map determination acting on behalf of Perl. Determination was done by CoreLogic who is allowed to use FEMA’s forms and who owns a Hazard Map determination company.
*
Neil F Garfield, MBA, JD, 73, is a Florida licensed trial 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.
*

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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. 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 12 years or more.
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  • If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.

 

Filed under: boarding process, BURDEN OF PROOF, CORRUPTION, discovery, Discovery -Subpoena, evidence, Fabrication of documents, foreclosure, foreclosure defenses, foreclosure mill, forensic investigation, jurisdiction, legal standing, Pleading, Presumptions, prima facie case, Servicer, sham transactions, standing | Tagged: , , , , , , | 3 Comments »

Another Homeowner Victory In Hawaii! Gary Dubin, Attorney

Posted on September 28, 2020 by Neil Garfield

US Bank v Compton 9335344481 Hawaii 2020 Dubin

So here is yet another example of litigation done correctly. This case demonstrates that the courts can and will be convinced to rule in favor of homeowners when the correct issue is raised at the right time in the right way. Here are some quotes from the case:

“Compton asserts that the evidence which U.S. Bank sought to admit through (1) the “Declaration of Indebtedness and on Prior Business Records” by Carol Davis (Davis), a “Document Execution Specialist” employed by Nationstar Mortgage LLC d/b/a Mr. Cooper (Nationstar), as servicing agent for U.S. Bank, attached to the Motion for Summary Judgment, and (2) the “Declaration of Custodian of Note” by Gina Santellan (Santellan), a “custodian of original loan records” employed by The Mortgage Law Firm, PLC (TMLF CA), attached to U.S. Bank’s “Supplemental Memorandum in Support of Its [Motion for Summary Judgment],” was hearsay and not admissible evidence.

“someone purporting to be a “custodian or other qualified witness” must establish sufficient foundation upon which to admit the note. In Wells Fargo Bank, N.A. v. Behrendt, 142 Hawai5i 37, 414 P.3d 89 (2018), the Hawai5i Supreme Court ...

“Davis does not attest to being a custodian of records, but an authorized signer for Nationstar.

“Davis declaration does not state that U.S. Bank possessed the Note at the time the Complaint was filed, merely stating that “[U.S. Bank] has possession of the Note,” and that based on Nationstar’s records, U.S. Bank “by and through Nationstar had possession of the original Note prior to 01/24/17, the date of the filing of the complaint in this foreclosure.”

“although Davis attests to Nationstar incorporating the records of Bank of America, the “Prior Servicer,” and relying upon the accuracy of those records, Davis does not aver that she is familiar with the record-keeping system of Bank of America or the lender Countrywide, which purportedly created the Note and signed the blank endorsement. Thus, Davis’s declaration failed to establish the foundation for the Note to be admitted into evidence. Behrendt, 142 Hawai5i at 45, 414 P.3d at 97; U.S. Bank N.A. v. Mattos, 140 Hawai5i 26, 32-33, 398 P.3d 615, 621-22 (2017).

“Santellans’ declaration does not establish the foundation for admission of the Note to establish possession. That is, like the Davis declaration, Santellan does not attest that she has “familiarity with the record-keeping system of the business that created the record to explain how the record was generated in the ordinary course of business.” Behrendt, 142 Hawai5i at 45, 414 P.3d at 97 (quoting Mattos, 140 Hawai5i at 32, 398 P.3d at 621); Fitzwater, 122 Hawai5i at 365-66, 227 P.3d at 531-32) (determining that while there is no requirement that the records have been prepared by the entity that has custody of them, as long as they were created in the regular course of some entity’s business, the witness must have enough familiarity with the record-keeping system of the business that created the record to explain how the record was generated in the ordinary course of business) (quotation marks omitted).

“Viewing the evidence in the light most favorable to Compton, as we must for purposes of a summary judgment ruling, we conclude that there is a genuine issue of material fact as to whether U.S. Bank had standing to initiate this foreclosure action when it was commenced. Accordingly, we conclude that the Circuit Court erred in granting U.S. Bank’s Motion for Summary Judgment.

