How to Stop the Court from Speculating About the Identity of Claimants in Foreclosure Cases

As long as you continually attack the sub silentio assumptions of the court, you will be weakening the case against you for foreclosure. Failure to do so means almost certain failure.

Foreclosure is considered a draconian remedy equivalent to capital punishment. All US jurisdictions have adopted as a matter of law and public policy (Article 9 §203 UCC) that the remedy will only be granted to one who paid value for the underlying obligation.

If you don’t challenge the sub silentio assumptions of the court, then the judge is free is assume that the granting of foreclosure is a remedy for restitution of unpaid debt and that he/she has granted it under the assumption that the owner of the debt is going to get the money when the property is sold to a third party.

THE FIRST MISTAKE YOU MAKE IS IN ASSUMING THAT THE OBLIGATION STILL EXISTS AND HAS NOT BEEN EXTINGUISHED IN THE PROCESS OF SECURITIZATION BY PAYMENT OUT OF HIGHLY PROFITABLE SECURITIZATION SCHEMES THAT WERE PART OF THE ISSUANCE OF THE MORTGAGE AND NOTE.

None of the court assumptions are true. But you can make them true by failure to challenge the assumptions and misleading arguments presented by the foreclosure mill. It is through no doing of the homeowner that the obligation has been retired without payment from the homeowner. And the homeowner has no legal or moral reason to pay it again. BOTTOM LINE: IF NOBODY HAS AN ASSET ON THEIR BOOKS SHOWING THEY PAID FOR THE DEBT, THEY HAVE NO RIGHT TO ENFORCE IT. THEY ARE JUST A WITNESS — NOT A PARTY.

This is a procedural problem. Technically speaking, a motion to dismiss has very strict rules — taking all allegations and exhibits of the complaint, does the complaint does state a potential cause of action upon which relief could be granted. Once you introduce something outside of the allegations of only the complaint you are in the realm of Motion for Judgment on the Pleadings, Motion for Summary Judgment etc.

 
Opposing counsel is attempting to mislead the court into speculating about the identity and nature of the claim, and the identity of the parties who are named as Plaintiff. The essence of the position of opposing counsel is a sub silentio argument: i.e., presume that somebody, somewhere is going to get the benefit of payment on a debt they own owed by the homeowner. The complaint and exhibits filed do not contain allegations of ultimate facts upon which relief could or should be granted. Such relief can only be granted if the court rejects basic jurisdictional and procedural requirements. Neither the Defendant nor the court has any basis for actually knowing the identity of the claimant(s) in this action. Relief cannot be granted to the world at large. 


The issue here is that opposing counsel now admitted certain things and their own complaint basically says the opposite of their current position in court. Inconsistent statements, some of which must logically and of necessity be false, are protected by litigation immunity behind which both opposing counsel and the participants in the instant lawsuit are hiding. But just because they cannot be held accountable for misleading the court doesn’t mean that they should be permitted to do it. 


Since the complaint is clearly filed, in its own words, on behalf of certificate holders, their current position that the bank is somehow the actual party is without foundation. The complaint lacks an allegation stating that the bank is the legal representative of certificate holders and further lacks any allegation that the bank is trustee for the certificate holders who are beneficiaries of a trust. Further the complaint fails to allege that the trust exists or was organized under the laws of any jurisdiction. 


They appear to be taking the position that the bank is a plaintiff, not on its own behalf but on behalf of some third party. If it is a trust, they have failed to identify the trust or any transaction in which the subject loan was entrusted to the trustee under the terms of a trust instrument which is also not alleged. 


Accordingly, based upon the argument of counsel, the complaint fails to state the cause of action that opposing counsel is currently pursuing. This court lacks jurisdiction to hear any matter in which the Plaintiff is not identified or in which the named Plaintiff is not alleged to have suffered some injury caused by the Defendant or someone through whom the Defendant claims an interest in the subject matter. 


As it stands the complaint must be dismissed because it lacks both basic requirements for authority of the court to hear any dispute, to wit:  The identity of the Plaintiffs is concealed, withheld or otherwise not alleged and the ultimate facts upon which relief could be granted as the basis of their claim is not alleged.

The current action is based upon the implied conveyance contained within unidentified certificates, the contents of which are neither described nor attached as exhibits. And the claim is alleged to be brought on behalf of undefined holders of those certificates, who are not alleged to have any interest in the subject obligation. On the contrary, opposing counsel continues to assert the position that the plaintiff is a bank acting as trustee for an implied trust. 


Opposing counsel is attempting to have it both ways and to distract the court from the obvious conflict presented in this case. Either the claim is brought on behalf of an actual or implied trust or it is brought on behalf of holders of certificates. In either case neither the “trust” nor the “certificates” or “holders” are identified. Defendant is forced to litigate with a ghost. This court is being guided into a final judgment that grants to relief to unknown legal persons based upon assumed injury that is never alleged. 


Defendant is entitled to know exactly who she is litigating against and why. that is basic pleading practice as required by the most basic constitutional standards, statutes and rules of civil procedure. As it stands, opposing counsel is promoting a case that has not been alleged. 


Defendant asserts that the case must be dismissed without prejudice or that judgment must be entered for the Defendants. The opposition filed by opposing counsel actually corroborates every basis for the motion to dismiss that was filed. This court should refuse to consider an unspecified case with unspecified plaintiffs on an unspecified claim. To do otherwise opens the door to new doctrine in which anyone can file a lawsuits based upon facts known to them as a witness instead of a party. 

The court should reject the sub silentio argument presented by opposing counsel — that even if the the trustee, trust and holders have no right, title or interest in the mortgage, the action should proceed because they know that the homeowner did not make a payment.

