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.
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Neil F Garfield, MBA, JD, 74, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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CLICK HERE TO ORDER ADMINISTRATIVE STRATEGY, ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
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CLICK HERE TO ORDER TERA – not necessary if you order PDR PREMIUM.
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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 »

Destroying, Hiding or Fabricating Evidence: Doctrines Regarding Spoliation of Evidence

Posted on December 28, 2021 by Neil Garfield

The latest issue of the Florida Bar journal contains several interesting articles. One of them is entitled “Spoliation of Evidence and Non-party witnesses.” The author is Gary M Glassman, who is the attorney for Daytona Beach.

The major points of the article that I think are relevant to Foreclosure Defense litigation are that (A) spoliation has a very broad meaning and (B) the refusal to produce documents that are relevant to the case at Bar raises an inference in favor of the homeowner, and might even give rise to a cause of action for damages.

Foreclosure lawyers have long relied on the fact that they could stonewall request for information and then use fabricated documentation containing false information with impunity. But a proper document request during an open discovery period can itself be the subject of an affirmative defense or even a claim for damage to the homeowner’s ability to defend.

This enhances the relevance of having previously sent a qualified written request and a debt validation letter, together with a complaint to the CFPB and the state attorney general.

In judicial states, I think that it is possible and even probable that the court would sustain an affirmative defense consisting of both fabrication and spoliation. Combined with an action for damages under the FDCPA (potentially as a counterclaim) the homeowner could claim the inference that the missing documents would show that the exhibits to the complaint are false and fabricated. There is some pretty clear law in both Florida and California supporting this proposition.

In non-judicial states where the homeowner must initiate judicial action, one of the claim should be spoliation, along with fabrication.

The other point is the duty to preserve evidence. It is clear that a party that is used may not destroy or hide evidence and must produce such evidence when requested to do so in formal discovery.

One of the tactics employed by the banks is to hide information about the identity and last known address of relevant third parties like the “employees” or “independent contractors” who supposedly executed the documents upon which the entire foreclosure case rests.

Third parties have no absolute duty to maintain documents in their possession unless they know that the documents in their possession are relevant to pending legal claims and defenses. So the answer is that you want to give them notice and the best way to give them notice is with a subpoena duces tecum. This could include such companies as Black Knight and CoreLogic — not just individuals.

Asking for such information and not getting an answer is evidence of spoliation. Finding the “signor” with a private investigator is often very productive. In many cases, they deny ever signing anything. And they’re probably telling the truth.

The failure to provide such information is part of the doctrines utilized in claims o spoliation and the inability of the responding party to provide a satisfactory explanation for failing to produce the records raises, in and of itself, an inference that those records would show that the discovery requests establish a negative inference as to authenticity and validity of those documents — but, in my opinion, only if the discovery request is accompanied by requests for admissions that carefully track the request to produce which carefully tracks the interrogatories.

The bottom line is that spoliation is a recognized foundation for asserting that the opposing party has either acted or refused to act in a way that interferes with the ability of the homeowner to prove affirmative defenses or claims which resulted in substantial prejudice to the homeowner. This has not been previously applied to Foreclosure litigation. But I can think of no other area of litigation in which fabrication and spoliation are more relevant.

PRACTICE HINT: There is a significant difference — and  often overlooked —between the “entity” named as Plaintiff (or beneficiary in nonjudicial states) and the entity named or claimed to be a “servicer.”

In the context of this article, one should not assume that a mere request to produce is sufficient. The request to produce only has legal effect against, for example, U.S. Bank, N.A. if it is named as Plaintiff trustee in a judicial foreclosure or beneficiary trustee in a nonjudicial case. First, the request to U.S. Bank should be directed solely at records kept by U.S. Bank in its role of administering the affairs of a trust account in which there is a loan account receivable due from the homeowner. Second, the “servicer” should receive a subpoena duces tecum asking for the same records. All too often the “records” are “produced” by the “servicer” which is a response from a third party and not the claimant as plaintiff or beneficiary. 

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DID YOU LIKE THIS ARTICLE?
Nobody paid me to write this. I am self-funded, supported only by donations. My mission is to stop foreclosures and other collection efforts against homeowners and consumers without proof of loss. If you want to support this effort please click on this link and donate as much as you feel you can afford.
Please Donate to Support Neil Garfield’s Efforts to Stop Foreclosure Fraud.

CLICK TO DONATE

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Neil F Garfield, MBA, JD, 74, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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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: burden of pleading, BURDEN OF PROOF, discovery, Discovery -Subpoena, Eviction, evidence, foreclosure, foreclosure defenses, foreclosure mill, forensic investigation, Motion Practice and Discovery, Pleading, Presumptions, prima facie case | 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.
***
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.

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.
***
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.
*
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 »

You Can Use This As a Template for How I Would Respond in a Discovery Dispute — Especially with Wells Fargo, Fannie Mae and Wachovia as the Originator

Posted on December 14, 2021 by Neil Garfield

In a dispute between the attorney for the homeowner and the attorney for the alleged “lender”, there are a number of devices that are nearly universally applied across the country in order to ridicule and defeat the homeowner. The more you are aware of them, the better you will be prepared to deal with them.

Opposing counsel is instructed to accomplish several things (winning being the last of the things on his or her menu). First, the idea is to undermine the confidence of the homeowner and to undermine the confidence of the lawyer for the homeowner in any defense to the foreclosure. They do this by several tricks.

The main one is offering cash for keys. This says “You know we will win and you don’t have a chance, so get out now and we will pay you a couple of thousand dollars.” By doing that, they give the impression that the case has been evaluated and that the offer is somewhere within the realm of reasonability given the probable outcome. It isn’t and all my cases start this way — especially the ones where the judgment was entered for the homeowner.

The next one is offering modification which is basically saying “OK, if you recognize this transaction as real, we will offer you different terms.” The initial offer of different terms is virtually no change at all in the original terms but it gives hope that there will be a breather between now and when they return to foreclosure mode. It is about as attractive to the homeowner as the cash-for keys deal.

If you stick to your guns the offers will improve; most homeowners end up not resisting an offer that they think gives them enough relief that it isn’t worth proving or revealing that there is absolutely no corroborating evidence in the form of testimony on person knowledge, documents or receipts that support the apparent facial validity fo the documents being used to fabricate a claim against the homeowner on a non-existent loan account receivable.