“Based on the foregoing, the Judgment and the “Findings of Fact, Conclusions of Law and Order Granting Plaintiff’s Motion for Summary Judgment against All Defendants and for Interlocutory Decree of Foreclosure,” both entered on August 10, 2018, by the Circuit Court of the Second Circuit, are vacated. This case is remanded to the Circuit Court for further proceedings consistent …

Filed under: appeals, boarding process, CASES, CORRUPTION, evidence, Fabrication of documents, foreclosure, foreclosure mill, forensic investigation, Servicer | Tagged: , | 6 Comments »

Processing Fees are more than illegal — by adding them to balance due, the default letter is defective.

Posted on September 2, 2020 by Neil Garfield

This is simple logic. If illegal processing fees were greedily added to the “loan accounts” falsely asserted to exist, then the amount demanded from “borrowers” was incorrect. That would make the statements sent to borrowers part of a fraudulent scheme through US Mails which would be mail fraud. And it would make the notices of delinquency and notice of default and notices of default defective and perhaps fatally defective because they were seeking to enforce an amount not due. And it would make foreclosure judgments and sales based upon such demands potentially voidable.

see https://spotonflorida.com/southeast-florida/1835819/ocwen-phh-corp-pay-125-million-settlement.html

CLICK HERE ORDER ADMINISTRATIVE STRATEGY, ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation.

You know Ocwen. It’s that company that stays in business by the largess of large financial institutions that buy its stock on the open market. Investment bankers use the Company to shield themselves and their own company from potentially trillions of dollars in liability — and possibly prison. It is the company that pretends to be the “servicer” of your loan — which you readily accept because (a) someone needs to do it and (b) nobody else is saying they are “servicing” your loan.

But in reality it is not your servicer because of some technical problems – like the absence of a loan account and the absence of anyone who claims to own your loan account. Only such a company that owned your debt could give authority to a third party to administer, collect or enforce your debt or loan account. Ocwen never received that authority from anyone because in most cases (nearly all) no such creditor exists. (see previous blog articles as to how this highly counterintuitive result is created and exploited by investment banks).

And there is another sticky problem because Ocwen doesn’t actually “service” your loan payments — Black Knight does that, hidden behind the curtains that Goldman Sachs calls “layering” or laddering.” So in the musical chairs presentation of servicers, for enforcement, and Ocwen is designated by Black Knight to come forward as “servicer”, it does so as a witness once removed from the actual entity that collected payments on behalf of a loan account that doesn’t exist.

In plain language the entire process of “boarding” is a charade. The prior company that was designated as “servicer” is simply dropped from the letterhead of notices and statements generated by Black Knight, and Ocwen’s name is inserted instead. “Boarding” comprises a new login name and password to the Black Knight systems.

Ocwen/PHH (after merger) have never made a profit and never will. It is a publicly traded business entity that is waiting to be thrown under the bus. When the s–t hits the fan, and it becomes widely known and accepted that there are no loan accounts and there is nothing to administer, collect or enforce, the plan is to have Ocwen, and companies like Ocwen to take the heat, leaving the investment banks free from blame or liability for civil or criminal infractions. At least that is the plan. But if the government ever breaks free of the control by Wall Street — and clawback of money siphoned from our economy becomes a priority —then it won’t be difficult to pierce through the corporate veils of Ocwen like companies to seize assets held here and abroad.

So it should come as no surprise that such people would add on such things as “processing” or “convenience” fees when there is no processing and there is no convenience. Ocwen has now agreed to pay money because it received a slap on the wrist. But like the hundreds of preceding settlements, nobody is asking about the effect of the illegal practices on the presumed loan accounts, even if they existed.

This is simple logic. If illegal processing fees were greedily added to the “loan accounts” falsely asserted to exist, then the amount demanded from “borrowers” was incorrect. That would make the statements sent to borrowers part of a fraudulent scheme through US Mails which would be mail fraud. And it would make the notices of delinquency and notice of default and notices of default defective and perhaps fatally defective because they were seeking to enforce an amount not due. And it would make foreclosure judgments and sales based upon such demands potentially voidable.

But nobody talks about that because it is the unstated sub silentio policy to uphold the securitization infrastructure that does not exist, to wit: no loan was sold and no loan was securitized. That is impossible because for securitization to be real the loan must be sold to investors. There was never any such sale.

*Neil F Garfield, MBA, JD, 73, is a Florida licensed trial 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.*

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CLICK HERE ORDER ADMINISTRATIVE STRATEGY, ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation.

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*FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. 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 12 years or more. 
  • Yes you DO need a lawyer. 

*Please visit www.lendinglies.com for more information.