The protections enunciated by the state legislature in their adoption of Article 9 §203 of the Uniform Commercial Code are not optional. Only the owner of the underlying obligation can force forfeiture of property to pay a debt. Black letter law in all jurisdictions is crystal clear: debt is not acquired without paying value for it. Black letter law is in all jurisdiction is clear: assignment of mortgage without a sale of the underlying obligation is a legal nullity. 


“even if we could entertain the argument we would reject it. The complaint alleges that US Bank claims to hold the beneficial interest and the right to foreclose, which is fully consistent with defendants’ representations in their brief as well as the judicially noticeable documents in the record. The issue is not Chase’s role as the loan servicer, but the proper identification “of the party enforcing [the] debt.” (Yvanova, supra, 62 Cal.4th at p. 937.) Yvanova makes clear that “􏰀􏰁􏰂he borrower owes money not to the world at large but to a particular person or institution, and only the person or institution entitled to payment may enforce the debt by foreclosing on the security.” (Id. at p. 938, italics added.)”

Masoud v JP Morgan Chase, Cal. 4DCA, May 26, 2020, Case #D075582.

Yvanova v. New Century Mortg. Corp., 62 Cal.4th 919, 937 (Cal. 2016) (“Defendants argue a borrower who is in default on his or her loan suffers no prejudice from foreclosure by an unauthorized party, since the actual holder of the beneficial interest on the deed of trust could equally well have foreclosed on the property. As the Jenkins court put it, when an invalid transfer of a note and deed of trust leads to foreclosure by an unauthorized party, the “victim” is not the borrower, whose obligations under the note are unaffected by the transfer, but “an individual or entity that believes it has a present beneficial interest in the promissory note and may suffer the unauthorized loss of its interest in the note.” (Jenkins, supra, 216 Cal.App.4th at p. 515156 Cal.Rptr.3d 912; see also Siliga v. Mortgage Electronic Registration Systems, Inc. (2013) 219 Cal.App.4th 75, 85161 Cal.Rptr.3d 500 ”)

Yvanova v. New Century Mortg. Corp., 62 Cal.4th 919, 937-38 (Cal. 2016) (“Nor is it correct that the borrower has no cognizable interest in the identity of the party enforcing his or her debt. Though the borrower is not entitled to object to an assignment of the promissory note, he or she is obligated to pay the debt, or suffer loss of the security, only to a person or entity that has actually been assigned the debt. (See Cockerell v. Title Ins. & Trust Co., supra, 42 Cal.2d at p. 292267 P.2d 16 [party claiming under an assignment must prove fact of assignment].) The borrower owes money not to the world at large but to a particular person or institution, and only the person or institution entitled to payment may enforce the debt by foreclosing on the security.”)

In any valid case for foreclosure, the complaining party must plead and prove the current existence of the debt, the current ownership of the debt being in the claimant or plaintiff, and the default of the homeowner as to the claimant (not someone else, about whom the court could only speculate as to their existence or their interest in the proceedings).

If they fail to make such allegations or prove that case, foreclosure must be rejected. And if the reason they failed to make such allegations is that they are pursuing a profit motive in lieu of an attempt to collect on an existing debt held as an asset by some creditor then all parties involved should be held accountable for abusing or weaponizing foreclosure process in an extra-legal and therefore illegal manner, all claims of litigation privilege notwithstanding.

*Neil F Garfield, MBA, JD, 73, is a Florida licensed trial attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.*

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How to Deal with Motion for Substitution of Plaintiff in Foreclosure Actions

The single basic tool of the investment banks, who are secretly running the whole foreclosure show, is musical chairs. By rotating the players they can successfully bar the courts and the litigants from knowing or pinning down who is real and what is real. All of that ends if you sue the investment bank.

Look at any foreclosure in which claims of securitization are known or suspected and you will find “rotation”.

In nonjudicial states it starts with “Substitution of Trustee” on the deed of trust which can be done without any motion.

Before or after that there is a change in the name of the servicer, which has perplexed judges since I first entered the picture in 2006.

Then there was a change in the credit bid after the foreclosure was complete or during the foreclosure sale where a new party mysteriously ended up “owning” the property.

And now we see with increasing frequency, the substitution of a new claimant or plaintiff during the foreclosure proceedings.

Motion for substitution of Plaintiff are becoming the rage simply because most state courts require a wrongful foreclosure action to be against the party who initiated the action. So the investment banks simply took their cue from that. They designate a new Plaintiff or a new claimant during the proceeding. Presto there is no wrongful foreclosure action. But there still may be the normal abuse of process claim.

Either way, they have no right to designate the first or the new Plaintiff or claimant. 


I would say that the likelihood of successful opposition to the motion for substitution of plaintiff is very low, as long as some explanation is offered. But this should trigger aggressive discovery where you go after the transaction by which the new plaintiff became the designee.

In a nutshell no such transaction exists because there was also no transaction by which the first Plaintiff became a creditor. It is all smoke and mirror. 


I am not saying that you shouldn’t oppose the motion for substitution of plaintiff. What I am saying is that the judge will regard it as merely a housekeeping chore until you raise the central issues of your defense narrative.

The moral of the story is that if you are going to sue for wrongful foreclosure you should be naming the investment bank that was calling the shots. Everyone else is a moving target with plausible deniability. That may not always be so easy to determine, but it isn’t impossible. We can help with that.

If you go after the investment bank you will be able to overcome the plausible deniability and technical requirements of claims based upon wrongful foreclosure. You can say that the action was brought by them using the name of a sham conduit. The change in “Plaintiff” therefore changes nothing.