Just be aware that acceptance of any offer in most instances is doing business with a thief in exchange for returning stolen property. From the point of view of the thief, he or she worked hard for that property and is entitled to compensation for the work performed. Anything less than that is a loss and if given the chance they will even sue for it. None of that is law but anyone can use legal process, even to make false claims. Such claims are deemed true unless properly contested.

So in a situation where the case is almost over the lawyer representing the homeowner is still hammering away at enforcing discovery.

The opposing lawyer is characterizing the effort as a desperate attempt to escape a legitimate debt and a using the lawyer and the homeowner of vexatious litigation —- i.e., using legal process improperly to gain an undeserved legal advantage. in other words, the attorney for the financial industry is accusing the homeowner, who has virtually no resources, of doing exactly what the foreclosure lawyer has done is continuing to do because he or she has the full backing of companies with infinitely deep pockets.

Discovery has been served and the response was objection and motions for protection. The homeowner’s lawyer filed a motion to compel compliance with the rules of discovery. The foreclosure lawyer filed a response saying that the homeowner was trying to relitigate the case, in a desperate attempt to avoid the inevitable loss of possession of the property using vexatious litigation strategies.

Here are my notes, with some edits:

I see several issues with the response filed by opposing counsel.
  1. I doubt that counsel has any written or oral authority to represent Fannie Mae that was granted by Fannie Mae.
    1. Fannie Mae would not hire the law firm unless they were making the direct rerpesentation ot the lawyer that they were in fact the owner of the properrty which title had been legally acquired. Since Fannie knows taht its name is being used in vexastious litigation against homeowners that reuslt in forecloure sales wherein the money proceeds are never paid to Fannie {same as REMIC trustees}, it would not make such a declaration and it would therefore never directly hire the law firm.
    2. And if push came to shove, I am virtually certain that anything represented in court to have been on behalf of Fannie Mae would be subject to Fannie claims of plausible deniability.
    3. But it is extremely difficult to raise this issue and get any traction directly. If there is a mediation Conference you may have an opportunity to ask about authority and then file a motion for sanctions for failure to appear. But I don’t think that this is possible at this stage in litigation.
  2. There is a growing national use of the attempt to squelch challenges by accusing the homeowner of vexatious litigation. These are actually being taken seriously by judges who are anxious to move cases off their docket. You need to be very careful about this issue. There is a recent case where the vexatious litigation issue was defeated by the homeowner without the assistance of counsel in California. But there are plenty of cases out there and which judges referred to a vexatious litigant which in all cases means a homeowner or the lawyer for the homeowner. Vexatious is anotehr word for annoying, so you need to reframe that. This idea exists because  of the presumption that the conclusion is already known and is inevitable. That conclusion is based upon a faulty and erroneous understanding of financial innovation from Wall Street that occurred 25 years ago.
  3. The pleadings filed by opposing counsel follow the playbook for the nation. It contains a recitation of facts or implied facts that only exist because of legal presumption arising from the apparent facial validity of documents that are uncorroborated, together with the effect of the presumptive validity of court orders that have previously been entered.
    1. Although we should always be careful about picking our battles, we should never accept or even suggest that we are accepting or ignoring the recitation of facts that are untrue and unsubstantiated.
  4. The first thing you need to deal with is that you are entitled to discovery and the discovery is intended to reveal rather than obscure relevant issues. But it is opposing cousnel’s instruction to obscure and refuse to reveal anything. As usual they will accuse the hoemowner of doing exactly what they are doing.
    1. It might be worthwhile to articulate that the defense narrative is based upon in-depth investigation, research, and analysis from experts in the securitization of debt — And that they have expressed the definite opinion that nearly everything assumed by opposing counsel in his opposition to the motion to compel discovery is not only uncorroborated but also untrue.
  5. The entire case presented against the homeowner rests completely on uncorroborated presumptions regarding the existence and transfer of an alleged obligation owed by the homeowner to Wells Fargo bank and then Fannie Mae.
  6. While there is ample evidence of a merger between Wells Fargo Bank and Wachovia, the originator of the transaction with the homeowner, there is no evidence whatsoever that Wachovia ever transferred any interest and the transaction that had been conducted with the defendant homeowner.
  7. The fact that there has been a merger does not mean that we know the terms of the merger or that anything relating to the defendant homeowner was included in the terms of the merger.
  8. There is nothing corroborating the presumption that Wachovia was the owner of a loan account receivable on accounting ledgers owned and maintained by Wachovia at the time of the merger, much less that Wachovia intended a transfer of ownership of the loan account to Wells Fargo bank.
  9. Indeed, the experts report that it is a common practice of Wells Fargo bank to assert its ownership over the loan account at the beginning of a foreclosure action and then to admit later that it is only a servicer.
  10. But its role as a servicer is also uncorroborated and probably untrue. The fact that it produces reports does not mean the data or the report was generated as a result of receipts and disbursements by Wells Fargo bank to or from any debtor or creditor.
  11. And obviously if Wells Fargo employees did not actually receive and disburse money relating to a loan account receivalbe, they could not have recorded such receipts or disbursements with personal knowledge. These are the issues that are being explored by the demand for discovery.
  12. If the defendant homeowners defense narrative is correct, then the fact that she had lost in litigation, is merely an assertion of conclusions previously reached by a court that had been misled by counsel.
  13. Opposing counsel seeks to argue that the defendant homeowner is not entitled to any answers because of the production of documents. But those are the precise documents that defendants experts assert as memorializing nonexistent transactions. Defendant hoemowner is merely testing them through disvovery. If they are not true they should never have been presented and a fraud has been committed upon the court. The foreclosure porocess, sale and now demand for possession must be dimsissed and vacated as the may be.
    1. The unwillingness of opposing cousnel to provide a direct response to direct discovery demands is a tacit admission that counsel is unable or unwilling to provide corroboration that transctions supposedly emorialized on the documents presented to the court and relied upon by the court
  14. Opposing counsel keeps referring to a “mortgage loan” when he should be referring to mortgage documents. Defendant homeowner admits to executing mortgage documents, but now, based upon factual investigation and research, denies the existence of a loan account at any time material to these proceedings.