Filed under: boarding process, CORRUPTION, discovery, Discovery -Subpoena, Fabrication of documents, foreclosure, foreclosure defenses, forgery, investment banking, Investor, prima facie case, securities fraud, Servicer, sham transactions, standing, TRIAL OBJECTIONS, trial strategy | Tagged: , , | 2 Comments »

How to ask the right questions in discovery

Posted on August 12, 2020 by Neil Garfield

Discovery is part law, part art, and part intuition. The lawyer must generate questions that can be used, by themselves, to bring certain issues in front of the judge either because the opponent answered the questions or because they didn’t answer.

If your point is that your opponent doesn’t own the claim even though they either said or implied that they do own it, then you need to do some investigation first so you can ask the right questions in the right way. If your point is that there are two agreements, one for loan and the other for securitization, the same thing applies. Either way you face an uphill climb as you attempt to persuade a judge who is not an investment banker and doesn’t understands securitization but still thinks he or she understands residential homeowner transactions.

So continuing with our example, you want to show the judge that despite the requirements for legal standing your opponent does not have standing. In order to have standing the claimant must have an injury. Financial injury qualifies and that is what the banks are relying upon when they try to foreclose.

How does one have financial injury? Actual financial damages occur when one actually loses money or permanent value of some property — tangible, intangible, real or personal property all qualify.

By “actual” that means you can count the money that was lost as a direct and proximate result of the action or inaction of the defendant or, in this case, the homeowner.

If the homeowner doesn’t make a payment that had been expected, then several things occur in the law that makes this fairly simple proposition complex.

  1. Does the homeowner owe any money to the party to whom payment was previously being made? If not, then the complaining party had no right to declare, much less enforce the claim of default. The subheading here is counterintuitive — does the debt exist as  an asset owned by any entity, including the claimant? Assuming that the answer to these questions is in the affirmative is an assumption that compromises the entire defense of a foreclosure case. Assuming the answer is no, then discovery will be on the right track.
  2. BUT having previously made payments to the complaining party, the homeowner has been acting against his/her own interest and that is often treated as an implied admission that payment was previously made because the homeowner thought it was due. To take a contrary position now is contradictory and diminishes the credibility of the homeowner who later says that the money is not due.
  3. Was there an agreement under which the homeowner agreed to make the payment? Not so fast. This is more complicated than anything you can imagine because there is no agreement, no matter what was signed or what was even done, unless the agreement is enforceable. In the eyes of the law an unenforceable agreement is no agreement — a legal nullity. And there are very precise elements of a legally enforceable agreement, each of which must be present. this isn’t horseshoes — close is not enough.
  4. Is the claimant a party to the agreement? In the context of loans this is easy if there really was an original lender and a borrower. In the context of securitization, this condition can only be satisfied by the claimant if it purchased the underlying debt for value in exchange for a conveyance of the ownership of the debt. In today’s foreclosures this element is the focal point for most litigation. The claimant always has a conveyance, but never produces any proof of payment for the debt. That makes the conveyance (assignment of mortgage or indorsement of note) void even if it was executed and recorded. It is regarded in all jurisdictions as a legal nullity. If the conveyance was void then the claimant is not a party to the agreement. Litigation is between the bank forces using legal presumptions arising from the apparent facial validity of the conveyance and the actual facts which are absent showing that value was paid for the debt in exchange for the conveyance.
  5. Was there mutual consideration? If not, there is no agreement. In the context of loans this means that the original agreement produced mutuality. In other words, the party that is disclosed as “lender”, pursuant to the provisions of the Truth in lending Act, gave money to the borrower and the borrower took it, in exchange for a promise to repay the money to that party. At least 65% of all loans from the year 2000 to the present were not originated by the party named as “lender” in the “agreement” (note and mortgage). They are table funded loans against public policy. But they are often enforced under the belief that the originator was in privity (agreement) with the source of funds. In the context of securitization, which covers around 95% of all such loans, there was no privity because the source of funds did not want to liable for lending violations (inflated appraisals, nonviable loans etc). The issue is complicated by the fact that the borrower did receive consideration and did make the promise to pay the originator — but neither the note nor the mortgage were supported by consideration from the originator. Any “purchase” from the originator was therefore void, and any conveyance of the mortgage or note from the originator was void unless the grantee had already paid for the underlying debt. In virtually all cases in which securitization claims are present, the grantee has never paid for the debt, nor has it ever possessed the resources to purchase the debt. It is a
    “bankruptcy remote vehicle” which is to say that it is there in name only and possible not even as a legal entity. If you can show that fact or show that the other side refuses to answer properly worded questions about the status and ownership of the debt, then you can raise the inference that the claimant doesn’t possess a claim and therefore lacks standing.