Neil F Garfield, MBA, JD, 73, is a Florida licensed trial attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.*

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

About those tax statements you have seen or received on home “loans”

Answering your question requires tracing the convoluted strategy of the investment banks. 


Start with the proposition that each player is one of the separate business entities involved in the securities plan that claimed to “have” your loan in some manner, shape or form.

Next go to the fact that the creditor role was extinguished in the plan. That leaves the debt with nobody to pay (no creditor). Nobody has an asset on their balance sheet corresponding to your transaction that was originated as a “loan.” 


BUT you are making payments as directed by people whom you think are actually authorized to tell you where to make your payments. Those payments are sent to a company claiming to be a servicer. I’ll simply call them a receiver. So the receiver accepts the payments and then forwards money to someone (Investment Bank) who is the party from whom they accept instructions (although the instructions are actually received semi-anonymously from a third party intermediary). It’s like organized crime. The receiver keeps a portion of the payment as fees and turns over the balance. 


So the investment bank has received a payment from the receiver. It does not book the receipt of money from the servicer as interest income, return of principal or anything like that because the investment bank has no asset against which it could post such entries. So it posts it to a suspense account (with the label of the implied trust, which actually does not exist and therefore has no tax liability) that is neither income nor a reported asset, although it should be reporting the asset and an equal liability to pay it out if that was the case. This is simple double entry bookkeeping. But because of changes in GAAP that started in the 1960’s (See Unaccountable Accounting by Abraham Briloff) and were then accepted by both the Financial Accounting Standards Board and the SEC and therefore  by the IRS, these transactions are considered “off balance sheet” which is a fancy way of saying that they don’t actually report it even though it happened. 


Since there is no  bookkeeping entry as to income or expense there is no taxable event and nothing is reported to the IRS. And while payments are being made to investors (holders of certificates) by the investment bank (as “Master Servicer” on behalf of the implied “trust”) all of those payments are discretionary. 


And here is another place where it gets really complicated. Payments received from the servicer do account for most of the payments made to investors who bought certificates. But factually and legally those payments continue only as long as the investment bank wants to make them. The investment bank wants to make them only as long as it is selling certificates. (See Ponzi scheme). And in actuality the investment banks DO continue to make payments without regard to payments received from homeowners as long as they are keeping up the pretense that those payments are actually tied to the receipt of payments from “borrowers.” The goal is to sell more certificates. 


And in fact the structure of securitization in practice is such that if all homeowners stopped making payments, the investment banks would and do continue making payments — if they were still selling certificates. This actually happens where most of the loans were toxic assets. But in reality the investment banks could not continue to sell certificates if homeowners refused to pay. That would break the illusion of loan portfolios and it would be easy to see that the transactions with homeowners were not really loans because nobody ended up being a “lender” as defined under Federal and State lending laws. 


So what happens when a debt is discharged by bankruptcy? Answer nothing because nobody has it as an asset. It continues to get reported as if nothing had happened. the goal is maintain the pretense that the “loan portfolio” is operating and that “borrowers”. 
What happens when the trustee sale occurs? Answer nothing because nobody has it as an asset. It continues to get reported as if nothing had happened. the goal is maintain the pretense that the “loan portfolio” is operating and that “borrowers”. 


What happens when they sell the property using third party names? Answer nothing because nobody has it as an asset. It continues to get reported as if nothing had happened. the goal is maintain the pretense that the “loan portfolio” is operating and that “borrowers”. 

What happens with payments from homeowners that are reported as “interest” by the receiver/servicer? Answer nothing because nobody has it as an asset. It continues to get reported as if nothing had happened. the goal is maintain the pretense that the “loan portfolio” is operating and that “borrowers”. 


What happens with payments from homeowners that are reported as “principal” by the receiver/servicer? Answer nothing because nobody has it as an asset. It continues to get reported as if nothing had happened. the goal is maintain the pretense that the “loan portfolio” is operating and that “borrowers”. 


Having created a complex design that to most people is impenetrable the investment banks are now able to report anything they want for their own purposes. 


It doesn’t matter what the homeowner pays or doesn’t pay.
But they have algorithms to keep up appearances. Since those programs do not have access to any actual database, they create one what assumes, from the face value and terms of the origination loan documents, that you are paying and they send out a statement that says you paid interest on your loan. This provides the foot prints for tax evasion or avoidance. Having established nonexistent transactions as at least “reported” they can now write off the loan, take a loss and reduce their taxes. 


The interesting academic question that rises from all of this is that the whole thing is “tubular,” in my view. From the perspective the homeowner intended to make payments of interest when the homeowner was actually making payments on what the homeowner thought was a loan. It was certainly an obligation even if it wasn’t a loan, even if it might have been an unenforceable obligation for lack of consideration.

[More legal analysis: If it wasn’t a loan then the payment was in exchange for something from the homeowner — i.e., initiating and issuing instruments that started (or completed) the securitization process. If that was the consideration then was the consideration cancelled out by the homeowner/issuer’s required promise to make a payment that was more (with “interest”) than what the homeowner received?]


So from the homeowner’s perspective the payment was interest on an obligation and was not deductible unless it was an obligation arising from a homeowner “loan.” But from the investment bank’s perspective there is no interest, there is no principal. There is only cash flow to which they attach any label they want. It is my opinion that this is a major potential source of revenue for Federal and state governments who have income taxes. Because the investment banks are taking deductions without reporting the income. 