    1. Opposing counsel seems to be aware of the problem and is attempting to curate by constantly referring to “the mortgage loan” rather than “The mortgage documents.”
  15. Experts for the defendant homeowner have revealed that Wachovia was primarily engaged in the origination of transactions with homeowners and perspective on motors for the exclusive purpose of supplying data to investment banks for the sale of securities. In this process, the loan account was retired because it was paid off contemporaneously with the closing of the transaction with the defendant homeowner.
    1. If the loan account was not retired in a securitization process then defendant homeowner concedes that the foreclosure was properly executed. But if it was retired then the foreclosure was not properly executed.
    2. The supposed presence of Fannie Mae gives rise to the presumption that the transction is and was always subject to claims arising out the issuance of securities, d epsite the fact that such securiteis offered now ownership in any alleged liability, obligation or debt owned by the homeowner.
      1. There is no evidence that Fannie ever paid value in exchange for ownership of the underlying obligation as requried by statute as a condition precedent to enforcement. This is also required for jurisdicition (see below).
  16. The discovery demanded by the defendant homeowner seeks to clarify this issue. If in fact the alleged obligation was purchased and sold on the secondary market or otherwise subject to a transaction in which no loan account survived on an accounting ledger of any company, it follows that nobody suffered any financial loss arising from ownership of such an account, despite various attempts to collect money from the defendant homeowner.
  17. Such a true fact pattern defeats the constitutional requirement for case and controversy and the jurisdiction of any court to hear the case much less dedicate anything. It also follows that no party claiming to represent or implying representation of a creditor owning the nonexistent loan account, could have any authority to declare any default, nor any authority to claim the right to administer, collect or enforce any alleged obligation arising from the nonexistent loan account.
  18. Opposing counsel is correct when he refers to the desperation of defendant homeowner. She is anxious to retain possession and to regain title to a homestead that was putatively taken based upon false and misleading representations made to her and the court. Anyone faced with losing their homestead or their property and their lifestyle would be desperate to foil the attempt. It is up tot he court to rasie cofndience that if the attemopt succeeds it will be to pay a party who will receive the proceeds of forced sale and then apply those sums to reduce the loan account receivable. This is not the case at bar.
  19. Defendant homeowner merely seeks answers to the most relevant questions that could possibly exist in a foreclosure action. Was there an existing loan account receivable maintained on the ledger of Wells Fargo bank or Fannie Mae at the time that the default was declared and the action for Foreclosure was commenced? If the answer is no, then the court was misled and entered orders and judgments that are voidable or subject to being reconsidered and vacated. If the answer is yes, then the dispute is over.
  20. Opposing counsel is concealing his contempt for court process by clever wording accusing and characterizing the attempts by the defendant homeowner to reveal the ruth as repeated attempts by the defendant homeowner to relitigate the case based on the same facts. This is not true.
    1. Defendant homeowner wants to reveal that there were no corroborated facts presented in support of the claims against her and that in fact no such facts could have been presented because they did not exist.
    2. She seeks to determine the nature and status of the transaction that was originated in 2006, and the claims arising from implied transfers that were never documented but are presently argued before this court.
    3. Not even teh merger agreement has been proffered (much less ordered and accepted) into evidence nor any testimony or affidavit from any witness with personal knowledge that the alleged merger effectively and intentionally transferred the ownership of the subject alleged transaction balance (i.e., the loan account receivable) from Wachovia to Wells Fargo.
  21. Opposing counsel absolutely refuses to simply say or even argue that Wells Fargo was the creditor who owned the loan account receivable or that FNMA had any financial interest in the transaction as owner of the transaction conducted with the defendant homeowner in 2006.
  22. Dodging the question does not make the question wrong. Nor does it imply that that answer is obvious. Opposing counsel is arguing a narrative that has no corroboration in any evidence consisting of testimony from any competent witness with personal knowledge, or any document that can survive any scrutiny when tested for validity as to representations of a transaction such as purchase and sale of the alleged underlying obligation as required by Article 9 §203 of the Uniform Commercial Code adopted verbatim under state statutes.
  23. The alleged possession of the promissory note is in fact, as opposing counsel has argued consistently, sufficient to obtain a money judgment on the note.
    1. It is also sufficient for the court to infer that the holder of the note is the owner of the underlying obligation for purposes of pleading in a foreclosure action.
    2. But in the proof of the matters asserted, it does not rise to the level of a prima facie case establishing such ownership when the court conducts a final hearing on the evidence.
      1. Possession of the note is an exception to the rule that the holder may obtain judgment without any financial loss to the note holder being stated or proven.
      2. In such cases, it is enough to establish that the maker of the note failed to make a scheduled payment.
    3. But the Article 3 UCC exception does not remove the basic underlying Article 9-203 condition precedent to enforcing a security isntrument (mortgage). The mortgage may not be enforced without paying value for the underlying obligation. The protection of homestead rights is inviolate and may (under current law) only be subject to forfeit in the event that the owner of the underlying obligation is the complaining party.
      1. In the case at bar, the complaining party neither (a) alleges nor proves such ownership of the underlying obligation nor (b) alleges or proves that anyone is or was a holder in due course — which would mean by definition that it had paid value for the underlying obligation (or at least the note)
      2. The legislature has spoken and this court has been led to believe that the statute has been satisfied. Upon solid information and belief nobody who has been represented as being the complaining party either did or could have satisfied the condition precedent in state law adopted Article 9 §203 UCC. This was concealed from the court and from the homeowner. If it isn’t true then no judgment, no sale, and no demand for possession should be granted.
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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.
*
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 pleading, BURDEN OF PROOF, discovery, Discovery -Subpoena, evidence, expert witness, Fabrication of documents, jurisdiction, legal standing, MODIFICATION, Mortgage, prima facie case, sham transactions, standing | Tagged: , , , | 3 Comments »