So the questions that should be constructed and posed should center on the following guidelines, for purposes of this illustration:

  1. In which bank account were prior payments received and who controlled that bank account.
  2. On what general ledger of what company is the claimed debt appearing as an asset receivable of that company?
  3. What was the asset account from which the claimant entered a debit to pay for ownership of the debt?
  4. Does the named claimant as beneficiary or Plaintiff own the claimed debt as a result of a transaction on a certain date in which it paid value for the debt to a grantor who owned the debt in exchange for an conveyance of ownership of the debt?
  5. To whom did the servicer forward payments received from the borrower/homeowner?
  6. What person or entity did not receive money as a result of the claimed default?
  7. What is the date on which the named claimant received ownership of the underlying debt?
  8. On what dates has the named claimant issued any payments to third parties whose contractual rights to such payments were in any way related to payments received from the borrower/homeowner?
  9. What is the name and contact information of the officer(s) or employee(s) of the named claimant who is in charge of accounting and finance for the named claimant?
  10. What is the name and contact information of the officer or employee of the named claimant who is the custodian of records relating to the underlying debt, payments received and payments disbursed that were in any way related to the underlying debt, payments made by the borrower/homeowner, or payments received by third parties (possibly investors).
  11. Describe source and the amount of the remuneration and compensation received by the named claimant in connection with the creation, administration, collection or enforcement of the subject underlying debt, note and mortgage.
  12. Describe dates and names of the lockbox contract(s) maintained with third parties for the collection of borrower/homeowner payments relating to the subject loan.
*
Don’t use the above as the actual wording of your interrogatories, request for production or request for admission although some cutting and pasting could be used. Check with local counsel before you attempt to enter the legal process of discovery, motions to compel, motions for sanctions and motions in limine.
*
This article is not a complete treatise on discovery in foreclosure actions. It is not a substitute for seeking advice from an attorney licensed in the jurisdiction in which your property is located.
*
KEEP IN MIND THAT THEY WILL NEVER ANSWER THESE QUESTIONS. DON’T EXPECT ANSWERS. EXPECT THE ABSENCE OF ANSWERS. THEN USE THEIR REFUSAL TO ANSWER AS THE BASIS FOR RAISING INFERENCES AND PRESUMPTIONS AGAINST THEM.
 *
Neil F Garfield, MBA, JD, 73, is a Florida licensed trial 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.
*

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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. 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.
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Please visit www.lendinglies.com for more information.

Filed under: boarding process, CORRUPTION, discovery, Discovery -Subpoena, evidence, foreclosure, foreclosure defenses, forensic investigation, forgery, Investor, Mortgage, Pleading, Presumptions, prima facie case, securities fraud, Servicer, sham transactions, standing, Unlawful Detainer | 5 Comments »

How to Fight Those “Declarations” from False Claimants in Foreclosures

Posted on August 7, 2020 by Neil Garfield

The bottom line is that the loan account was extinguished contemporaneously with the origination or acquisition of the account. There is no loan account claimed as an asset of any company.

The records  of the self-proclaimed servicer are not records of the loan account or the establishment of the loan account on the books of any company. Therefore they are not records of the creditor.

Besides being fabricated those records are irrelevant and inadmissible without foundation testimony and proof that the loan account has been established on the books of some creditor and even then, even that is irrelevant unless that creditor was the named Plaintiff or beneficiary on a deed of trust.

All of this is completely counterintuitive to lawyers and homeowners — but not to investment bankers who continue to profit from each foreclosure without paying one cent to reduce the claimed obligation supposedly due from the homeowner.  And they do this all without ever appearing as a party in court.

Nice work if you can get it.

So here is something I drafted recently in response to a memorandum in opposition to the homeowners’ motion to strike the declarations of the “plaintiff”.

