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 »

Stop Using the Labels: Homeowners Lose Foreclosure Cases When They Refer to the “Servicer”

Posted on December 27, 2021 by Neil Garfield

You need to challenge the status of the company claiming to be a servicer by finding out what functions they really perform.

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I know I have contributed to the problem, but I think it’s time to stop using the labels that are promoted by the banks.

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Companies that are claimed to be the “servicer”, by all accounts, do not perform any functions normally attributed to that label. This it is against the interests of the homeowner or the lawyer representing the homeowner to accept the use of the term unless there is foundation testimony as to the actual functions performed by the company rather than the presumptions arising from the label “servicer.”

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The actual receipt and distribution of funds, and the bookkeeping and accounting therefor, is performed by third-party vendors (FINTECH) who have absolutely no contractual or other duties owed to the company named as the “servicer.” That makes the “report” presented in court as a “payment history” both fictional and pure hearsay that cannot be admitted into evidence — unless the homeowner waives that objection. 

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The FINTECH companies also have absolutely no contractual or other duty owed to the named claimant. And the named claimant (Plaintiff or beneficiary) does NOT receive any payment from either the “servicer” or the FINTECH companies — including the money proceeds of foreclosure sales. That is entirely fiction. AND that is why every attempt to obtain corroboration through QWR, DVL or legal discovery is stonewalled. There is no corroboration.

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Each foreclosure produces money proceeds that go into the pocket of an investment bank as either general revenue or “return of capital” against the fictitious double-entry bookkeeping account. In plain language, the money is NEVER used to reduce a loan account because there is no loan account. That is why you can’t get the loan account even in discovery and even if you sue under the FDCPA. But that fact alone gives the homeowner the upper hand.

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You need not understand or believe this presentation. But if you want to win your case, you need to assume that this is true and act accordingly.

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By accepting the label of “servicer” you are also tacitly and unintentionally accepting the “payment history” as an exception to the hearsay rule and an acceptable substitution for the testimony and proffer of the records of the known and named claimant. Once you have done that, you have lost. You need to challenge the status of the company claiming to be a servicer by finding out what functions they really perform.
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But the payment history is nothing of the sort. It is a report on a report prepared by an undisclosed FINTECH company from data that has been “massaged” as instructed by an investment bank. It is NOT a simple report of the condition of the loan account.
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Want proof? Show me one “payment history” that contains the beginning entry starting the loan account and showing the current balance as owned by the named claimant. It doesn’t exist. Show me one payment history that shows disbursement of funds received from anyone to any creditors. It doesn’t exist.
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So if there is no presentation of disbursements to creditors, how would the court ever accept the idea that the company received any money? How could the court ever assume that the company could account for the receipt of money it never actually received?
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The answer is obvious even to people with accounting or legal knowledge. You would have no record of receiving money that was never received. And that is because nobody would enter any data in any record of any company saying that they personally received the payment as an employee of the company claiming to be the servicer. Making such an entry would be a lie and presenting it in court would be perjury.
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The other part is the assumption that the company that is claimed to be the “servicer” is somehow working for the named claimant, or is the agent for the named claimant.
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This is exactly the trap that the banks have set. This is sleight of hand maneuvering.
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By distracting the homeowner and the attorney for the homeowner to the question of the authority of the servicer, the argument shifts away from whether the “servicer” is performing any of the normal duties attributed to the servicer and away from the issue of whether the existence of a trustee or trust is even relevant since the trust does not own the underlying obligation as required by UCC 9-203.
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I write this primarily for the benefit of attorneys. Only an attorney will recognize the importance of these issues.
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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

Click

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: burden of persuasion, burden of pleading, BURDEN OF PROOF, CORRUPTION, discovery, Discovery -Subpoena, evidence, Fabrication of documents, foreclosure defenses, foreclosure mill, forensic investigation, investment banking, Motions, Pleading, Presumptions, prima facie case, Servicer, sham transactions, TRIAL OBJECTIONS | Leave a comment »

Why You Need to Perform Investigation of Real Facts in the Real World

Posted on December 22, 2021 by Neil Garfield

I state with great confidence that among those homeowners who perform and achieve a slam dunk win over the foreclosure lawyers, the great majority enjoy that victory because they did the investigation and hired a lawyer who knew what to do with the information (as opposed to slinging it at the judge and expecting the judge to make sense of it).

Question received from one of the readers of this blog: “I’m trying to understand how a house in NJ.  Is alleged to be notarized in Florida and recorded by a company in Idaho (whose Name of course, is not even in business any longer).”

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SImple answer — none of that happened. I don’t know your case but in all probability, Black Knight fabricated a false document on instructions from a central source controlled by an investment bank. An investigation will reveal whether that statement is applicable in your case. I am willing to bet $100 that it IS true.

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CoreLogic and/or other vendors (probably affiliates of Black Knight) affixed the signature, the notary signature, the notary stamp, and where necessary for local recording rules the signatures of witnesses electronically using direct electronic signature or mechanical pen.

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The name of the company or person was selected by an algorithm based on instructions from the same source. It does not matter that the company is not in business because inserting ANY name makes the document look like it is facially valid. But the document can be challenged as NOT being facially valid because ti is a matter of public record that the corporation’s charter expired, was dissolved or that the company went bankrupt.

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The content of the instrument is false since it most probably states that it is an assignment or an allonge. The rule adopted by all states, and supported by centuries of precedent in statutes and case law, is that a transfer of the mortgage or deed of trust is ineffective (i.e. a “legal nullity”) unless the underlying obligation is also transferred from the same grantor to the same grantee. The fact that someone or some company is named as a transferee does not make them the status of a legal grantee.

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Some people, like Chic, have gone to the trouble of investigating the musical chair scenario that emerges from the use of false or dead-end addresses for what appears to be major businesses, enterprises or even banks that are Federally or state-chartered.
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They have discovered and taken pictures of the locations in which the companies were asserted to exist — although often not directly — by implication from return addresses. Nobody ever says that the letter is coming from the company on the letterhead or that there is any warranty or even assertion of title in such documents.
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It is all implied so that the perpetrators can later claim plausible deniability, to wit: we didn’t do it. That was done by some outsource vendor of Joe’s Documents, LLC and we knew nothing about it. Joe has a recurring source of residual income because he has agreed to let his company name and address to be used even though the address is a loading docket licensed to a private investigator.
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The moral of the story for homeowners is that unless you are in this for entertainment purposes only, you need to act on your suspicions and hire private investigators like Bill Paatalo to actually locate the signors and notaries, track down the supposed addresses, and confirm by fact — not opinion — that the document could not have executed by the party named as grantor and that the grantee was not a legal entity.
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This isn’t divorce court where lawyers makeup facts and hurl accusations. This is a real court where the judge is bound by the evidence. Your opinion is not evidence.
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But I state with great confidence that among those homeowners who perform and achieve a slam dunk win over the foreclosure lawyers, the great majority enjoy that victory because they did the investigation and hired a lawyer who knew what to do with the information (as opposed to slinging it at the judge and expecting the judge to make sense of it).
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See below for an example of allegations that can be made after an effective investigation. Most people have neither time nor the skills necessary to perform such investigations. That is why you need a licensed private investigator to come up with real facts revealing the fake story used as part of a false national narrative with false labels on documents, persons, and business entities that may or may not even exist as registered business entities in any jurisdiction. Yes this is boring work but it is what usually makes the difference between winning and losing.
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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

Click

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)
*
*
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.
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Here are a few examples of investigation that yielded some interesting results:
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The purported “Ocwen Loan Servicing” address traces back to an industrial concrete-block windowless warehouse building with truck docks, of 14,233 sq. ft., internally a self-storage unit building operated by “Security Connections, Inc.” and crafted, as are all other “Ocwen” locations, as blind alleys intended to obfuscate and confuse, leading to dead-ends.

  1. The true picture of 240 Technology Drive, Idaho Falls, showing an industrial warehouse, is incorporated herein:

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The falsified and fraudulent papers crafted as purported “Assignments” and filed on the Stamford Land Records are and were designed by the actors for the purpose of obfuscation and slander of title, and contain inherent false statements such as the claim that Deutsche Bank maintains offices at “1661 Worthington Road, Suite 100, West Palm Beach, Florida,” when if act it does not, and never has.