Here is How Wall Street Smoke and Mirrors Works

Posted on December 1, 2021 by Neil Garfield

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

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

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

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

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

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

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

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

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The banks covered up their activities by increasing apparent complexity in a fairly simple transaction — i.e., one in which someone would debit their cash or other asset account and credit the loan account receivable of a borrower. Such accounting never took place in most instances because none of the parties involved in the falsely labeled “origination” was anything other than a placeholder name through which money could be delivered to a closing agent for disbursement to or on behalf of the homeowner or consumer.
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The investment banks have used the placeholder name function at many levels each of which appears to have facial validity but lacks any connection to transactions in the real world. have spread out the functions.
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There are two categories. The first category (Tier 1) is the one that you see. This is the one that reveals the name of a company that is claimed to have some sort of representative authority. In the real world, it has no such authority and it performs no function. The second category (Tier 2) consists of companies that actually perform functions, but whose existence is concealed from the homeowner and from the Court. As well as almost all of the securitization infrastructures, tier one should be tier 2.
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As a matter of policy, prudence, and required risk management, none of the tier 1 companies are permitted to actually perform any financial service or accounting. They do not receive or disburse funds. Therefore they do not originate any data input regarding the receipt or disbursement of money.
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The tier 2 companies that actually perform the services are contractually bound to the intermediaries for the investment banks. The tier 1 companies who allow their names to be used on the letterhead of correspondence and notices (and payment history reports) have no contractual relationship with the investment banks who are avoiding vicarious liability for the mini intended and unintended violations of lending and servicing laws.
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Companies like CoreLogic, CoreLogic tax, Black Knight, FiServ, etc. are tier 2 businesses whose only allegiance, contractually and equitably, is to the investment banks. They are not controlled in any way by any tier 1 companies (including but not limited to companies claim to be a “servicer”). But they are controlled by the investment banks, who direct every action performed by every tier 2 company including law firms.
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Tier 1 companies are merely names acting as placeholders for the investment banks who distance themselves from the business of collecting and communicating with homeowners and other consumers who consider themselves to be borrowers, even if they are no longer borrowers because their loan account receivable has been retired through the receipt of money by the originators —- all of them. Yes, it is like organized crime but in all honesty, so is almost every capitalist enterprise. The structure though is not what creates the crime, it is the intent and effect that makes it illegal either in violation of civil or criminal laws.
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The purpose of all tier 1 companies is to create a mirage. The resulting illusion is filled in by individual presumptions that are not based on fact but rather based on apparent facial validity derived from fabricated documents containing false information — i.e., reporting or memorializing transactions that never occurred.
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Real transactions are concealed and underreported even to regulatory agencies. Such transactions are never disclosed to consumers and homeowners. In this world of illusions, apparent fascial validity has been Weaponized to create the erroneous presumption that a trust account exists, under the supervision of a trust officer, for a brand-name bank.
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The further presumption is that within that trust account is a loan Account receivable due from a particular homeowner. But in reality, there is no trust account, there is no trust officer, and there is no loan account receivable.
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Because of the complexity required to conceal the illegality of the securitization scheme, no information is offered to any homeowner or regulator that would alert them to the fact that fictitious labels are being attached to nonexistent accounts. And most homeowners and regulators lack the resources to investigate the actual money trail.
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So they rely upon the paper trail instead and that is the residence of moral hazard. You can say anything on paper, and it tends to be believed even if it would be met with skepticism if spoken aloud. The investment banks completely understand this dynamic and they have weaponized it to the point where they have established a national narrative with false labels resulting in the collection of illicit profits damaging homeowners and all taxpayers supporting federal, state, and local government.
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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 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.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
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CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR) (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
  • But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.
  • Yes you DO need a lawyer.
  • If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.
Please visit www.lendinglies.com for more information.

Filed under: boarding process, BURDEN OF PROOF, CORRUPTION, discovery, Discovery -Subpoena, evidence, Fabrication of documents, foreclosure, foreclosure defenses, foreclosure mill, investment banking, originator, Presumptions, prima facie case, Servicer, TRIAL OBJECTIONS | 1 Comment »

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

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

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And of course, in order to pursue a successful strategy, you at least need to pretend that you believe that there is no loan account receivable and therefore nothing to enforce. And if you’ve gotten to the point where I am, you will be completely confident that that is true. I have reviewed over 10,000 cases. There has not been one instance in which a loan account receivable was ever produced.
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The substitution of a payment history report generated from third-party vendors has never been a legal substitute for producing the loan account receivable, and an acknowledgment or attestation from an officer of the named claimant that the loan account receivable belongs to (is owned by) that named claimant. In all the cases that I have reviewed no such acknowledgment or attestation has ever been made. All of those functions are produced under the name of a company that is claimed to be a “servicer” but which does nothing in connection with the receipt and disbursement of any money.
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PRACTICE NOTE FOR LAWYERS: The successful argument for legal standing at the commencement of the case is NOT proof of legal standing. And the argument regarding Article 3 (UCC) enforcement of negotiable instruments is not a substitute for normal legal standing required by Article 9-203 for enforcement of security instruments (mortgages and deeds of trust).
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The object is to show that the foreclosure mill is unwilling or unable to produce the loan account receivable or any acknowledgment or attestation or testimony from an officer of the named claimant. You can show that because there is no loan account receivable and there is no officer willing to perjure themselves. there are no trust accounts managed by REMIC trustees, and even if there were, they would not, do not, and could not contain a loan account receivable due from the homeowner.
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The naming of a company as a “servicer” does not mean it handles receipts, disbursements or accounting for any movement of money. Such a company will be presented as the authorized representative of the named claimant but the named claimant never appears in court. Once the foreclosure mill fails or refuses to comply with discovery demands, their claim that the “servicer” is authorized to act for the claimant also fails because it is not relevant. If the named claimant has no ability to support a claim, then the agency of the “servicer” is irrelevant. The claim lacks foundation.
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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!

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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.
*
CLICK HERE TO ORDER TERA – not necessary if you order PDR PREMIUM.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
*
CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR) (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
  • But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.
  • Yes you DO need a lawyer.
  • If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.
Please visit www.lendinglies.com for more information.

Filed under: boarding process, burden of persuasion, burden of pleading, BURDEN OF PROOF, CORRUPTION, 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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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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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 »

Unilateral Mistake: Equitable Defenses Explained — How homeowners can get the upper hand and defend against enforcement of contract that is different from the one they knew or intended

Posted on November 10, 2021 by Neil Garfield

Homeowners are missing out on a huge opportunity for economic gain that balances the power between Wall Street and consumers. 

Courts of equity are courts of conscience, which should not be shackled by rigid rules of procedure,[51] and inherent in a court’s equitable powers is the authority to prevent injustice engendered by fraud, accident, or mistake.[52] Florida Bar Journal Novembert/December 2021 “Two, Three or Four Prongs? The Contractual Defense of Unilateral mistake in Florida”

Second, there is a distinction between the equitable remedies of rescission and reformation that may further blur the lines. The Florida Supreme Court and a few others have ruled that reformation is not appropriate except for mutual mistake,[53] but other Florida courts have extended it in the case of unilateral mistake where there is some form of inequitable conduct or inducement by the party seeking to avoid the defense.[54

Rescission should return the parties to status quo ante; reformation calls for a court, looking at the parties’ intent, to “rewrite” the agreement. The latter is more extreme and against the longstanding principle of court hesitancy to rewrite contracts. The Florida courts have long endeavored to refrain from the rewriting of terms in contracts.[55] Apparently, some bad act by the party seeking to enforce an agreement could under more extenuating circumstances, however, convince a court to rewrite a portion of an agreement.[56]

the courts must take their arguments as presented. Our system is adversarial,[58] and even in equity (with perhaps a bit more flexibility), courts are constrained to consider what parties present. It is not the courts’ role to re-craft a party’s arguments. Whether by choice of the parties or steerage by the courts, assertion of fraud in contracts cases is not undertaken lightly; other arguments devoid of accusations of fraud are more palatable. Additionally, to avoid having to address the fraud question, courts may entertain contractual defense arguments based on mutual mistake, unconscionability and possibly even undue influence (which has an inducement feature balanced with the level of susceptibility, but it is not outright “fraud”). Why find a party guilty of fraud, in a civil case, when a court could reach the same result based on a defense other than fraud? [e.s.]