Counsel for the named plaintiff is engaging in procedural and substantive strategies of evasion.
*
While the action is clearly filed for the benefit of “certificate holders,” counsel continues to refer to the plaintiff as Bank of New York Mellon.
Counsel steadfastly refuses to identify the certificates or the holders.
*
In addition, counsel implies a representative capacity on behalf of the “certificate holders” in which the Bank of New York Mellon supposedly has the authority to represent them. As defendant has previously demonstrated to the court, Bank of New York Mellon has consistently rejected any allegation or implication that it served in a representative or fiduciary relationship with certificate holders both in this particular series and in other securitization schemes.
*
Counsel for the named plaintiff supposedly appears on the behalf of unidentified holders of unidentified certificates. Or counsel for the named plaintiff is claiming a fictitious representative capacity in which it represents Bank of New York Mellon. But as previously stated by defendant, opposing counsel has no agreement for legal representation between itself and Bank of New York Mellon.
*
Instead, it has been retained by a party who is a self-proclaimed “servicer” – Select Portfolio Servicing Inc., and counsel for the named plaintiff asserts that SPS is the “attorney-in-fact” for Bank of New York Mellon.
*
However counsel for the named plaintiff has never alleged nor demonstrated that Bank of New York Mellon has ever been party to a transaction in the real world in which it paid value for the underlying debt in exchange for conveyance of ownership of that debt. Accordingly even if SPS is the attorney-in-fact for Bank of New York Mellon, such an assertion is both irrelevant and a distraction from the fact that there is no creditor present in this lawsuit.
*
The truth of the matter is that opposing counsel represents neither Bank of New York Mellon nor the certificate holders. Its sole relationship and contact is with SPS, owned by the real player in this action, Credit Suisse — who seeks only profit from the sale of homestead property since the loan account and the underlying debt were retired in the parallel securitization process.
*
There is no such debt or loan account and therefore there can be no owner. And if there is no owner of the debt or account then there is no creditor, lender or successor lender. SPS may have some agency with Bank of New York Mellon but that does not create the rights they seek to enforce.
*
Counsel for the named plaintiff asserts “the declaration was clearly executed by a person with “personal knowledge” as required by the foreclosure order.” This is not a true statement. Counsel is being disingenuous with the court.
*
The declaration was executed by somebody identified as a “document control officer.” The declaration says nothing else about any personal knowledge acquired by the signatory. In fact it does not even define “Document control officer.”
*
The declaration itself does not establish the foundation for testimony about the subject loan despite the characterization advanced by opposing counsel. The statement in the declaration is that “SPS holds and maintains all of the business records relating to the servicing of this loan.” There is no statement or allegation or any other evidence in the court file, nor could there be, that the records of SPS include entries that establish the subject debt, note and mortgage as an asset of any entity. That is because no such entity exists and no such loan account presently exists.
*
Opposing counsel disingenuously attempts to distract the court by focusing on the familiarity with the record-keeping practices and record-keeping systems of SPS. Such familiarity is irrelevant if the records are not those of the creditor. This is irrelevant if SPS is not an authorized agent of the party who has paid value for the debt in exchange for a conveyance of ownership of the debt. No such allegation or evidence exists except through the use of presumptions related to documents that are not even facially valid.
*
Accordingly the opposition filed by opposing counsel is simply another step in the attempt to distract the court from the simple fact that no loan account has ever been established nor has the ownership of such an account been established. Opposing counsel has relied upon innuendo, implication and self-serving inferences to establish facts that do not exist in the real world.
*
The declaration of opposing counsel is false. Neither the attorney nor the law firm represents the Bank of New York Mellon. In addition, the attorney falsely alleges “personal knowledge” without specifying how that knowledge was obtained. Like all other documents in this case, the creation of this document is meant to create an illusion based upon a cursory glance at the document rather than an analysis of it.
*
The declarations in this case do not survive any credible analysis.
Similarly, the creation and execution of a “limited power of attorney” on March 5, 2020, after the lawsuit was filed and after the motion for summary judgment was filed, is another disingenuous effort to distract the court. The execution of the power of attorney, even if it was valid, is irrelevant if the grantor had nothing to grant. There has yet to be any reference, allegation, exhibit or evidence submitted establishing the identity of any entity that maintains the subject loan account as an asset on its financial statements.
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In conclusion, any reasonable attentive analysis of the documents submitted by opposing counsel reveals the absence of any allegation that counsel represents any party on whose behalf this action was filed, according to the complaint and subsequent filings. Taken individually or collectively, the documents are a smokescreen for the pursuit of profit of a third party (Credit Suisse) rather than restitution for an unpaid debt that no longer exists. 
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Neil F Garfield, MBA, JD, 73, is a Florida licensed trial 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.
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Filed under: boarding process, CORRUPTION, discovery, Discovery -Subpoena, evidence, Fabrication of documents, foreclosure, foreclosure defenses, foreclosure mill, investment banking, jurisdiction, legal standing, Pleading, Presumptions, prima facie case, Servicer | Tagged: , , , | 4 Comments »