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William Erbey subsequently re-incorporated Ocwen Mortgage Servicing, Inc., his latest vehicle for mortgage fraud and abuse,  in the British Virgin Islands, claiming a registration address of Waterfront Center, Suite A, 72 Kronprindsens Gade, PO Box 305304, St. Thomas VGB.  That address comes back to the “Trident Trust Company,” a Virgin Islands “brass plate” corporation accommodation address provider, wherein a brass plate screwed onto the door is sufficient to establish corporate existence.  The actual address used by Ocwen in its representations to the public and the courts sources back to a tourist souvenir knick-knack stall located at the foot of the cruise ship dock in the British Virgin Islands.  The souvenir stall is currently boarded up.

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The “588 Assignment” represents that Mortgage Electronic had a place of business at 3300 SW 34th Avenue, Suite 101, Ocala, Florida.  In reality, Mortgage Electronic did not have any business address at that location, and the representation was a falsity.

  1. The signature undertaking on the “588 Assignment” represents that it was signed by one “Paige Helen” as Vice President of “Mortgage Electronic as Nominee for NetBank.”  Despite this representation, the notarial undertaking declares that Paige Helen was in reality an employee of “IndyMac Bank, FSB.”

Filed under: burden of persuasion, burden of pleading, BURDEN OF PROOF, CORRUPTION, discovery, Discovery -Subpoena, evidence, expert witness, Fabrication of documents, foreclosure, foreclosure defenses, foreclosure mill, forensic investigation, Judicial notice, Pleading, Presumptions, prima facie case, Servicer, sham transactions, standing | Tagged: , | 3 Comments »

Tonight! Q&A on Prelitigation Strategies — QWR, DVL and Complaints to CFPB and State AG 6PM EST 3PM PST

Posted on December 9, 2021 by Neil Garfield

Thursdays LIVE! Click into the Neil Garfield Show

Tonight’s Show Hosted by Neil Garfield, Esq.

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

As a follow-up to our FREE presentation CLE webinar on Prelitigation Strategies and Practices, we offer an open mike Q&A on tonight’s show. Please think about your questions in advance and refrain from long monologues about your case.

As an introduction let me state the obvious premise of this work: If as a consumer you have executed a promissory note and mortgage (or deed of trust) and you think that there is a loan account receivable somewhere that is owned and maintained by some lender or creditor, you are most likely incorrect.

Most homeowners make the mistake of thinking that the QWR and DVL are simply “form letters.” If that were the case, we would provide you with the template and you could send it out yourself. And back in the old days (pre-1995) that would be entirely appropriate for settling any disputes regarding the proper allocation of payments or any other issues.

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The statutory foundation for the creation of the QWR and the DVL was designed to resolve potential disputes between the debtor and the creditor.
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Today, the situation is different. We already know that there is no valid claim against the homeowner and that there is no valid claimant. We also already know that any company that is claimed to be a “servicer” neither has any legal authority to act as such (from anyone) nor does it perform any functions that are normally attributed to a company claiming to be a servicer.
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So while the legislative intent for providing consumer remedies in RESPA and the FDCPA was designed to resolve disputes, the procedures contained within those statutes are now used by homeowners to start a dispute — because, without a history of disputing the claims made to administer, collect or enforce any alleged obligation due from the homeowner, it is much harder to mount an effective defense.
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So the idea behind the sending of a QWR and DVL is to identify specific issues that you already know will not be answered — which gives you the right to file a lawsuit for violation of RESPA and FDCPA. In order to do that effectively, the homeowner needs to distill the case analysis down to the points that are relevant to those statutes. Although this is not exactly the same as preparing a lawsuit, the drafting of the QWR and DVL requires research, investigation, and very careful wording.
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Some homeowners have been able to do it themselves, but most are unable to do so because they lack the experience, knowledge, and resources to present direct questions concerning the existence of the loan account receivable, the status of the account, the ownership, and the authority to administer, collect or enforce any monetary obligations arising from the alleged existence of the account.
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Most of this is confusing to homeowners because they have never been to law school, received any practical training in trial practice nor have most of them ever been involved in any litigation. When most homeowners send the QWR or the DVL and they fail to get a direct answer or proper response that answers the specific questions asked in those letters, they consider the entire effort a failure and a waste of time — when in fact they just had a win. They have established that the parties seeking to make claims about administration, collection, or enforcement of the alleged obligation are unwilling or unable to provide any corroboration of such claims.
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IMPORTANT PRACTICE NOTE: When the QWR or DVL is used as a general discovery device or is used to pontificate about disputed views, it is generally dismissed by both the recipient and any court reviewing it as an unqualified written request under RESPA and not a demand for debt validation under the FDCPA. This is where the homeowners get themselves into trouble. The general attitude is that the “you know what I mean” argument is sufficient. It isn’t.
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Filed under: burden of persuasion, discovery, Discovery -Subpoena, Fabrication of documents, foreclosure defenses, forensic investigation, Pleading, Presumptions, prima facie case, sham transactions | Tagged: , , , | 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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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, 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. 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 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, evidence, Fabrication of documents, foreclosure defenses, forensic investigation, investment banking, legal standing, Pleading, Presumptions, prima facie case, Servicer, sham transactions, TRIAL OBJECTIONS | 2 Comments »

The fallacy of construing negative decisions as bad decisions for homeowners

Posted on November 29, 2021 by Neil Garfield

It’s not the job of courts to save litigants from their own admissions. 

Here is a simple rule: if you admit the existence of the loan account receivable and you admit the rights of the servicer and the currently named claimant, you have no viable basis to challenge standing or enforceability. “Yes, but” doesn’t count in court.

Here is the other rule: if you challenge the existence of the loan account receivable and deny the rights of the servicer and the currently named claimant consistently, starting with the first notices and correspondence that you receive after the apparent “closing” the transaction, AND if you aggressively pursue statutory and discovery demands, your opposition will be unable to prove a case against you. 

Amongst the people out there who would like to see better decisions for homeowners in the courts, there are those who continue to point to decisions against the homeowner at the trial court level, the intermediate appellate level, and even at the supreme court level. And in keeping with the high level of conspiracy thinking, many people assume that such decisions are the result of corruption, and then come to the conclusion that the government is corrupt.

I suggest taking a different view. The decisions in court are perfectly rational and proper if you accept the facts that have been recited. Given those facts, the courts had no choice but to rule against the homeowner.

I get in trouble for saying this, I think the problem is with the homeowners and not with the courts. And specifically, I think the problem is that the homeowners believe in the national narrative and labels used by the banks. Virtually all homeowners believe that they established a loan transaction merely because they applied for one.

Virtually all homeowners believe that notices of transfer of ownership and servicing are true. And virtually all homeowners will admit those facts in telephone conversations, correspondence and pleadings when they go to court.

Here is a simple rule: if you admit the existence of the loan account receivable and you admit the rights of the servicer and the currently named claimant, you have no viable basis to challenge standing or enforceability.

Here is an exchange I just had with a client and her lawyer regarding ar recent decision from the 3rd DCA in Florida. Yes, it is annoying, but if I was sitting on that court I would have ruled the same way. It’s not the job of courts to save litigants from their own admissions.

This case is another good example of starting off on the wrong foot and then compounding the error. The trial court and the appellate court were proceeding based upon an assumption of facts, none of which were true. But the homeowner had admitted those facts and the expert for the homeowner had reinforced the admission. It is virtually impossible that the named originator of the transaction was an originator or lender. It was merely a placeholder for the purpose of creating the illusion of a loan transaction. It did not provide any funds to the homeowner.

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The initial recitation by the court that this was a straightforward foreclosure action is also completely wrong. But given the fact as they were recited by the appellate court, their decision was completely correct.
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I obviously don’t know what happened in the trial court, but the judge signed an unusual order. This is frequently caused by the judge having a stack of proposed orders in front of him or her combined with the desire to get out of the office.
The bottom line is that none of these cases are “straightforward foreclosures.” In fact, when you scratch the surface, they are not foreclosures until the judge signs a final judgment of foreclosure.
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At the beginning (i.e., at time of filing), they are mere attempts to abuse the legal process for profit, masquerading as some recognized cause of action but without any true facts or authentic, valid documents to back up their claim. They (the law firms) win most of the time because nobody has the courage to challenge the basic claim and thus they don’t use available discovery rights to defeat the ability of the claimant to prove a case. The main mistake, therefore, is in thinking that because the case has been pleaded in a satisfactory (or apparently satisfactory) manner, that the basic elements of the allegations are true., They are not.