So all of this adds up to a very solid qui tam action under state and federal false claims act that cost governments money. The problem is political. Under direction from the executive branches, most dominated by politicians who have received vast amounts of money from investment banks who received vast amounts of money from investors and homeowners, so when qui tam actions are filed, the agency steps in and says “it’s ok, we were not defrauded. This is public policy to allow this.” End of Qui Tam. 

*Neil F Garfield, MBA, JD, 73, is a Florida licensed trial attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.*

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*FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT.  IT IS NOT A SHORT PROCESS IF YOU PREVAIL. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION

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

BEWARE: MORATORIUM ON FORECLOSURES MAY NOT STOP SALES OF THE PROPERTY

In a nutshell, moratoriums will do very little for homeowners or the courts. First unless a specific moratorium order states that it bars sales and evictions it is only the foreclosure action that is temporarily suspended. At some point in the near future, homelessness will spike because of a new tidal wave of foreclosures.

Second a moratorium does nothing to forgive payments. So when the moratorium expires, all the payments are due unless you ask for and receive some sort of forbearance agreement from servicers (who probably don’t have any authority despite all appearances to the contrary).

Third, don’t rely upon your own interpretation of what you read on the Internet. There is no substitute of a three year legal education and law degree and there is no substitute for decades of experience in and out of the courtroom.

Fourth, DO use this time to prepare for a confrontation with the banks and companies claiming to be servicers. Do not admit to anything —even the existence of your obligation even if that makes you feel uncomfortable.

Fifth start the administrative process by sending out a Qualified Written Request under RESPA and a Debt validation Letter under FDCPA. But stop thinking you know how to do that. Overbroad generalizations and conclusions are a perfect excuse not to answer you or evade your questions.

*Neil F Garfield, MBA, JD, 73, is a Florida licensed trial attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.*

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*CLICK HERE TO ORDER TERA

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*CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR PLUS or BASIC includes 30 minute recorded CONSULT)

*FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT.  IT IS NOT A SHORT PROCESS IF YOU PREVAIL. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.

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

Could IRS Enforcement of REMICs Bring Wall Street Into Line? Yes but they won’t do it. Investors and homeowners continue to suffer as victims of fraud.

The most obvious places to look for correction in the illegal conspiracies masquerading as securitization of residential debt were the IRS , the SEC, the FDIC and the FTC and probably later the CFPB. Qui tam (whistleblower) actions were regularly dismissed because the agency that lost money due to false claims rejected the notion that it was a false claim or that anything bad had occurred. Sheila Bair lost her job as head of the FDIC for protesting policy set by Presidents Bush and Obama that failed to hold the line.

So here is a 2014 article that talks about how we could have regulated the investment banks through IRS examination of the REMICs.

Corruption is the answer. Too many people were making too much money and were “donating” too much money to people in public office. Enforcement was impossible. The real answer is extremely simple — stop all private money in elections. All elections should be publicly funded. No exceptions.

see.. PA Journal of Business Law – REMIC Tax Enforcement

The problem remains that US government agencies refuse to police schemes that are labelled as securitization of debt. If they are securitization of debt then market forces apply and everything COULD even out in the end. The problem is that the debt was never sold into a securitized scheme and nobody cares even though that has eliminated even the possibility of the existence of any creditor.

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REMIC policing by the IRS would be ideal to reveal the fatal deficiencies and fraudulent character of these securitizations schemes. It is why the first 9 lawyers tasked with drafting the documents for securitization all quit with one declaring that she would not be party to or an accessory to a criminal enterprise. There is no entity that qualifies as REMIC in residential loans. AND the reason is very simple:  neither investors nor the trust is buying the loans.
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So all the tests and premises about having an ownership interest, and about the quality of the loans are all false tests designed to cover up the fact that there has never been securitization of any residential loan except is very specific rare circumstances where individual mortgage brokers have sold loans to small groups of investors with repurchase agreements. In most instances those turned out to be scams.
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The way they got away with it is that there was a securitization process — i.e., one in which new securities were issued, even if they were unregulated. But only those schooled in Wall Street finance grasp the fact that they were securitizing bets on data — something that is very ornate and complex.
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Once you DO grasp the idea of what they really were doing and are still doing then you see why all the documents in all the foreclosures had to be fabricated, forged, backdated and robosigned. 
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You can also see why they have robowitnesses come to court and why they show only the business records of a servicer who has no contact with the so-called principal named in the claim or lawsuit. You can see why there is never a proffer of the business records of a creditor because there is no creditor.

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There cannot be contact between foreclosure mill and trustee of REMIC trust, there cannot be contact between “servicer” and Trustee of REMIC trust, there cannot be direct contact between investment bank and any of the players because any such contact would undermine the essential ingredient of the entire plan — plausible deniability of intent or knowledge of the scope of the illegal plan.

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The job of the litigator is to assume that that the entire thing is fraudulent and to ask for what they cannot give — answers to simple questions about the ownership and authority and status of the “obligation” that in reality is nothing more than a return of the consideration paid for a license to sue the homeowner’s private data and homeownership as mere points of reference for the issuance and trading of complex securities.
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But you must make it look like all of those companies are in actual contact and that payments from consumers or from the forced sale of their property are going to a creditor. You need to do that in order to give a judge cover for ruling in favor of the investment bank who is not even in the courtroom.
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The answer is as simple as simple can be: they are making everything up.
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Documents are not real unless they memorialize something that happened in the real world. But Wall Street banks put together a plan that made it appear that a sale of the debt occured where there had been no such sale. Or to be even more specific, they made it appear that there had been a purchase by or on behalf of the investors or trusts. Nothing could have been further from the truth. The truth is that investment bankers never looked at homeowner transactions as loans. They saw the money they paid to homeowners as a cost and condition precedent to creating and selling new securities. 
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Why no creditor? Because that is how you escape liability for lending law violations. 
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Why call it a loan? Because that is how you keep consumers from bargaining for their share of the very rich pie created by investment banks in the sale and trading of derivatives, insurance contracts, hedge products and just plain bets on fictitious “movement” of data that was completely controlled, in the sole discretion, of the investment banks. 
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They were printing money for themselves. The losers were and remain investors who buy “certificates” that are nothing more than a cover for underwriting the sale of securities for a company that doesn’t exist. the losers are the homeowners whose issuance of a note and mortgage triggers a vast undisclosed profit scheme in which the wealth of America shifted from the many to the few.