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THIS ARTICLE APPLIES ONLY TO HOMEOWNER TRANSACTIONS IN WHICH THE SCHEDULED PAYMENTS ARE SUBJECT TO CLAIMS OF SECURITIZATION OF DEBT.

Matthew Marin and Paul Carrier wrote an important article featured in the recent Florida Bar Journal that provides a coherent explanation of contractual defenses that can be applied to contracts claimed to be loans and defenses against enforcement of the note or mortgage. In so doing they remind us of basic principles of what a court can and cannot do — including, I emphasize, the fact that a judge COULD think to himself or herself that an argument or claim or defense could be presented better does not establish the authority to do so. Judges are charged with considering the arguments presented — not the ones that could be presented. And the omission of the ones that could have been presented waives any later attempt to assert them.

This is not up for discussion or debate. It is a basic fact in litigation — one which homeowners have learned (or not) the hard way. Blaming a judge for not doing it is like blaming a dog for failure to fly. Homeowners in my opinion SHOULD be attacking most claims of authority to administer, collect or enforce scheduled payments, and there are plenty of grounds for doing so. In fact, there are good grounds for asking for money in addition to avoiding liability for issuing a promissory note without consideration — and If more homeowners did it the landscape would look totally different. The bottom line is hard for most to accept: the deal was not what it appeared to be.

The grounds for the attack should be largely equitable, but also include legal defenses —- they should be directed at authority (even if the contract was not rescinded, reformed, or set aside in whole or in part) and also on equitable grounds like a unilateral mistake, no meeting of the minds, etc. And as the article points out, validating what I have been saying, alleging fraud makes it far more difficult to plead or prove your point.

So here is the hardest part for homeowners and lawyers for homeowners to understand or even admit.

Nearly all notes and mortgages are issued because of unilateral mistake(s) on the part of the homeowner, induced by investment banks who continue to hide facts that are statutorily required to be disclosed, including but not limited to:

  • They do not know that they are doing business with an undisclosed investment bank doing business through a string of intermediaries.
  • They do not know that the supposed loan transaction is being underwritten for the purpose of justifying sale of unregulated securities and not for purposes of justifying a loan.
  • They do not know that the appraisal is being forced high to justify the contract price and the amount of the “loan”
  •  They do not know that there is an absence of any real party in interest that has a risk of loss — the essential balancing element of all contracts
  • They do not know that the undisclosed revenue for the sale of securities vastly exceeds the amount of their transaction. At the moment they sign, homeowners have triggered revenue that erases all possible risk of loss and eliminates the need to establish a loan account receivable on the books of anyone.
  • They do not know that it is their signature on purported loan documents that creates the illusion of a loan transaction thus triggering the undisclosed sale of securities (without which the “loan” would never have offered, much less occurred.
    • This one fact triggers a series of claims on behalf of homeowners that does not require alleging fraud and keeps the burden of proof manageable (generally preponderance, rather than clear and convincing).
    • Homeowners were not borrowers. They were investors and participants in the sale of unregulated securities. They were entitled to know that and bargain for a fair share of the proceeds. The issuance of the note by the homeowner was based upon a universal error or mistake by all homeowners that they were purchasing a loan product which was not true.
    • In addition, if the transaction was deemed by a court of competent jurisdiction to be a true loan with a “true lender” as set forth in the regulations, then the undisclosed amount of revenue generated from the sale of securities arising from the closing of the transaction with the homeowner is owed back to the homeowner (in full) under the Federal Truth in Lending Act.
      • This element of foreclosure litigation has not been adequately pursued. In judicial states it is an affirmative defense that is not barred by the statute of limitations. In nonjudicial states, the application of the statute of limitations to such claims must be unconstitutional because of unequal treatment based upon choice of procedure. Homeowners should not be barred from using meritorious defenses that are available under the same state’s judicial foreclosure procedure.
  • They do not know that no loan account receivable is created or maintained — thus making modification or workouts rare or impossible
  • They do not know that there is nobody who is legally authorized to administer, collect or enforce the promise they made to make scheduled payments, to wit: the presumed authority to enforce arising from the alleged possession of the alleged original note leads to a false conclusion of fact. Such authority ultimate must come from the party who owns the underlying obligation as contained on their records as a loan account receivable. There is no such loan account receivable.
  • They do not know that the transaction is going to be subject to false claims of servicing
  • They do not know that the “servicing” is not performed by the named “servicer”

The bottom line is that homeowners did not get what they applied for and the investment banks did not pay money to the homeowner or on their behalf because they wanted to loan money. They wanted to sell securities and they needed homeowners to do it. The fact that a homeowner received money and used it to either buy a home or settle a previous financial transaction does NOT make it a loan. A loan is a label for a certain type of contract. There must be a meeting of the minds. In cases where there was no meeting of the minds, there is no contract. And if there was no meeting of the minds because one party to the alleged contract was hiding and did not disclose the real terms as required by laws, rules, and regulations concerning loan contracts make it is imperative that established existing remedies be allowed to homeowners.

PRACTICE NOTE: It seems that a lot of people don’t understand the judicial notice and the insignificance of documents uploaded to the sec.gov site. By filing a registration statement followed by a notice that no further filings are necessary, anyone can upload anything to sec.gov. In effect, it is nothing more than box.com, dropbox, etc.

Lawyers and others involved in false foreclosure claims often upload documents under that cloud and then download those documents from the sec.gov site such that the download shows the sec.gov header.

They then file a motion for judicial notice of the document of a government document even though it was never reviewed accepted, approved nor even a part of a required registration since the sale of “certificates” is not regulated as securities. It is not subject to judicial notice because the document was not an official record of any governmental agency and was never officially registered or recorded.