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And the law firms, proceeding under both plausible deniability and litigation immunity, or making allegations about the existence of a client and a claim that are completely false. The law firm in most cases (nearly all) has had no contact with the named plaintiff, beneficiary, or claimant and maintains no contractual relationship for representation in court. In fact, if you demand acknowledgment from an officer of the named claimant, you will never get it — because that’s not part of the deal for allowing their names to be used as the plaintiff, beneficiary, or claimant in a judicial, non-judicial, or bankruptcy proceeding.

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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

Click

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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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: appeals, burden of persuasion, burden of pleading, BURDEN OF PROOF, discovery, Discovery -Subpoena, expert witness, Fabrication of documents, foreclosure defenses, foreclosure mill, forensic investigation, legal standing, originator, Pleading, prima facie case, sham transactions, TRIAL OBJECTIONS | 3 Comments »

Who gets a QWR or DVL and When?

Posted on September 21, 2021 by Neil Garfield

LEARN HOW TO FIGHT WITH HONOR AND WIN!

After some reflection, legal research and analysis I have come to the conclusion that a very good way for homeowners to put tracks in the sand that they can use later with success is to use the following protocol — subject to the opinion of local counsel:

  1. Send QWR and DVL to “servicer” and nobody else. Under statutes, service to one is service to all anyway.
  2. In cases where the creditor is either asserted or implied to be a bank as trustee for a REMIC trust, send a second QWR and DVL to the trustee expressly demanding that they acknowledge that they are in fact the creditor who purchased the alleged underlying obligation and that they have a record of such purchase.
  3. After receiving an evasive answer, file an FDCPA suit against the trustee only alleging that it is renting its name to third parties who are using it to collect money on the fake premise that money is owed to them.
    1. As an alleged debtor, if there is a change in who is allowed to collect the debt, the debtor is entitled to receive direct notice from the old creditor that they are not the creditor anymore and that the new creditor has been identified. You never received that notice from the old creditor. You went the extra step of asking for it. You still didn’t get the answer.
    2. For transactions in which the homeowner is treated as current, you want to deposit the money into the court registry until they comply with the statute. ANd you want fees, costs and statutory damages.
  4. In judicial states, file a motion for summary judgment (not an affirmative defense) along with an affidavit that asserts that the bank trustee and the trust have failed to produce any proof of payment for the underlying obligation and an affidavit from the homeowner stating failure to receive notice of change of creditor and failure to receive notice of appointment of the servicer from the old creditor or the new creditor. An unsigned notice that comes from the servicer is not notice from the old creditor — by definition. It is a company proclaiming itself to be the servicer without identifying its authority to make that announcement.
  5. In all cases after a Notice of Default is issued, litigation should include declaratory and injunctive relief to declare the notice invalid and enjoin the would-be servicer from issuing such notices absent acknowledgment from an officer of the bank that serves as a trustee of the REMIC trust that the bank maintains a trust accounting ledger on which the debt from the homeowner is reported as an asset of the REMIC trust —- and in which the Trustee has appointed the “servicer” to act as servicer and that the servicer does, in fact, handle money receipts and disbursements of payments from homeowners such that the servicer is the actual recipient of such funds and is the actual disbursement agent of such funds.
  6. In nonjudicial cases, the same protocol would be appropriate in my opinion.

The object of this protocol is to undermine the premise that the proceeds of foreclosure sales go to creditors who are reducing an asset that they paid for and to offset the loss from failure to receive scheduled payments. You don’t have to believe it or understand it. Just use it!

PRACTICE HINT: Do not attempt to prove an allegation that the debt does not exist or that the parties seeking to enforce have no authority to do so. Limit the attack to the ability of the foreclosure mill to produce required proof of payment that is required when a debtor makes the challenge. Do nothing that puts the burden of proof on the homeowner. Make no allegation of fact except that you asked and failed to receive the notices you were supposed to get.

SIGN UP FOR FORECLOSURE DEFENSE WEBINAR FOR LAWYERS (HOMEOWNERS ALLOWED)

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 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.
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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)
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: burden of persuasion, burden of pleading, BURDEN OF PROOF, CORRUPTION, discovery, Discovery -Subpoena, evidence, expert witness, foreclosure, foreclosure defenses, foreclosure mill, forensic investigation, MBS TRUSTEE, Pleading, Servicer, sham transactions, TRIAL OBJECTIONS, trustee | 1 Comment »

Homeowner’s Dilemma and Pro Se Nightmare: Wanting the system to change is not the way to win a case

Posted on January 6, 2021 by Neil Garfield

Homeowners win because there is no legal claim against them. But they will lose every time if they fail to establish the inability or unwillingness of the foreclosure mill to come up with concrete evidence that there is, in fact, a loan receivable entry on the accounting ledgers of the claimant and that it got there by virtue of a real-world transaction in which value was paid for the underlying obligation.

Unfortunately, as we all know, all perjury and fraud upon the court is illegal but always allowed unless it is challenged in a timely and proper way. We need to change the rules and the preapproved form pleading such that the main element of the playbook of the banks can be defeated. The main element is to force the homeowner Into a position where the homeowner must expend huge quantities of time, money, and energy defending a frivolous claim.

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Their goal is to wear out the homeowner and the homeowner’s attorney. And they are using this strategy because it works. Over 96% of all foreclosures proceed by the default of the homeowner, to wit: they simply assume that everything alleged against them is true and they walk away.

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The rules and preapproved form pleading are focussed on judicial economy and finality — i.e., how to quickly bring a dispute to final and complete resolution. They must start somewhere and in our system, they start with the claim. In most situations, the system requires a judge to treat the claim as true for most of the proceeding unless there is something obviously wrong that is clearly and indisputably known and demonstrated.

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Claiming that aliens from the planet Zorcar gave you the assignment of mortgage would be an exception to the rule. Your claim will not be accepted as true under the rules unless you claimed (and attached exhibits) also to have proof that aliens were involved, that the planet  Zorcar existed, and that they were the owners of the underlying debt. Since your premise is outside of the normal knowledge of any reasonable person or lawyer or judge, it would be dismissed for lack of credibility — because in the absence of your allegations that you did have such proof, the presumption in that situation would be that you had no way of proving it.

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In most of the small percentage of cases where homeowners contest the Foreclosure both they and their attorneys are seeking only delays in what they think is an inevitable result. So no real effort is made to reveal the fact that the attorneys in the Foreclosure Mill have absolutely no concrete evidence to support the claim they are advocating on behalf of entities that probably don’t exist. And in most of those cases, the homeowner admits that the “loan” exists, that the obligation exists, that the obligation is owed to the claimant, etc. In doing that, the homeowner falls into a trap. Once all of those facts are admitted by the homeowner, the defense becomes “yes, but” which rarely works.
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It is only where homeowners are unrelenting in their contest of the f foreclosure and where they follow the rules on discovery, motions enforcing discovery, objections, and cross-examination that the homeowner wins. They win because there is no legal claim against them. But they will lose every time if they fail to establish the inability or unwillingness of the foreclosure mill to come up with concrete evidence that there is, in fact, a loan receivable entry on the accounting ledgers of the claimant and that it got there by virtue of a real-world transaction in which value was paid for the underlying obligation.
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You might not like that answer but it is perfectly correct and true. Your only chance of winning these cases is by excepting the fact that the rules apply and that the judge is bound to follow them. You can use the rules against your opposition and reveal the fact that there is no concrete evidence for the basic elements of their claim. But if you fail to do that, the rules favor party that makes the claim. That is not just true in foreclosures, it is true in all civil cases.
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If you want an analogy, think about a murder case. Everyone knows that it is against the law to kill somebody. And yet the murderer will go completely free without any damage to his reputation Or without any damage to his record and without any loss of freedom — unless someone catches him, charges him, shows probable cause, gets a conviction, and wins on appeal.
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Homeowners must realize that is the essence of their defense is closely related to criminal fraud. That is never going to be presumed to be true at the beginning of the case. In our system, or people who are accused of such illegal behavior are presumed innocent even if they have exhibited a pattern of illegal behavior in the past. It is an age-old problem That in individual cases people are offended that such offenders go free. We could debate the philosophy behind those rules but we cannot debate the fact that those rules exist.
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It is unfair that homeowners must master the rules of court in order to defend themselves against frivolous claims. While they are allowed to represent themselves in court they have no idea how to do that. They walk into court believing that being right is enough. It isn’t enough and it never is. So they will most often lose cases that a good trial lawyer would win. Or they delay hiring a lawyer until it is too late for the lawyer to do anything constructive under the rules.
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

*
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 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)
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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: burden of persuasion, burden of pleading, BURDEN OF PROOF, discovery, Discovery -Subpoena, Eviction, evidence, Fabrication of documents, foreclosure, foreclosure defenses, forensic investigation, jurisdiction, legal standing, Pleading, Presumptions, prima facie case, TRIAL OBJECTIONS, Unlawful Detainer | 4 Comments »

What Happened With Your “Loan” — By admitting that you received a loan you lose.