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BUYING RMBS CERTIFICATES IS LIKE BUYING TULIPS JUST BECAUSE THERE IS A MOB OF PEOPLE WHO FOR COMPLETELY IRRATIONAL AND TEMPORARY REASONS THINK THEY ARE VALUABLE.
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In the meanwhile you can order any of the following:
*
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
*
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*
FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT.  IT IS NOT A SHORT PROCESS IF YOU PREVAIL. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
*
Please visit www.lendinglies.com for more information.

The Curious Distraction of Applying “Adverse Possession” Rules to Foreclosures that are Time Barred by Statutes of Limitation.

The reference to “adverse possession” in any of these cases is not about legally changing title due to the statute of limitations enabling adverse possession. I know what that looks like. Possession that is adverse is not the legal definition of the statute governing “adverse possession”. Not even close. In this case the court was using the words “adverse possession” loosely. An adverse possession claim is procedural and substantive.
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For adverse possession to even be an issue that a court could adjudicate one would need to file a complaint alleging that the Plaintiff did NOT have legal title but had possessed the property is an open, adverse way directly against the interests of the title owner. No such complaint has been filed or even referenced in your case or this opinion from the court.
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In the absence of a claim in which a Plaintiff seeks specific relief, the court has no authority or jurisdiction to even consider, much less decide a case. Any ruling predicated on the existence of such a claim  is ultra vires (beyond the authority of the court).
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The only possible procedural exception would be that evidence was admitted without objection into the court record supporting proof that the Plaintiff was occupying land owned by the defendant and that such possession was open, notorious, continuous, hostile, adverse, exclusive and all the other elements of adverse possession. Then a motion to amend the pleading to conform to the evidence could be heard and granted. No such motion was brought in your case or any of these case you are showing me.
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So none of the cases are or even could be adverse possession cases. Opposing counsel is standing adverse possession on its head. She is saying that you are the owner and you are the possessor but that your ownership and possession are adverse to their interest in a process called foreclosure. Note that by definition they are not saying they own or possess the property already. And they are not even saying they have a right to possession. They are saying they have a right to foreclose. The issue of possession could not even be before the court until the court grants foreclosure and there is a sale of the property.
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The right to foreclose is based upon procedural and substantive law. The right to foreclose comes from contract. The contract is the mortgage. The mortgage, contrary to what everyone usually says, has many provisions in it that state that the mortgagor/owner of the property has agreed to undertake certain obligations of maintenance, insurance, and otherwise prevent the value from declining in value except for ordinary wear and tear and passage of time.
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In addition to those covenants the mortgage provides a right to the mortgagee to foreclose if the mortgagor is in breach of the mortgage covenants, one of which is the payment of money in accordance with the terms and conditions of a promissory note. The payment of money is usually referred to as the note which sets forth how much money and the terms of payment. Thus the owner of the property is a mortgagor under the mortgage and an obligor under the note. Those are two separate instruments. 
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If the note is evidence of an underlying debt like a loan from the Payee to the Payor, then the underlying debt is merged into the note by judicial doctrine to prevent the appearance of two liabilities for the same debt. If the named payee on the note is not actually the party who loaned the money then the merger doctrine does not apply and you have two legal liabilities — one because the debtor received money and the other because the same person executed a negotiable instrument that creates a separate liability regardless of the facts and circumstances of the “loan.”
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In such circumstances the Payor could complain and defend that it received no consideration from the payee and avoid liability at trial, but that would not result in dismissal of the lawsuit. That would be a question of fact for the trier of fact to decide.
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And if the negotiable instrument (note) was purchased for value in good faith and without knowledge of the Payor’s defense of lack of consideration, it is quite possible for a judgment to be entered against the Payor, which could include foreclosure of the mortgage which provides for foreclosure in the event that the obligor/mortgagor breaches the terms of the note. And all of that would be in addition to claims that could be made by the real owner of the debt to get paid. The recourse for the homeowner in such a situation is solely against the party who lured him into a signing a note without ever providing the consideration and without any intent to do so.
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As you can see from this exposition, it is entirely possible for the homeowner to theoretically lose twice and be left with a remedy against a now bankrupt originator.
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All of the above is necessary context to see where these courts are going wrong about the existence of the mortgage lien and its enforceability. They are entirely correct in seeing the note as distinguishable from the mortgage and even distinguishable from the debt. They could and often are three separate legal issues, each with its own set of rules. And those rules can vary depending upon the type of proceedings in which they are considered.
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This is why in bankruptcy the lien survives discharge of the obligation for the debt. That isn’t logic. It is just law. The obvious theory would be how can they foreclose on a debt that no longer exists? And the answer is a legal fiction in which the debt is somehow owed by the land, which I know is absurd but that is the law. However that has nothing to do whatsoever with the statute of limitations and the rules of procedure in a state court. And there is zero support in statutes or case law that it does. That is also the law. It’s not matter of persuasive logic.