Gary Dubin, Esq. Scores Another Victory for Homeowners in Hawaii in Notorious LSF9 Case

Posted on August 4, 2020 by Neil Garfield

More kudos to Gary Dubin who keeps producing favorable decisions for homeowners. This ruling is important for a variety of reasons. This time it is all about the rules of evidence and legals tanding to even bring the claim.

see US Bank LSF9 v Verhagen 7-20-20

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The first reason is that it presents a court of appeal that drilled down on the actual facts rather than the presumed facts. This is a substantial departure from prior judicial practice. I think it reflects a change in judicial attitude. While nobody is willing to say that these foreclosures are entirely fraudulent, The suspicions and reservations about these actions are starting to surface.

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So the second reason that this may be important is that the court made an effort to identify the labels used to identify people who supposedly had knowledge and Authority.
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The third reason is that this decision brings us back to basics. This is not new. But it is instructive. If there was no claim to begin with then there is no foreclosure.

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The fourth reason is that this deals within the infamous LSF9 “trust” for which US Bank is labelled as a trustee.
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The fifth reason is that the decision deals explicitly with rules of evidence — what is admissible and what is not admissible evidence. And specifically affects the admissibility of records of self-proclaimed servicers.
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Unless the robo witness can explain to the court’s satisfaction how he or she knows that the records of the “prior servicer” were created in in the ordinary course of the business that the lawyers are saying was bing conducted, then the only way those prior records can be admitted into evidence is by a custodian of records of the prior entity that was claiming the right to service the homeowner account.
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What is clear is that no such witness is available because the “prior servicer” was not actually performing any servicing function on behalf of any creditor (because there is no creditor). The whole reason that Caliber became the designated “servicer” was to prevent Chase from being accused of perjury. This decision brings them back into something they don’t want to be in.
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Chase knows that the debt was never purchased or sold by anyone to anyone. They know that the money received from homeowners was not for the LSF9 trust and they know that the foreclosure is not being pursued for the trust or the trustee, US Bank, nor the investors who bought certificates. Chase knows that this foreclosure is being pursued for Chase and Credit Suisse.
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And Chase knows that if this simple fact is revealed, the court will demand that Chase and Credit Suisse prove they are entitled to receive those proceeds and that the court will question why the action was not brought in their name. Chase knows they can’t answer those questions because there is only one answer — they are pursuing foreclosure through intermediaries because they want the money — not to provide restitution for unpaid debt to someone who paid for it but to increase their swollen wallets with more profit.
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The devil is in the details. And this time the details revealed the fatal deficiency in the foreclosure action. But it’s not over. Having vacated the Summary Judgment, the foreclosure mill is being given a second bite at the apple with a real trial. In all probability this case will be settled under seal of confidentiality and will never get to trial But if it does get there, then the lawyers must hold the trial judge’s feet to the fire and require actual testimony of actual personal knowledge as to the record-keeping practices of the prior servicer.
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The lawyers should also focus on the most basic assumption — that Caliber or Chase were ever “Servicers.” If they are not then their records are suspect and are created solely for the purpose of foreclosure proof rather than being records of actual transactions. Such records are inadmissible without corroboration from a credible reliable source.
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The way to attack this, I think, is by forcing the issue on who received payments from the servicer. You won’t find a creditor in that mix. The ancillary and more important question is who has previously received the cash proceeds from the forced sale of residential homestead property in foreclosures commenced in the name of the LSF9 trust? Neither US Bank nor the trust ever saw a dime — and they are never intended to receive anything.

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Neil F Garfield, MBA, JD, 73, is a Florida licensed trial 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.
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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. 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.
*
Please visit www.lendinglies.com for more information.

Filed under: boarding process, BURDEN OF PROOF, CORRUPTION, discovery, Discovery -Subpoena, evidence, Fabrication of documents, foreclosure, foreclosure defenses, foreclosure mill, forensic investigation, Investor, jurisdiction, legal standing, MBS TRUSTEE, Pleading, prima facie case, Servicer, sham transactions, standing | Tagged: , , , | 2 Comments »

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