Posted on December 16, 2020 by Neil Garfield

The plain truth is that homeowners are losing their cases through assymetry of information. They think they understand when they do not have a clue. They are admitting the obvious, which turns out to wholly untrue. In so doing they give the court no choice but to enter judgment aganst them. 

ApplicationForLoanProcessAndFundingOfServiceFees

I am experimenting with new ways to present this. If you click on the above chart you will see that the application process is actually a dead end. Nobody actually agrees to lend any money. Nobody does lend money.

Money arrives later at the “closing” table but unknown to the borrower it is not a loan. Contrary to popular belief which is based on ignorance of the actual process, no loan is sold. No obligation is sold. Nobody ever becomes the owner of any loan or obligation. Nobody records a purchase of any loan obligation. And nobody maintains any loan account receivable.

Whether it is described as a loan broker or “loan originator” (for which there is no legal definition) it is there for the fees. It is not present to participate in any loan nor does it receive any profit from making a loan. It does not share in any profit from making a loan because there is no loan. There is no lender. Calling it a lender does not make it a lender.

But you can reverse that (and lose your case) by calling it a lender in your conversations, pleadings, motions, memoranda or argument in court.

  • As soon as you have done that, for purposes of that case, you have admitted the existence of the loan.
  • In so doing you have tacitly admitted that the loan broker or the originator was the lender.
  • In admitting that there was a lender you have identified the lender as the loan broker or originator.
  • By doing that you have admitted that the originator had ownership of the underlying obligation.
  • By admitting that, you have admitted that the originator or broker paid the money that appeared at the “closing table.”
  • By admitting that you have also admitted that the lender — or its “successor” — suffered an actual economic loss that was proximately caused by the “nonpayment” of the homeowner.
  • And so by admitting that you have admitted that the action for foreclosure is valid.

Just a word about “successors.” You will often find the word used. Sometimes “MERS and its successors.” Sometimes “MERS for XYZ and its successors.” A successor is a company who has purchased the obligation or who has purchased the company that owned the obligation. In residential transactions, there is almost no instance where such an event has occurred.

There are no successors. There are no companies even willing to pose as successors unless they are sham conduits — thinly capitalized to be thrown under the bus or thrown into bankruptcy. The way this is done is clever. Sometimes the sham is actually just a trade name masquerading as a company or a “trust.”

Trusts do not exist for legal purposes unless there is something of value entrusted to a person or company for purposes of administering that thing (res, in Latin) for the benefit of beneficiaries.

The place where many lawyers get hung up on that is that there exists an “allonge” or assignment of mortgage” or “assignment of beneficial interest” to, for example, U.S. Bank, as trustee for ABC-2006 certificates.

If you dig deep enough in discovery just under the surface you will find a “trust agreement.” The trust agreement never grants any powers to the administration of any affairs to the named trustee.  So U.S. Bank is actually prohibited from doing anything with the paper that is assigned to it. In fact, you will find that it lacks the right, power, or duty to even ask what is happening in “the trust.” So labeling it as trustee is merely window dressing and does not describe any trust relationship or position. But you can change all that and lose the case simply by your own reference to U.S. Bank as a trustee, which in turn admits the existence of a trust etc.

Note that the paper “entrusted” to the trustee is not for benefit of investors who, by the ay, are not beneficiaries of the trust. the securities broker is the beneficiary. And note also that the paper transfer of an interest in a mortgage is a legal nullity in all jurisdictions unless there is a contemporaneous transfer of ownership of the underlying obligation. This is further amplified by Article 9 §203 UCC, adopted in all US jurisdictions, that requires payment of value as a condition precedent for filing any foreclosure action.

Please also take notice of the fact that the purported delivery of the original note is mostly fiction since the original note was most likely destroyed shortly after the “Closing.” But even if delivery of the original note is deemed to have occurred, the possessor is neither a holder nor anyone else entitled to enforce it unless they received a delivery from someone who owned the underlying obligation or note.

This is where the Wall Street brokers have snookered the courts, the lawyers, and even homeowners themselves. A holder is someone who has possession and has the right to enforce. The case for foreclosure fails on this point unless, here it is again, the homeowner admits delivery or fails to contest it and allows the assumption of authority to enforce to operate without rebutting that presumption through discovery.

So when U.S. Bank or Bank of New York Mellon says it is appearing “not on its own behalf” you should take them at their word. They have no interest. Treating them as though they do have an interest only leads to the same series of conclusions described above causing the court of law to conclude that your defenses are both technical and dilatory. You have already admitted the case against you — so why are fighting it? That isn’t bias. It is the standard operating procedure. Courts are not exhibiting bias when they do that. They are following orders based upon centuries of legal precedent and statutes.

I have many followers who are adhering to the untenable notion that the courts are acting out of bias or even malice. They are not — even when the judge appears irritated. You must get off that tack which will gain you nothing and lead nowhere and get on board with a defense that actually does work, based on the facts and existing law. Getting angry with me for saying that homeowners are losing their cases rather than “banks” winning the case is a failure to recognize the fact that few people are able to make sense out of the process called “securitization” — a process that never actually happened in residential transactions with homeowners.

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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.
*

DID YOU LIKE THIS ARTICLE?

Nobody paid me to write it. 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 fee you can afford.

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

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

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: burden of persuasion, burden of pleading, BURDEN OF PROOF, discovery, Discovery -Subpoena, education, evidence, expert witness, Fabrication of documents, foreclosure, foreclosure mill, forensic investigation, investment banking, Investor, jurisdiction, legal standing, TRIAL OBJECTIONS, trial strategy, TRUST BENEFICIARIES, trustee | 4 Comments »

Repurchase agreements only advance the myth that loans were purchased in the first place.

Posted on December 14, 2020 by Neil Garfield

Investors would do much better if they stopped litigating the duty to enforce repurchase agreements. The repurchase agreement is void because there was no purchase. There are better claims to make that are more easily proven.

Homeowner litigants need to have more courage and attack the existence and ownership of the underlying alleged obligation much more explicitly and directly. They will be pleasantly surprised. While they will never get an admission that the whole affair is a scam, they will be able to raise the inference and thus limit the evidence in court that would ordinarily be allowed to prove the existence, ownership, and enforceability of what the claimant says is an unpaid debt. The key to winning any defense narrative is establishing insufficiency of the evidence.

As I stated in 2006 on TV, radio and articles published in many news outlets, both homeowners and investors should get on the same page. This was a sham. Investors probably can become creditors if they ask the court for a declaration of rights and maybe even appointment of a receiver. The debtors would be the Wall Street firms and possibly even homeowners — although not to the full extent of the purported obligation to repay the compensation paid to homeowners for assuming concealed risks.

see https://www.nationalmortgagenews.com/opinion/will-cmbs-litigation-be-the-new-rmbs-litigation

This is how the legal system became twisted beyond recognition in dealing with claims arising from investors, homeowners, and GSEs. There was a faulty and totally erroneous assumption (in most cases) that there was ANYTHING to buy or sell.

Wall Street banks have successfully relied upon complexity to force everyone else to rely on a single source for explanation of the falsely proclaimed “securitization” process. That single source is Wall Street. As long as we are only getting our information from the perpetrators of this financial terrorism we will be paralyzed.

Now this is spilling over to commercial transactions where some securitization actually happened. As between banks it was called “syndication” of loans, but when they get outside investors to take a piece then it is called “securitization” because each investor gets some paper document proclaiming them to be the owner of part of the loan debt, note, and mortgage.