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Your case is not a bankruptcy case nor does the defense rely upon discharge from bankruptcy which is the only proceeding in which the debt is eliminated as personal liability of the debtor but is retained as a liability against the land. No such doctrine applies in any other proceeding in federal or state courts. Nor has any case even considered the proposition. Nobody has ever suggested that the bankruptcy rule could be applied as doctrine to somehow change other statutory laws passed by the legislature that might bar collection, administration or enforcement of a debt, note or mortgage. It doesn’t exist and your opposition is not saying it does exist. So the issue does not exist.
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What your opposition is tapping into is the idea that the mortgage and the note are separate contracts each susceptible to independent enforcement. For example even if a homeowner is up to date on payments due on a legal debt owed to a real lender the lender could still foreclose if the homeowner failed to comply with local laws and ordinances such that the value of the collateral was threatened and the government agency was threatening fines, liens and foreclosure. The mortgage contract, is, as your opposition suggests, independent up to a point.
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The obvious logical argument in the absence of an enforceable underlying legal debt, is whether the covenants under the mortgage survive even if the note is not enforceable. I would point out here that your opposition is not advancing any such argument and that therefore even if the court were aware of this analysis it would still be wrong to consider it because the court is supposed to be deciding issues brought before it by the parties — not advocating for one side or the other.
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If a Judge, as former trial lawyer, sees something that might advance the cause of one side or the other, the judge is required to be silent unless there are grounds for the court to sua sponte decide on an issue not raised by either side — like jurisdiction.
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There are several logical and legal reasons why the mortgage continues to exist even though the underlying debt is unenforceable, which is most certainly and indisputably the case in your situation. One is simply that the statute of limitations can be waived or renewed by conduct of the debtor. While this has not happened YET, the fact that it is unlikely is speculative and no reason to cancel the mortgage lien.  And because of that possibility — along with the fact that no statute cancels the mortgage when the action is barred on the underlying debt — the mortgage lien continues to survive as a lien.
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The mortgagee, assuming the assignments of mortgage were valid and legal and supported by consideration (very problematic in your situation), has potential or inchoate rights that cannot be extinguished. But that does not give any right to the mortgagee to foreclose the mortgage for the sole reason that the mortgagor, as payor/obligor on the note breached the note — at least not where such a claim is time barred by an unambiguous express statute addressing that claim.
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The enforcement of the obligation is barred by the statute of limitations even though the breach is self-evident. This is a matter of public policy that the legislature of each state decides. Your state may have decided that if you don’t file the claim with six years of the breach you can’t bring the claim later. That is the law.
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Only a law that that specifically expressly supersedes another law can be used to avoid the legal requirements and restrictions of the other law. No such law has been invoked in any of these cases (because none exists) and there is no pronouncement from any court that the law of adverse possession supersedes the statute of limitations on debt because only the legislature can do that.
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The current statute of limitations is clear, unambiguous and expressly articulated.  If the legislature had meant to make an exception for mortgage loans, lawmakers would have declared the exception in the current statute rather than some vague presumed intent to allow for a conflict of laws where none exists.
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The conflict only exists if it is invented. Opposing counsel has invented the conflict and convinced the court to follow her proposed “logic.” But like all arguments, if you start with the wrong premise, you end up with the wrong result. There is no conflict of laws and therefore there is no basis for the court to presume one exists.
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Whether the debt exists or not is a separate question. The fact that a claim is time barred on a debt does not extinguish the debt unless there is a law that says that is the case. Some states have passed such laws.
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Assuming the debt exists for purposes of this argument, there must be a creditor who has paid value for the debt in exchange for ownership or conveyance of that debt. It is pure speculation as to the reason why no claim was filed for within the express statutory period of six years after what opposing counsel claims was a default and acceleration of the debt. And it doesn’t matter what the reason was.
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The claim is barred as matter of statute and public policy. The court receives no argument, assertion or basis for tolling the statute of limitations. That issue does not exist before the court.
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Hence the only possible conclusion is that the statute of limitations applies and the current claim is time-barred; the mortgage agreement cannot be enforced in the future unless and until, during the express term of the mortgage contract, the mortgagor renews the debt or otherwise breaches the terms and conditions of the mortgage agreement — and a legally recognized mortgagee seeks such enforcement.
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I will consider taking cases on appeal pro hac vice in foreclosure cases

This is not a solicitation. The choice of an attorney is an important decision and you should choose based upon direct knowledge and consultation with other professionals. Do not rely on intermediaries. There is no assurance that I or any attorney will accept a specific case even if it complies with the following conditions. There is no guarantee of success or any specific result. Even if the court reverses the trial court it may issue instructions that are not favorable to your position. I am licensed only in the State of Florida with reciprocity only in Washington DC. I do not consider myself an expert in appellate practice and neither should you. This is a change in our procedure in that we are offering my appearance of record in appeals.