It does not establish the existence of a trust or the powers of a trustee. Therefore, it cannot serve as the foundation for the claims of the company claiming to be a servicer for that “trust.” It is worthless as to its existence (probably because it is incomplete in the text or exhibits) and it contains only statements of future intent — not a recital of anything that has occurred.

 

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.

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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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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 pleading, BURDEN OF PROOF, CORRUPTION, discovery, Discovery -Subpoena, evidence, Fabrication of documents, foreclosure, foreclosure defenses, foreclosure mill, investment banking, Judicial notice, MODIFICATION, Mortgage, Pleading, Presumptions, Servicer, sham transactions | Tagged: , , , | 1 Comment »

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.

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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.

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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.
*
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: 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 »

Tonight! Neil Garfield makes it simple: Lying for Dollars: How to Apply Your Understanding of Securitization Claims to Win

Posted on April 8, 2021 by Neil Garfield

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“Your Honor, this is a standard foreclosure.” That is the first lie told in court as lawyers, and companies claiming to be servicers, lenders, or trustees continue to play their game of lying for dollars.

It’s obvious I have not simplified the explanation enough because both lawyers and homeowners still mostly don’t understand what I am talking about. That means they can’t use it effectively, as I have, and that means the judge won’t have any idea what you are talking about.

You can prove that the documents used by your opposition can’t be trusted. More importantly, you can prove that the lawyers opposing you cannot be trusted. And that means the opposition must prove their case by reference in well-founded relevant testimony from competent witnesses as to the actual transaction, proof of payment, etc. And they can’t do that.

That is how I win. And that is how homeowners across the country have won. And that is how all homeowners are faced with false claims of securitization or false claims of ownership where there is MERS or other signs of claimed securitization in the background.

So let me take a stab at another type of explanation of what happened. I concede that it is difficult for anyone to comprehend including Wall Street investment bankers. This will be the show tonight — my attempt at simplifying the explanation of why homeowners should win every time.

This will be an oversimplification. It is an example of the progression of events that occur when a legitimate loan is claimed to be subject to what is called securitization.

You must be tenacious, persistent, and unrelenting to the point where you can clearly demonstrate that the opposition is not complying with either court rules or court orders. That is when you have them in your sights and can shoot down their claim.

Filed under: burden of pleading, BURDEN OF PROOF, discovery, foreclosure defenses, foreclosure mill, forensic investigation, forgery, Investor, Pleading, Presumptions, prima facie case, TRIAL OBJECTIONS | 1 Comment »

Attack the “Successors”

Posted on April 6, 2021 by Neil Garfield

In analyzing the paperwork in front of you, make sure you read every word and do not accept anything said at face value. A popular ruse by foreclosure mills is the use of the word “successor.” I have been saying that this word is used as a cover-up for “we don’t have title to the debt, note or mortgage.” That means they have no loss connected with a claimed scheduled payment that was not received by a “Servicer” who had no right to receive it in the first place.

Hat tip to Gary Dubin, Esq. and Shelley Erickson.

If they have no loss, they have no claim. You don’t have a claim payable to you if you simply know that your neighbor has skipped a payment to someone. You don’t have the right to declare a default. There could be numerous reasons why the payments stopped that are none of your business. In that scenario, any action undertaken as if you did have the claim would be illegal in both the criminal and civil arenas. Such actions would include notice of substitution of trustee, a notice of default, a notice of sale, summons and complaint, etc. The practical problem is that the longer you wait to contest such actions, the more it seems like the perpetrator does have a claim.

Very often, you will see “Successor” used when it makes no sense if you even give it a moment’s thought. For example, if U.S. Bank is recited as successor to Bank of America, that is literally impossible. U.S. Bank did not buy, acquire or purchase Bank of America. They are referring, of course, to the “sale” of the position of “trustee” (without any legal trust powers) from Bank of America to U.S. Bank after Bank of America acquired LaSalle Bank, which is after LaSalle Bank had been effectively acquired by the owners of ABN AMRO, who had merged with Citi.

The key question is whether the position of a trustee if it actually exists, could ever be sold by the trustee without the advice and consent of the beneficiaries and/or the trustor/settlor. Of course, if that was alleged, i.e., that U.S. Bank had acquired the rights to be trustee through purchase, it would then need to disclose the content of the agreement of purchase and sale, and that alone would involve showing the consent of beneficiaries.

Because of the erroneous assumption/presumption that the beneficiaries of a REMIC trust are the investors, it is assumed that they must have consented. But the real beneficiaries are shown in the actual trust agreement (not the PSA most of which is a statement of future intention and not past events).

The real beneficiaries are securities brokerage firms (“investment banks”) which would, in turn, reveal that the investment banks are the primary parties in control of administration, collection, and enforcement — despite the fact that the investment banks retained no financial stake in the outcome of any transaction that was labeled as a loan.

People ask me whether there are cases supporting my analysis. there are hundreds of them, but they are rarely reviewed, much less used, by any homeowner or lawyer. Here is one such example from 2019 that has never been overruled, citing many other cases:

Certo v. Bank of N.Y. Mellon, 268 So. 3d 901, 903 (Fla. Dist. Ct. App. 2019) (“On the other hand, it is insufficient for the plaintiff to rely on its acquisition of the other entity. See Fielding v. PNC Bank Nat’l Ass’n , 239 So.3d 140, 142-43 (Fla. 5th DCA 2018) ; Kyser v. Bank of Am., N.A. , 186 So.3d 58, 61 (Fla. 1st DCA 2016) (despite testimony of merger, witness gave no testimony as to what assets exactly were acquired); Fiorito v. JP Morgan Chase Bank, Nat’l Ass’n , 174 So.3d 519, 520-21 (Fla. 4th DCA 2015) (testimony one entity “took over” another is not sufficient); Lamb v. Nationstar Mortg., LLC , 174 So.3d 1039, 1041 (Fla. 4th DCA 2015) (listing cases). Similarly, listing party status as “successor by merger” or claiming a title is not sufficient; a plaintiff must support its claim by evidence. See Buckingham v. Bank of Am., N.A. , 230 So.3d 923, 924-25 (Fla. 2d DCA 2017) (holding words “successor by merger” were insufficient to “establish the merger, let alone that the [plaintiff] acquired all of [the successor’s] assets”); DiGiovanni v. Deutsche Bank Nat’l Trust Co. , 226 So.3d 984, 988-89 (Fla. 2d DCA 2017) (finding no standing where Deutsche presented no evidence “Bankers Trust had been renamed Deutsche Bank”); Murray v. HSBC Bank USA , 157 So.3d 355, 358-59 (Fla. 4th DCA 2015) (explaining “Option One California” was not “Option One Mortgage Corporation”); Verizzo v. Bank of N.Y. , 28 So.3d 976, 977, 978 (Fla. 2d DCA 2010) (explaining plaintiff listing itself as “successor trustee” was insufficient).”)