That never happened with residential loans. No investor ever purchased a share of any loan. No Wall Street securities brokerage firm (aka “investment bank”) ever established, maintained or sold any homeowner obligation. But the Wall Street firms did pretend to sell the note and mortgage, albeit without any conveyance of the alleged underlying obligation.

A paper transfer of an asset is evidence of transfer, but it is not the actual transfer. So homeowners can ask for proof of payment of value for the underlying obligation (see Article 9 §203 UCC) to rebut the appearance of a transfer. A transfer of a mortgage without transfer of the underlying obligation is a legal nullity in all 50 states, as it should be.

And unless Wall Street wants to tell us that such transfers were gifts, then those “purchases” were never completed because there was no payment of value one exchange for a conveyance of ownership of the alleged underlying obligation. This is one of the finer points that Wall Street is exploiting. They may point to the movement of money or value — but that movement did not result in a transaction in which an owner of the obligation (i.e.e someone who paid for it) was paid value for the obligation and executed a transfer document “for value received.”

Of course, the underlying obligation had been extinguished contemporaneously with the origination or acquisition of the obligation — because nobody wanted to be left holding the bag. Any entry on the accounting ledger of any entity that established the obligation as an asset purchased for value would make that entity liable for violations of lending laws. And nobody wanted to suffer a real loss if the homeowner failed to make scheduled payments to pay off a nonexistent debt.

So nobody wanted to own any debt from homeowners. And they didn’t need to own anything. The securities scheme was not securitization of any homeowner debt. It was a much larger scheme that used homeowner transactions only as an outside reference point for data reporting in the sole discretion of Wall Street firms who were the bookrunners in each scheme.

The securities were bets — not evidence of ownership of anything. The sale and trading of such securities, combined with insurance and hedge contracts produced so much money that the homeowner transaction became irrelevant excepts as a reference point for data. So everyone got paid in full and then some. Nobody needed to own any homeowner obligation and the fact that they didn’t own the obligation would not stop them from pursuing enforcement despite the lack of ownership.

In order to really sell an asset, you must own it. In order to own it you must pay for it. In order to transfer ownership of the asset, you must transfer the actual asset not just a piece of paper that talks about the asset. It is possible that some payment of value exchanged hands in which there was a reference to both residential and commercial loans. But in residential transactions with homeowners, it is mostly NOT possible that any underlying obligation was transferred (even if it appears to have been “sold”).

So “repurchase agreements” for bad loans were in fact a misnomer and perpetuated the myth that securitization of residential loans actually occurred. Litigation over rights that do not exist is a farce. But that is exactly where the courts are stuck. This is not a failing of the courts. It is the failure of litigants to bring the true facts to the court’s attention.

This failure arises from the lack of understanding of the process that Wall Street is calling “securitization.”

Litigants need to have more courage and attack the existence and ownership of the underlying alleged obligation much more explicitly and directly. They will be pleasantly surprised. While they will never get an admission that the whole affair is a scam, they will be able to raise the inference and thus limit the evidence in court that would ordinarily be allowed to prove the existence, ownership, and enforceability of what the claimant says is an unpaid debt. The key to winning any defense narrative is establishing the insufficiency of the evidence.

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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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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: burden of persuasion, burden of pleading, BURDEN OF PROOF, CORRUPTION, discovery, Discovery -Subpoena, evidence, Fabrication of documents, investment banking, Investor, Presumptions, prima facie case, securities fraud, sham transactions | 1 Comment »

After Complaints to AG and CFPB Follow UP!

Posted on December 1, 2020 by Neil Garfield

If you are not going to follow up on complaints to your attorney general or the CFPB, then you shouldn’t have filed the complaint in the first place. If you are not going to follow up on demand for discovery, don’t bother filing them.

The simple truth is that they never answer the question. They simply use the opportunity to propagate the lie that a loan was securitized when in fact no sale of the loan ever occurred.

Most people and many lawyers fail to recognize a simple legal strategy that is available to them, to whit: that the failure to respond to simple basic questions about The ownership and existence of the underlying obligation open the door for a clear win for the homeowner.

 

Your opposition is simply following the usual playbook. They are missed directing your question. And you should point that out to the AG office or CFPB after you file the complaint.

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The basic thrust of your question is the identification of the creditor who maintains an account receivable for the underlying obligation, and whether the Obligation still exists.
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Their answer Is that the word salad that they are using to label a virtual creditor (if it exists as a legal entity), is the note holder. You were not asking that. And if you did ask that question you would still be asking the same question — how did they become the “holder.”
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Remember that a holder is someone in possession of the note with the right to enforce it. What everyone seems to forget is to ask the question of how the party in possession of the note received the right to enforce (which can only be granted by the party who owns the obligation or who represents someone who owns the obligation).
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And remember nobody gets to own an obligation just because they say so. In order to own an obligation, a party must have entered into a legally recognizable transaction in which they purchased it for value pursuant to Article 9 §203 UCC as adopted by all 50 states. All states also recognize that a purported conveyance of an interest in a mortgage without a conveyance of ownership in the underlying obligation is a legal nullity. 
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Most states allow a rebuttable presumption arising from the possession of the note. The legal fiction adopted in most states is that if you have the note in your possession, or at least if you claim to have a note in your possession, that there must’ve been a delivery of the physical note along with the authority to enforce it.
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Homeowners who fail to rebut this presumption lose their case and their home.
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Homeowners who fail to understand legal procedure do not understand that the inability of the opposition to provide legally required answered to the basic questions about existence and ownership of the underlying obligation can easily be used as the basis to rebut that presumption.
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At the end of that claimed transaction, the purchasing party must claim ownership. If it says it is the owner of the obligation, then it must have entries on its accounting ledgers and banking statements that show payment of value for the underlying debt and the establishment of a loan account receivable.
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It is possible that the entire Wall Street strategy has been based upon the gamble that nobody other than accountants understands double-entry bookkeeping — the only bookkeeping system legally recognized as the starting point of any claim of ownership or transaction about anything.

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Without real transactions and real entries in their ledgers, nobody can claim ownership of the obligation. And nobody can claim authority from the owner of the obligation unless that mysterious virtual creditor has entered into transactions and currently maintains ownership of a loan account receivable. 

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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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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: burden of persuasion, burden of pleading, BURDEN OF PROOF, CORRUPTION, discovery, Discovery -Subpoena, evidence, Fabrication of documents, foreclosure, foreclosure defenses, Pleading, Servicer, sham transactions, trial strategy | 3 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.

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

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

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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*
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, Eviction, evidence, Fabrication of documents, foreclosure defenses, investment banking, jurisdiction, legal standing, Pleading, Presumptions, prima facie case, Servicer, sham transactions | 4 Comments »

Why are conditions precedent so important in foreclosure cases?

Posted on November 6, 2020 by Neil Garfield

The mischaracterization of a condition precedent alters the burden of proof. (e.s.) If compliance with the HUD regulation is a condition precedent to foreclosure, the plaintiff carries the burden of proving substantial compliance with the condition when it presents its case, so long as the borrower has made a specific denial of the plaintiff’s allegation that it had satisfied all conditions precedent (e.s.).2 See, e.g., Chrzuszcz, 250 So. 3d at 769–70. But if compliance with 24 C.F.R. § 203.604 is an affirmative defense, “[t]he defendant, as the one who raises the affirmative defense, bears the burden of proving that affirmative defense.” Id. at 769 (citing Custer Med. Ctr. v. United Auto. Ins. Co., 62 So. 3d 1086, 1096 (Fla. 2010) (“An affirmative defense is an assertion of facts or law by the defendant that, if true, would avoid the action and the plaintiff is not bound to prove that the affirmative defense does not exist.”))Lakeview Loan Servicing v. Walcott-Barr. Judge Gross,  Concurring opinion.

Article 9 §203 of the Uniform Commercial Code (UCC) has been adopted as state law in all 50 states. It states that a claimant must have paid value for the underlying debt before seeking enforcement of a security instrument and it states that this is not mere guidance. It expressly states that it is a condition precedent to any attempt to enforce the security instrument (e.g. mortgage or Deed of trust).

The reason this is important is the technical construct of the burden of proof. If the homeowner denies that all conditions precedent have been satisfied then it is the claimant who must prove that all conditions precedent must be satisfied. Since one of those conditions precedent is the payment of value one exchange for ownership of the underlying obligation, a proper denial (answer in judicial cases) is sufficient in those cases to require the foreclosure mill to prove the payment of value. there are no exceptions.