So in answer to too many requests, I am willing to consider engagements for researching and drafting the briefs for an appeal and appearance pro hac vice, including oral argument, if the following conditions are met:
  1. A final decision has been rendered ending the case. This means an adverse final judgment or a final order of dismissal of a claim brought by the homeowner.
  2. The decision has been issued and rendered by a state court, a Federal district court or a bankruptcy court.
  3.  A proper notice of appeal has been filed. and there is at least thirty days left in which to draft and file the appeal.
  4. Instructions and payments arrangements have already been made for the clerk of the court to forward the record on appeal to the appellate court.
  5. Except in Florida State or Federal cases, a local attorney has been retained as local counsel for my pro hac vice motion. This is the attorney who signs anything filed with any court and who is in  essence vouching for me and guaranteeing that we follow local rules. 
  6. Both the local attorney and the client agree that my decisions as to the focus of the appeals is final. The client may of course terminate and hire other counsel if he or she disagrees. 
  7. The foreclosure case was initiated in the name of a securitization scheme such as “U.S. Bank, as trustee for the certificate holders of SASCO series 2007-1A.”
  8. A complete certified transcript of the final hearing or trial is provided to me in digital form.
  9. A COMPLETE copy of all pleadings and all exhibits to pleadings filed of record is provided to me in digital form.
  10. After all of the above requirements have been satisfied, there is at least thirty days left in which to draft and file the appeal.
  11. No prior motions for extension of time have been filed on behalf of the homeowner. 
  12. Both the client and the local attorney understand and agree that an appeal is not an opportunity to retry the case, castigate the trial judge or impugn the integrity of opposing counsel. 
  13. All project fees for my work and to any other vendors or clerks of the court are paid in full in advance and nonrefundable before work commences. 
  14. Fees will vary depending upon the following factors:
  • The number of times that a foreclosure case has been initiated against the homeowner.
  • The number of times that the homeowner has been in bankruptcy court during the pendency of the claimed default
  • The number of times any appellate review has occurred in which this case has been involved in a related decision. 
  • Whether jurisdictional grounds in the trial court were properly raised on behalf of the homeowner. 
  • Whether the homeowner was represented by counsel in the trial court.
  • The number of other administrative or court proceedings in which the facts of this case were in issue. 
  • The number of issues raised by discovery demanded on behalf of the homeowner.
  • The number of objections raised on behalf of the homeowner. 
  • The number of motions filed on behalf of any party in the trial court.

MY PROCEDURE: I get dozens of requests for service per day. I cannot do everything. I must select those cases in which I believe, for better or worse, that I can make a difference either as litigation consultant or as the actual attorney of record for an appellant on appeal. My belief is not a prediction or guarantee or assurance of success.

STEP ONE: Order a Preliminary Document Review PREMIUM. We review your case and decide on the scope and cost of the appeal ( in addition to the PDR PREMIUM) along with recommendations on specific issues for appeal, strategies and tactics that might be employed. This includes up to 60 minutes of consultation with me and hopefully your local attorney. the decisions of your local attorney on procedure are final and I defer to local counsel on such matters. At the phone conference I will provide a good faith estimate of the non-refundable project cost that must be paid up front, excluding any motions or filings by either side other than the initial brief, the response, and the reply brief.

STEP TWO: Homeowner and advisers make a decision as to whether I might be a useful or valuable addition to the defense team and then  decide whether or not to retain GTC Honors, Inc. and myself for services that will include a Motion for Pro hac Vice appearance, notice of appearance in the appellate court, preparation and signature of brief, and reply brief for homeowner.

STEP THREE: Payment of project fee in advance, non refundable. Execution of email retainer agreement after consultation with advisers.

STEP FOUR: Work commences.

PROJECT FEES: Upon completion of PDR PREMIUM our fees will vary from $3500 to $15,000. The average of such fees in simple cases with no ancillary or collateral proceedings is $3500. The average of all appellate cases is $5500. And the highest amount so far has been $15,000.

Any such engagement specifically excludes any action, pleading or filing in any court other than the appellate court in which the appeal is pending. I do not accept engagements to appear as trial counsel any more. Thus the case is remanded for further proceedings I can serve as litigation consultant but not as trial counsel.

The engagement fee also does not include any consultations with me or any member of my team that I select to work with me without advance payment at my hourly rate of $650 per hour or part thereof. After the work for the PDR PREMIUM has been completed any such consultation must be ordered separately. However, in the course of our work we will be periodically informing you of our progress and we will answer emails in which you request answers to specific questions. Those emails will in most cases come from me. In some cases I might find the need to contact you directly by phone to ask you questions. In such instances you will not be charged for the time spent on the phone as long as the call is less than 15 minutes.

Three Card Monty: Why is Pandemic Relief Going to Servicers? Why are they not claiming relief for REMIC Trusts? Will homeowner debts be reduced by Federal payments to “Servicers?”

https://www.nytimes.com/2020/04/21/business/mortgage-investors-coronavirus.html?referringSource=articleShare

By failing to require a credit to homeowners when the Federal government makes payments on claimed obligations, the bailout is simply adding to profit of investment banks, servicers and foreclosure mills. They are eating their cake and having it too. Obligations are paid off but their claim against homeowners remains unchanged.

Sign Petition to Change the rules to Protect Homeowners from Fraudclosure.

Foreclosures are filed in the name of a named Trustee for a collection of words that is then treated as an entity. More specifically it is treated as a trust. Sometimes the foreclosure mill goes further and says it is filed for the holders of certificates.

  • If a “trust” is the claimant in a foreclosure, why isn’t it a claimant in a plea for relief due to nonpayments from homeowners?
  • If the holders of certificates are suffering economic loss from nonpayment by homeowners why are they not the direct recipients of Federal relief?
  • Who is really going to get Federal bailout money and will it cover a loss or will it be profit?
  • If the ultimate result is that obligations are being paid, why isn’t the homeowner getting notice of a corresponding reduction in the amount of payments claimed as due?
  • Who is the real party collecting money and why?

The answers are obvious. Wall Street is again playing fast and loose with its labels to suit its own ends. If investors fail to receive payments promised them by the investment banks they have only the rights set forth in their contract with an investment bank —- the “underwriter” that underwrote the offering of certificates that were false labelled as “mortgage backed” and again falsely labeled as “bonds.” But the underwriter was actually the issuer. So the entire proceeds of sale of certificates went to the investment bank instead of a “REMIC Trust.”