Certo v. Bank of N.Y. Mellon, 268 So. 3d 901, 903 (Fla. Dist. Ct. App. 2019) (“The trouble here, similar to the trouble in Conley , is Mellon’s link to Bank of NY and Bank of NY’s link to JP Morgan. Because the final special indorsement is to JP Morgan, Mellon needed to evidence how it obtained the Note or interest. It claims to have it because Bank of NY is a successor to JP Morgan and Mellon is the new Bank of NY. However, the record does not establish either of those necessary links.”)

The bottom line here is that there is no succession regardless of how many times they assert it. Attacking the pleadings, motions, and exhibits with your own motions, answers, affirmative defenses and potential counterclaims is probably a good tactical response to the assertion of this type of lie perpetrators use in the courts every day. Bernie Madoff got away with his Ponzi scheme for decades. It was in most ways identical to what the investment banks have done with what they called “residential lending.”
The banks called it “securitization” without ever selling a single loan to investors or any part thereof. Madoff called it options trading without ever trading a single option. It was all based upon the “hidden magic” and “genius” of some secret formula that nobody else could access. Compare it yourself. Madoff’s scheme, now exposed, reveals what was really happening with homeowner transactions, investor transactions, and “foreclosures” of nonexistent claims.
THE BIG QUESTION IS WHERE ARE THE REGULATORS? THEY MISSED IT WITH MADOFF DESPITE CLEAR SIGNS OF WRONGDOING AND THEY ARE DOING IT AGAIN WITH INVESTMENT BANKS TOUTING NONEXISTENT SECURITIZATION.
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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.
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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 PROOF, CORRUPTION, Fabrication of documents, foreclosure defenses, foreclosure mill, forensic investigation, investment banking, Investor, legal standing, Pleading, Presumptions, Servicer, sham transactions, standing, TRIAL OBJECTIONS, TRUST BENEFICIARIES | Tagged: , , , , , , , , , , | 2 Comments »

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.
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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.

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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, 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.
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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.

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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, 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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*
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: 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 »

Think You Have a Loan? Think Again! Don’t allow the Wall Street “investment banks” to steal back money that was earned by homeowners. 

Posted on December 11, 2020 by Neil Garfield

What is obvious is false but only investment bankers know it. 

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Without knowing it, you are probably doing business with a Wall Street securities brokerage firm calling itself an “investment bank.” You didn’t know because they were never disclosed. And the money they paid to you was not a loan — at least not for them it wasn’t. They didn’t treat it that way on their own records and neither should you. That means they are attempting to collect back the money they paid to you even though it wasn’t a loan.
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So what did they pay you for? When you issued the promissory note what were you buying?
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The plain truth is that without an extensive background in investment banking — and all the experience, training, and education that requires — you have no way of understanding the nature of the transaction. So I’m breaking it down into its simplest components here — useful for litigation but not a complete description.
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You asked for and thought you received a loan. After all, you did get the money, didn’t you? When you applied for a loan, you thought you had identified the lender with whom you were doing business. After all, the money came after you signed the “closing documents”, right? So when the judge asked if you received the loan, you say “yes” believing there is no way you could deny the “obvious.
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And that is how Wall Street has been winning for 20 years. What is obvious is false but only investment bankers know it. 
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Here is what you didn’t know (in nearly all cases):
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  1. Yes, you asked for a loan, but the application you submitted was not to a lender.
  2. Contrary to the laws governing loan transactions many things were not disclosed to you.
  3. In most cases, the intake for the application for a “loan” is performed by a loan broker, who doesn’t care what the transaction is called as long as he/she gets the commission.
  4. The loan broker gets paid if you sign the closing documents. By signing the promissory note you have created an obligation — but is it enforceable? The answer is yes if it really was a loan transaction.
  5. The loan broker then forwards the information on the “loan” application to an IT platform that is controlled by a third party platform which in turn is acting for a securities firm preparing to issue and sell securities to investors. As far as they’re concerned they would prefer to pay you $1 rather than $200,000. But then how could they get you to sign a note for $200,000?
  6. The securities that are issued and sold are not a conveyance of any interest in your transaction. They are bets based upon reports issued by the securities firm. The prices of those securities are unrelated to the total amount of your transaction or any part of your transaction. So they can sell these securities indefinitely until the market is saturated (no more demand).
  7. On average, the dollar volume of revenue generated by the securities firm selling the securities is $12 for each $1 of your transaction.
  8. The amount they paid you was, therefore, on average, around 8.5% of the total revenue. It was a commission, not a loan. But you didn’t know that.
  9. You received a payment that was dressed up as a loan. You never thought to bargain for reasonable compensation for entering into a transaction that was the keystone of all the sales of all of the securities. And you never thought about whether you wanted to be part of a business venture whose purpose was to sell betting rights based upon reports about your transaction and whether you were making scheduled payments.
  10. Collection and enforcement of the obligation you created when you executed the promissory note is the act of taking back the commission they paid to you. And because they want all of it back plus interest that leaves you with negative compensation for initiating a huge business venture and allowing the use of your name and reputation. (They get all the benefits, you get the shaft).
  11. And even at the point of collection and enforcement you still don’t know that you are actually dealing with a securities firm that has no financial interest in your transaction. You don’t know because nobody is telling you that. They insist on calling it a loan and since it looks like a loan, everyone (including you) thinks it is a loan.
  12. When they get money from you or from the sale of your property they have no place to put it. They can’t debit an account receivable that reflects ownership of your obligation because there is no account receivable on the ledger of any company. Your payments constitute a return of the commission they paid to you — an amount that they deemed reasonable. That means that their payment is evidence of the amount of commission to the homeowner that the securities firm deemed reasonable. Ask any lawyer what that could mean.
  13. In court, they seek to increase their profits by forcing the sale of your house. But that can only be done legally if the forced sale is granted by a court because the action is a foreclosure. But it isn’t a foreclosure if the claimant is not the owner of your obligation. And they can’t be the owner of your obligation unless they paid value for it — which is why there would be an entry on the accounting ledgers of some company if anyone paid for your obligation and received a conveyance of ownership of your obligation. 
  14. In every loan, there is the lender and a borrower. You intended to be a borrower but you never made the journey. The biggest problem in foreclosure defense is the fact that homeowners and their lawyers (and the judges before whom they appear) believe that you did make the journey.
  15. That is because your counterpart was not a lender, had no means or intention of being a lender, and was seeking to avoid being called a lender at all costs — because they didn’t want to be held responsible for violations of the Federal Truth in Lending Act and other federal and state law governing lending, collections, and enforcement.
  16. The borrower has every legal right and legal expectation that the party representing itself as a lender is doing the underwriting of a loan with due diligence. That means they have a stake in the outcome of the transaction. It if its a loan, their revenue, profit, and assets are dependent upon repayment of the ”loan.” 
  17. In most cases, your transaction was conducted by the securities firm acting through sham conduit intermediaries. The sole purpose was to start the sale of securities. Some of those securities were bets against the performance data of your loan.
  18. So they had an incentive and a vested interest in seeing your “obligation” fail. That is why they inflated appraisals, granted no doc loans, granted NINJA loans, and offered “teaser” terms that were guaranteed to fail when the scheduled payments were reset.  The securities brokerage firm was betting on a sure thing. 
  19. In addition, the riskier the loan the higher the interest they could charge. That’s because everyone (except the Wall Street firm) thought it was a loan. And the higher the interest the less they had to pay out from the fund of capital generated by selling securities to investors. So if you had a $200,000 transaction where the securities brokerage firm set a price of 10% “interest,”  they were receiving around $400,000 from investors to cover that “loan” (which was actually a commission). That is why there is no loan account receivable on the books of anyone — not even the securities brokerage firm that funded it out of investor capital.
  20. Everyone on the “securitization” team got paid without exception. There is no debt.