In non-judicial foreclosures, this issue is muddied and its application is potentially unconstitutional. That is because the homeowner must file the lawsuit and declare that the foreclosure mill and its “client” failed to satisfy conditions precedent including the state statute adopting Article 9 §203 UCC.

In judicial foreclosures, the foreclosure mill will most likely be unable to actually prove that anyone paid value for the underlying obligation. The homeowner can seal the doom of the foreclosure mill simply by aggressively pursuing discovery seeking proof of payment. In non-judicial foreclosures, the homeowner must rely on discovery because the foreclosure has not made any allegations and therefore has nothing to prove.

Many lawyers and pro se litigants get confused in applying these “technical” requirements. The foreclosure mill will always rely on allowable legal presumptions arising from the apparent facial validity of notes, allonges, mortgages, and assignments. If the document is indeed facially valid then the presumption is that it can be admitted into evidence as both relevant and as proof of the matters asserted in the document — namely that the mortgage or note has been transferred. but you will rarely find an instrument that recites that the underlying debt was transferred. that is where legal presumptions enter the picture.

So the first thing a homeowner must do is challenge whether the document is facially valid. the answer to that often comes in the signature block where the actual party and their authority is unclear without parol evidence. If that is the case, then the document is not facially valid. Therefore no legal presumptions arise from facial validity. If the attack on facial validity fails then the homeowner must counterattack the evidence, which is now admitted, by rebutting the legal presumption, to wit: that no value was paid. That is done in discovery where the failure to respond to the discovery can if pursued correctly, lead to the conclusion that no such payment occurred. The condition precedent fails and the homeowner wins.

This is technical but not a technicality in the lay sense of the word. In the national code preceding the UCC and for centuries before it, forfeiture of property — especially homestead property — was considered to be a draconian remedy where only money was involved.

So it evolved that while you could get judgments for debts, you could not execute that judgment by selling the debtor’s property unless you had actually paid for the debt. That is why there are so many differences between Article 3 UCC and Article 9. Mortgages are not negotiable instruments.

But even with notes the fact that a claimant alleges possession of the original note does not mean they actually have it. they must prove it. And the fact that they possess it does not mean that they have the right to enforce it. But possession raises the presumption of the right to enforce. This is another area of mistakes and errors by homeowners, lawyers, trial judges, and even appellate judges.

The right to enforce can ONLY come from the one who owns the underlying obligation OR, under Article 3, someone who paid for the note in good faith and without knowledge of the maker’s defenses. There is no law in existence that will confirm ownership of the debt without payment — but payment is often presumed. So rebutting the presumption is key to winning foreclosure cases.

The absence of knowledge and use of these legal precepts is fatal to efforts to defend one’s home from unlawful seizure and foreclosure. The presence of knowledge is no guarantee of results but it raises the likelihood of a successful defense to highly probable.

BOTTOM LINE: It is not enough that you know the opposition never paid for the underlying debt. You must either force them to prove payment or prove they did not. The only other possibility that produces the same result is revealing that the opposition should not be permitted to submit evidence of ownership or authority over the debt because they refused or failed to respond to discovery — but that requires aggressive motion practice to succeed.

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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 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. Inthe 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: burden of persuasion, burden of pleading, BURDEN OF PROOF, foreclosure, foreclosure defenses, foreclosure mill, Motions, Pleading, Presumptions, prima facie case, sham transactions, TRIAL OBJECTIONS | 1 Comment »

Trusts, Trustors, Settlors and Fake REMIC Trusts

Posted on October 28, 2020 by Neil Garfield

All trusts that are legally recognized as such have the following basic components: the trustor/settlor who (a) executes a written trust agreement and (b) conveys property into the name of the named trustee to hold and manage the conveyed asset(s) for the benefit of named beneficiaries. So the three basic components are (1) property (the res), (2) a trustor/settlor, and (3) beneficiaries. Pooling and servicing agreements when read closely reveal in all cases that they are missing all three components.

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Trustees only exist in relation to a defined trust. A trust may technically exist if it is written down on paper. But it has no legal existence in court unless there is (a) something in it and (b) that something is relevant to the dispute being litigated in court. If it has no legal existence in court then the presumed powers of the trustee are irrelevant. The trustee’s power over claims or property are only as great as what is legally existing within the trust. That means that someone who owned an asset transferred it to the name of the trustee to hold in trust for the benefit of specific beneficiaries. In no case that I ever examined did such a transaction ever take place in connection with REMIC trusts or residential loans.

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Several legal malpractice suits have been based upon the failure of the lawyer to advise his/her client that the trust that has been drafted and executed is still completely worthless if the trustor does not transfer assets into the trust. The beneficiaries find out the hard way that the trust may have indicated an intent to distribute certain assets to them, but if there is nothing owned by the trust, they get nothing. It’s like forming a corporation in whose name no business is ever done. It doesn’t matter that the intent of the founder of the corporation meant to conduct business in the name of the trust.
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The corporation, like a trust, is a legal fiction equivalent (see Citizens United) to a legal person. That legal person cannot legally operate or own a car, directly or indirectly even through employment of a human, unless it legally buys the car and registers and insures it in accordance with state law. If the car gets into an accident then the person driving it is the one who will get sued because unless you can show that the person driving it was doing so at the behest of the corporation that did not own it, the corporation did nothing at all.
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Going back to the original question, the REMIC Trust exists on paper and is either regarded as inchoate (sleeping) or nonexistent, depending upon state law. Being named as trustee of such a trust conveys no power over anything except for what has been conveyed by a trustor/settlor to the trustee for the express purpose of holding and managing the asset for the benefit of named beneficiaries. While there are several references to things that might happen in the future, no such conveyance is ever recited as an accomplished fact.
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It therefore follows by simple logic that if a servicer is claiming the right to administer, collect or enforce a debt, it must be doing so on behalf of a legal person who is entitled to such administration, collection and enforcement. If the company claiming the label of “servicer” is claiming it is empowered by the trustee of a REMIC trust, then that trustee must have power over the asset (i.e., debt, note or mortgage or DOT). If a Bank party is claiming to be a trustee over the asset, then the asset must have been bought, conveyed, sold to the t trustee to hold and manage in trust for the benefit of beneficiaries. Conveyance of an interest in a mortgage or other encumbrance requires that the grantor legally own it and that the party receiving it pay value for it.
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I have read the actual trust agreements that exist far from prying eyes of foreclosure defense lawyers. They specifically acknowledge that the trustee is getting, in name only, a conveyance that is (a) worthless since it does not include conveyance of the underlying obligation and (b) to hold for the sole benefit and subject to the direction of the investment bank that originated the securitization scheme. The investors who buy certificates are unsecured creditors, not beneficiaries.  I remind the reader that no such securitization scheme ever securitized the debt, note or mortgage of any residential homeowner.
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BOTTOM LINE: ASK FOR THE ACTUAL TRUST AGREEMENT — AND DON’T ACCEPT THE ARGUMENT THAT IT IS THE PSA.

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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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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: burden of persuasion, burden of pleading, BURDEN OF PROOF, CORRUPTION, discovery, Discovery -Subpoena, evidence, foreclosure defenses, Investor, MBS TRUSTEE, Pleading, Presumptions, prima facie case, Servicer, TRIAL OBJECTIONS, TRUST BENEFICIARIES | 2 Comments »

What to do if the foreclosure mill refuses to give you an answer about ownership of the “loan”

Posted on October 24, 2020 by Neil Garfield
Summer Chic write me an interesting email and I wrote back. She poses a question that summarizes the entire situation:
She wrote:

Example: PennyMac claimed that they PURCHASED my loan on May 2, 2019  from someone whom they cannot identify. The financial statements from a non-identified company show that somebody “established a NEW loan” on May 9, 2019. Not a single word about the sale

Here is what I wrote back:
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As unusual PennyMac (or Ocwen or whoever) claims that it purchased a specific loan (usually in bulk). So we all know that a claim is good for pleading but litigation is not about “because I said so.” It’s about proof as admitted by the judge.
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In this case the discovery question is simple: who is the party from whom you acquired ownership of the subject loan in exchange for payment of value? They can’t answer that because no such person or entity exists. When you say “they cannot identify” does that mean you have submitted formal court discovery to them and they failed or refused to answer?
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If you mean that you have asked by phone or standard letter and they couldn’t or wouldn’t say who they paid, that fact — the non answer — will have very little legal probity in the case.
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If you mean that you asked in a Qualified Written Request or Debt Validation Letter, then you have invoked administrative process. Failure to answer that question is a failure to establish the single most important question of the case — is the claimant the owner of the underlying obligation (because it paid real value in exchange for a conveyance of ownership of the subject debt, note or mortgage (DOT)? That is, after all their claim if they are claiming ownership or claiming purchase.
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If the named claimant is the owner of the underlying debt then the claimant is the owner of the loan account and can claim a financial loss resulting from nonpayment by the homeowner. Since they have suffered financial damage they are entitled to redress through the courts and that includes judgment on the debt, judgment on the note and judgment on the mortgage (or all three).
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If the named claimant is NOT the owner of the underlying debt then the claimant is NOT the owner of the loan account and cannot claim a financial loss resulting from nonpayment by the homeowner. Since they have not suffered financial damage they are not entitled to redress through the courts and they have no right in law or equity to a judgment on the debt, judgment on the note and judgment on the mortgage (or all three).
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So if administrative process in invoked and they refuse to answer (always the case) then you file complaints with the CFPB and state AG that says, in summary, I am being coerced into a relationship with PennyMac despite the fact that they will not reveal any transaction in which it acquired ownership of my obligation. PennyMac is neither my original lender or table lender nor a successor to anyone who was the original lender or table lender. Its response is required under applicable law. They won’t answer or they are admitting informally that they are unable to identify the transaction except by date but without any information about the “seller” whom they say they cannot identify.
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Lying to AG and CFPB carries some fairly hefty penalties so the banks try to steer clear of flat out lying to those law enforcement agencies. So you usually will find inconsistencies between their answer to the CFPB complaint and what they have previously sent you. You can use those effectively in court as admissions against interest. There will always be inconsistencies because none of what they are saying is or ever was true. But it isn’t up to the judge to dig. It is up to you as litigant to put these inconsistencies squarely in the face of the judge and be able explain in clear persuasive language why this is important.
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If you mean that you asked in formal court discovery, that is an entirely different story. That fact that you asked is relevant. The fact that they didn’t or couldn’t answer is relevant.  And the fact that they failed or refused to answer even after the court entered an order compelling the answer is relevant because you file a motion for sanctions asking for monetary penalties and striking their pleadings.
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Then after they still don’t produce the answer you are in the very strong position of filing a motion in limine — unless the court has already entered an order striking the pleadings of the claimant.
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You cannot pursue a claim if you are unwilling to say how you got hurt. If you are claiming loss from nonpayment you must show entitlement to payment. Otherwise nonpayment is irrelevant. A quick summary of the law is that if the inferences and presumptions arising from allegations of the complaint or exhibits are properly challenged, the homeowner is entitled to rebut those inferences and presumptions.
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But the rebuttal does NOT consist of proving that the claimant does not own the debt, note and mortgage. The rebuttal arises when court rules prevent the claimant from introducing any evidence at trial that they own the debt, note or mortgage. So even if they did own it, and even if you did owe the money, they would still lose because they had not obeyed court rules.
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The fact that a “new loan” seems to have appeared is not dispositive. If there really was change of ownership it is perfectly acceptable for the new owner to change the labels. But more importantly it might be a clue. The new labels might be an indication that the loan data has been included in multiple “portfolios.” Although none of the portfolios consist of anything more than data about the loans instead of ownership of the loans, they all represent different securitization schemes. By challenging the current portfolio and demanding answers to questions about transfers of the loan you can uncover the fact that more than one “implied trust” is being named by underwriters and foreclosure mills as the successor lender.
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Just remember the paperwork introduced as exhibits to the foreclosure complaint or discovery or at trial in most cases is NOT facially valid because it requires the reader to pursue information that is not in the public record. A big error is NOT challenging the facial validity of a document. Failure to do that either waives many of your defenses or makes it a more difficult uphill climb.
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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.
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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.
*
Please visit www.lendinglies.com for more information.

Filed under: burden of persuasion, burden of pleading, BURDEN OF PROOF, CORRUPTION, discovery, Discovery -Subpoena, evidence, foreclosure defenses, Pleading, Servicer, sham transactions, TRIAL OBJECTIONS, trial strategy, Unlawful Detainer | Tagged: | 20 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.
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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.
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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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*
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.
*
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 »

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.
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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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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)
*
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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.
*
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 »

Lack of Research and Knowledge About Court Procedure and Rules of Evidence Will Bury You

Posted on October 7, 2020 by Neil Garfield

There are many well intentioned people and lawyers who go into court to contest foreclosure cases with the expectation that the foreclosure mill must prove ownership and status of the loan. In plain language they don’t need to prove that because of a legal fiction called a “legal presumption.” That is a shorthand way of approaching evidence.

It creates conclusions of facts based upon common knowledge or legislative intent regardless of the truth of the matter. If the opposing party wants a different conclusion the opposing party must seek to rebut the presumption.

Rebutting the presumption is accomplished in only one possible way in foreclosure cases.

The homeowner will NEVER have actual evidence that the debt does not exist as a loan account on the books of any entity and will never have direct evidence that is admissible in court that the named claimant has no claim. So that is not a possibility. And arguing the case as if you did present such evidence is a fool’s errand.

But the same goal can be achieved if the foreclosure mill refuses to respond appropriately to direct questions in the discovery process. It is or appears to be an uphill battle but the key is merely persistence.

see https://livinglies.me/2020/10/02/boilerplate-answers-to-discovery-wont-cut-it-if-plaintiff-does-it-they-lose-the-claim-if-defendant-does-it-they-lose-the-defense/

  1. If a facially valid document is merely shown, it is presumed (at least at the pleading stage) that the original exists — even if it doesn’t. (see discussions about custom and practice in the industry to shred the original notes concurrent with the loan closing).
  2. A statement by affidavit or in testimony that the note is the original note signed by the maker (homeowner) is sufficient to get a facially valid document into evidence as the original even if it is not the original and was reconstructed expressly for trial to make it appear like an an original.
  3. Possession of that “original” is presumed to be evidence of delivery even though the note is a reconstruction.
  4. Delivery is presumed to convey a right to enforce even if there is nobody who could grant such right.
  5. The right to enforce gives rise to the presumption that the ownership of the underlying debt has been conveyed even though nobody paid for it — which is the only way you can legally own the underlying obligation.
  6. The presumed conveyance of ownership of the underlying obligation is the only thing that allows anyone to  foreclose on the security instrument pursuant to the state adoption of Article 9 §203 of the UCC — but all of that is legally required to be presumed in the absence of any rebuttal.

They don’t need to prove it. Under the rules of evidence the presumptions exist that they are who they say they are and the debt is what they say it is. YOUR burden is to show that they refuse to respond to inquiries about the status of the debt and its ownership. But it is more than that. You can’t just ask, you must ask in a venue where they are required to answer. This exactly where most lawyers and pro se litigants dig their own legal graves.

And the failure to respond won’t get  you anywhere unless you get a court to agree with you and enter an order commanding them to answer. And not even that will be conclusive until you get an order on sanctions after they violate the order compelling response. And the deal is not sealed until you get a definitive ruling on a motion in limine that says that due to their refusal to respond, they are prohibited from introducing any evidence of ownership or status of the debt at trial (i.e., motion in limine).

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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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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. Inthe 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: burden of persuasion, burden of pleading, BURDEN OF PROOF, discovery, Discovery -Subpoena, Fabrication of documents, foreclosure defenses, Motion Practice and Discovery, Pleading, TRIAL OBJECTIONS | Tagged: , , , , | 3 Comments »

Boilerplate Answers to Discovery Won’t Cut It. If Plaintiff does it, they lose the claim. If Defendant does it, they lose the defense.