So here is the message to homeowners, lawyers, regulators, law enforcement, and lawmakers:

Don’t allow the Wall Street “investment banks” to steal back money that was earned by homeowners. 

*
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.
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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)
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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 PROOF, CORRUPTION, discovery, Discovery -Subpoena, evidence, expert witness, Fabrication of documents, foreclosure defenses, investment banking, Investor, Mortgage, Pleading, Presumptions, prima facie case, sham transactions, standing, TRIAL OBJECTIONS | 3 Comments »

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. 

*
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.
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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)
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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, 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 ORDER ADMINISTRATIVE STRATEGY, ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
*
CLICK HERE TO ORDER TERA – not necessary if you order PDR PREMIUM.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
*
CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR) (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
  • But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.
  • Yes you DO need a lawyer.
  • If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.
*
Please visit www.lendinglies.com for more information.

Filed under: boarding process, 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 »

To All Those Requesting an Amicus Brief on Illegal Foreclosures: A different strategy is needed in my opinion

Posted on November 12, 2020 by Neil Garfield
I have spent the last six months drafting, re-drafting, editing, researching and investigating the basis for filing a brief as a friend of the court.
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The basis for an amicus curiae brief is the anticipated willingness of the receiving court to admit that there are factors involved about which the judge or panel lacks adequate knowledge or understanding. The problem with foreclosures is that judges think they understand all they need to know. Hence an amicus curiae brief is unlikely to be accepted or even read. Some judges might accept it into the court file, but they still won’t read it or give it any weight.
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This is very much like the whole issue of fake news. In this case, the securitization players have spent billions of dollars convincing the American public, agency regulators, homeowners, lawyers, judges and appellate judges or justices that the transaction with the homeowner was a loan. Like all fake news, the more people read it and the more often they read it, the more they believe it. Judges believe in the value of precedent — decisions made previously by other courts.
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CONFIRMATION BIAS: Each judge that has allowed the claim of securitization players to go forward as a foreclosure has reinforced the false narrative that the money received by homeowners was a loan and not payment for services rendered (i.e., payment to allow personal information to be used for marketing and selling securities, and payment for execution of documents bearing the label of loan documents so that securities could be sold).
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So each time another court twists some law like the statute of limitations beyond recognition in order to save the foreclosure from being dismissed or vacated, they are contributing to the growing false narrative that somehow foreclosures are reducing the loss in an account receivable on the ledger of some company that has paid value in exchange for receiving a conveyance of ownership of the underlying debt from someone who owned it.
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But nobody has ever seen such an account. They have only seen the reports from a self-proclaimed servicer who refuses to assert for whom it is working and refuses to provide any confirmation that any money collected from any homeowner is sent to any creditor.
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I have come to the conclusion that after months of drafting potential amicus briefs, it is a nonstarter and all that work was for naught. But that freed me to think about other strategies that might directly impact the current pandemic of confirmation bias. I think an administrative rule challenge might be that vehicle. 
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A petition to the Supreme Court of each state asserting that the current loose pleading and certification requirements reflect a bygone era in which a known creditor with an uncontested account receivable sought a remedy to offset a loss from nonpayment. In the hundreds of thousands of contested cases at least one of the principal issues raised in defense has been the true status and ownership of the alleged obligation.
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A requirement that the pleading or notice explicitly must assert the identity of the party currently carrying the account receivable (in compliance with Generally Accepted Accounting principles -GAAP)— certified by the sworn statement an actual officer of that creditor would (a) narrow the issues in discovery and (b) quite possibly narrow either the number of claims, defenses or both.  The availability of that officer for deposition or other discovery should be a condition precedent to allowing any evidence seeking to prove the assertion that a loan account exists or is owned by anyone.
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The basic pre-approved pleading forms and rules allowing foreclosures should be changed to reflect the new reality — or the court must consider whether it is going to allow, without legislation, changes in the law to allow virtual creditors to make and collect on claims.
*
Neil F Garfield, MBA, JD, 73, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
*

FREE REVIEW: Don’t wait, Act NOW!

CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us. 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 pleading, BURDEN OF PROOF, discovery, Discovery -Subpoena, evidence, foreclosure, foreclosure defenses, jurisdiction, legal standing, Pleading, prima facie case, standing | Leave a comment »

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

Posted on November 9, 2020 by Neil Garfield

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

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

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

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

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

Without such a transaction there is nothing to report.

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

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

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

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

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

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

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

In fact, it reveals exactly the opposite.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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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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Filed under: boarding process, BURDEN OF PROOF, discovery, Discovery -Subpoena, Fabrication of documents, Free House, Presumptions, prima facie case, sham transactions, standing, STATUTES | 3 Comments »

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