Posted on October 2, 2020 by Neil Garfield

see https://www.natlawreview.com/article/district-court-requires-plaintiff-to-disclose-evidence-about-noneconomic-loss

I have been writing, lecturing, and just saying the same thing since 2006. Homeowners don’t need to prove anything. The objective in Foreclosure Defense is to prevent the claimant from pursuing their claim. If you are not willing to do all the necessary   work and to make certain you have it right, then you are not litigating, you are complaining. The strategy is accomplished by using the following tactics:

  1. Wordsmithing the right very specific questions and demands that go right to the heart of the case — the existence and ownership of the debt (loan account).  Both lawyers and homeowners seem to be shy about doing this because they are afraid of receiving an answer they won’t like. No such response it will be forthcoming. In fact no answer will be forthcoming and that is the point. The most they can ever do is obscure and evade. They do this with objections or with the responses that are meaningless and boiler plate.
  2. File a motion to compel along with a memorandum of law citing to relevant cases that are exactly on point.
  3. Get a hearing on the motion to compel. At the same time get a hearing on objections raised by your opposition. Prepare an order in advance of the hearing so the judge can see exactly what you’re asking for. The order should NOT specify punishment. It should only say that your motion is granted, that the following questions must be answered, and that the “bank” must respond to following requests for production must with the documents requested within ___ days. Prepare for the hearing in a mock presentation.
  4. Assuming you win on your motion to compel, having a lawyer in the courtroom representing the homeowner will greatly improve the chances that your lawyer will literally write the findings and rulings of the court. This will decrease the amount of wiggle room that the opposing attorney will try to insert.
  5. You might consider a motion to strike whatever response they file as being unresponsive to the discovery demanded, and contrary to the rules of civil procedure.
  6. There will still be no response — or no meaningful response. All they have are presumptions (not actual facts). You are entitled to rebut those presumptions by asking for facts. They must answer — but they won’t because they can’t.
  7. File a motion for sanctions. along with a memorandum of law citing to relevant cases that are exactly on point.
  8. Get a hearing on the motion for sanctions. At the same time get a hearing on any new objections raised by your opposition. Prepare an order in advance of the hearing so the judge can see exactly what you’re asking for. The order should specify punishments including (a) striking the pleadings (b) dismissing the foreclosure (c) raising the inference or presumption that the loan account does not exist for purposes of this proceeding (“law of the case”) (d) raising the inference or presumption that the ownership of the loan account cannot be established for purposes of this proceeding (“law of the case”) and (e) awarding the homeowner with costs and fees associated with the discovery dispute. It should say that your motion is granted, recite the history of bad behavior, and give them one more chance to purge themselves of contempt that by compliance with the order on the motion to compel within ___ days. Prepare for the hearing in a mock presentation.
  9. There will still be no response — or no meaningful response. All they have are presumptions (not actual facts). You are entitled to rebut those presumptions by asking for facts. They must answer — but they won’t because they can’t.
  10. File a motion for contempt of court along with a memorandum of law citing to relevant cases that are exactly on point.
  11. Get a hearing on the motion for contempt. At the same time get a hearing on any new objections raised by your opposition. Prepare an order in advance of the hearing so the judge can see exactly what you’re asking for. The order should specify punishments including (a) striking the pleadings (b) dismissing the foreclosure (c) raising the inference or presumption that the loan account does not exist for purposes of this proceeding (“law of the case”) (d) raising the inference or presumption that the ownership of the loan account cannot be established for purposes of this proceeding (“law of the case”). It should say that your motion is granted, recite the history of bad behavior, and give them one more chance to purge themselves of contempt by compliance with the order on the motion to compel within ___ days. Prepare for the hearing in a mock presentation.
  12. File a motion in limine along with a memorandum of law citing to relevant cases that are exactly on point.
  13. Get a hearing on the motion for in limine. At the same time get a hearing on any new objections raised by your opposition. Prepare an order in advance of the hearing so the judge can see exactly what you’re asking for. The order should specify that the claimant is barred from introducing evidence on the status or ownership of the debt and barred from introducing any evidence (testimony or exhibits) from which the court might apply presumptions of ownership, loss, right to enforce. It should say that your motion is granted, recite the history of bad behavior. Prepare for the hearing in a mock presentation.
  14. File a motion for summary judgment along with a memorandum of law citing to relevant cases that are exactly on point.
  15. Get a hearing on the motion for summary judgment. At the same time get a hearing on any new objections raised by your opposition. Prepare an order in advance of the hearing so the judge can see exactly what you’re asking for. The order should specify that judgment is entered because the claimant is barred from introducing evidence on the status or ownership of the debt and barred from introducing any evidence (testimony or exhibits) from which the court might apply presumptions of ownership, loss, right to enforce. It should say that your motion is granted, recite the history of bad behavior. Prepare for the hearing in a mock presentation.
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: burden of persuasion, burden of pleading, discovery, Discovery -Subpoena, evidence, foreclosure defenses, jurisdiction, legal standing, Motions, Pleading, Presumptions, prima facie case | Tagged: , , , , , , , | 18 Comments »

Just like I said: Megabanks are doing just fine despite economic downturn — at the expense of investors, taxpayers and homeowners.

Posted on July 21, 2020 by Neil Garfield

Major banks, including Citigroup, JPMorgan and Morgan Stanley used massive trading revenues to beat profit expectations despite the continued struggles of the United States economy during the coronavirus pandemic. Those trading units tend to perform best when markets are volatile, helping to guard the major banks against economic struggles.

see https://www.cnbc.com/2020/07/17/without-big-wall-street-trading-arms-regional-banks-lean-on-mortgages-and-fees-to-beat-earnings.html

Way back in 2006 and 2007 and when I first started publishing articles about the mortgage meltdown (before most people realized there was a meltdown) I reported that the major banks were siphoning off much of the wealth contained inside the U.S.

I said that these mega banks were parking ill-gotten gains off-shore in various assets, — frequently using  a tax avoidance scheme based in Bermuda. And I said that they would repatriate that money only when they needed to do so.  And because they had taken trillions of dollars, they would forever use it to consistently report higher earnings whenever they needed to do so in order to maintain the value of their stock.

I said that they would do it by reporting higher trading profits. They are reporting higher trading profits merely by creating false trades at their trading desks between fictitious entities in which one of the subsidiaries is the “seller” who is reporting a profit.

Sure enough that is exactly what is happening. Small and regional banks don’t have that “nest egg.” They must rely on old fashioned fees and interest to earn money. But the big banks are reporting “trading profits” to offset deficits in interest and fee income caused by the huge economic downturn caused by coronavirus.

Part of those trading profits also come from foreclosures. The proceeds go to the megabanks, who have retained little or no financial interest in the alleged loans much less any losses from the alleged default.

There was no default in any obligation owed to any creditor because there is no creditor who maintains an accounting record on which it claims to own any homeowner debt, note or mortgage by reason of having paid value for it in exchange for a conveyance of ownership of the debt, note or mortgage from one who legally owns it.

Simple common sense. If you don’t own the debt you have no reason or authority to mark it “paid” even if you receive the money.  Homeowners and their lawyers should stop taking that leap of faith in which they admit the existence of a default. A default cannot exist on an obligation in which there is a complete absence of a legal creditor. Homeowners didn’t create this mess. It was all the megabanks who made a fortune stealing from investors and homeowners.

A default is the failure to perform an obligation or duty owed to a particular person — not a failure to perform a duty owed to the world in general.

There could be many reasons for the absence of a legal creditor — including the simple fact that everyone has received sufficient payments and settlements such that nobody needs to step into the shoes of a lender which could produce liability for violations of lending and servicing laws.

IT SHOULD NEVER HAVE BEEN THE BURDEN OF HOMEOWNERS TO PROVE THE EXISTENCE OF THE REAL CREDITOR. There isn’t one and the banks and their lawyers have been laughing at us for 20 years over getting away with that one. 

It was the mega banks that created loans without lenders — i.e., transactions in which there was no legal person or entity claiming ownership of the obligation.

The banks are using smoke and mirrors. They claim (through third party intermediaries) a “default” in the obligation to pay a nonexistent creditor. The money they receive from foreclosure is pure revenue offset only by the fees they pay to the other intermediary foreclosure players who exist solely to produce profits for themselves and the megabanks.

And pro se homeowners and even lawyers are confounded by this system. They admit the basic elements of the claim even though the basic legal elements are missing.

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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: Bailout, boarding process, burden of persuasion, BURDEN OF PROOF, community banks, CORRUPTION, credit unions, foreclosure, foreclosure defenses, foreclosure mill, forensic investigation, investment banking, Investor, jurisdiction, legal standing, Mortgage, Motions, originator, Pleading, Presumptions, prima facie case, Servicer, sham transactions, standing | 4 Comments »

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