And that is why there is no trust getting a Federal bailout and there was no trust getting a Federal bailout in 2008-2009. No trust has any claim to any money. So why are they Plaintiffs in judicial foreclosures and beneficiaries in nonjudicial foreclosures? Because the Wall Street banks are inserting a jumble of words to escape liability for making false claims.

Investors have no right to receive the payments from homeowners. So the relief package proposed by Fannie and Freddie is designed to shore up the value and liquidity of holding unregulated securities (certificates) in a market that is wholly controlled by investment banks (not a free market) and completely dependent on continued sales of certificates that are neither worthy of the high ratings conferred upon them by rating agencies nor worthy of being insured (unless the insurance contract is a ruse backed up by the expectation of a Federal bailout, again).

Hidden beneath the waves of economic loss and relief packages is an essential truth about what Wall Street has most people believing was the securitization of loans. But the loans were never sold, much less divided into pieces that were sold off as securities. It was personal data that was securitized and then there were complex instruments indexed on that personal homeowner data that was securitized. None of it had anything to do with the sale of any loan nor the collection of any money from homeowners.

While the foreclosure judgment and a sale of property  results in money proceeds, as I have reported here, it never goes to any Trustee, trust, or even investor. The money is sent to companies that have claimed to be servicers although they never say they are servicing on behalf of owners of the loans. that’s because the loans were never sold.

Those self-proclaimed “servicers” are actually collecting money for the investment banks who have labelled themselves “Master Servicers.” The investment banks receive money from multiple sources — continued sales of “certificates” (falsely  dubbed mortgage backed bonds), homeowner payments, and most importantly trading profits on various derivative and hedge contracts.

The obligation of the investment bank to make any payment to any investor who paid for a certificate is limited to their agreement when they purchased the certificate from the investment bank.

That obligation is in large part discretionary — i.e., it is based upon the sole discretion of the investment bank as to whether money paid to investors can be recovered and is further restricted by a discretionary determination s to whether there have been “events” based on indexing to certain data that is called “loan data.”

The servicing companies mentioned in the article cited above have no obligation to make any payments to the investors. Their function is to distribute money to investors by access to funds made available by the investment bank. And the assumption that their thin capitalization puts them in danger of extinction is a misapprehension of the true facts.

“Servicers” have no obligation to make payments to investors. None. Investors will get paid as long as investment banks see a reason to pay them. And the investment banks will see a reason to pay them as long as they can sell more certificates.

The proof is in the pudding. After the payments are made, homeowners are never given notice that the money claimed as due from them has been reduced. The game is on — get money from homeowners, force the sale of their homes even though everyone is getting paid. 

Neil F Garfield, MBA, JD, 73, is a Florida licensed 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:

If you want to submit your registration form click on the following link and give us as much information as you can. 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:
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CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT.  IT IS NOT A SHORT PROCESS IF YOU PREVAIL. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
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Please visit www.lendinglies.com for more information.

This will probably get me in plenty of hot water with lawyers. Homeowners should be winning foreclosures most of the time. The reason they don’t? — Ineffective Counsel.

The problem is not the judges. The problem is the lawyers who walk into court believing that the loan is real, claimant is real, the claim is real and that they are only looking for technical ways to get their client out of a valid deal.
The problem is exacerbated by magical thinking — that by pointing out bad acts by the foreclosure mill or servicer they will automatically cancel the mortgage, get quiet title and somehow the “debt” will disappear. Is it any wonder that judges are responding negatively to such assertions?
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Well I am rapidly coming to the conclusion that the primary basis for appeal in capital murder cases — ineffective counsel — is the real reason why homeowners think that the courts are ignoring the obvious. This is most manifest in a phenomenon I refer to as hallway trial lawyers. When they are speaking to their clients in the hallway outside the courtroom they sound great; but once inside the courtroom they are either mute or should be mute.
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Hallway lawyers can be great trial lawyers — if they would only prepare and obsessively roll the issues over in their mind as they approach a hearing or filing of a motion, pleading, or brief. And they would win far more often than they would lose if they did the work. That takes two things that most people lack — other than trial lawyers — commitment and courage. Like any performer you must give it your best and accept a pie in the face occasionally.
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In 45 years of litigation I have won and lost cases. Most of them I won. In hindsight I would say that virtually every loss is attributable to one factor —- lack of adequate planning, preparation and execution.
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My own experience is that when I have done my job as a litigator I have consistently successfully defended foreclosure cases because there is no case. That knowledge propels to me to object, challenge and refute basic assumptions in an orderly, timely and effective way. I am clear as to the basis of my objections and challenges and how it it lacks foundation, relevance or relies upon inadmissible statements or documents. And I am relentless. 
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While there are judges who simply refuse to consider any possibility of a homeowner victory, many of such judges can be turned when approached correctly. They are merely starting from assumptions they are required to make. They are not against the homeowner. They are for the rule of law.
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The problem is not the judges. The problem is the lawyers who walk into court believing that the loan is real, the claim is real and that they are only looking for technical ways to get their client out of a valid deal. The problem is exacerbated by magical thinking — that by pointing out bad acts by the foreclosure mill or servicer they will automatically cancel the mortgage, get quiet title and somehow the “debt” will disappear. Is it any wonder that judges are responding negatively to such assertions? 
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Why should any judge relieve a debtor of an obligation because of bad acts by a creditor? The answer is that they should not because if they did they would be destroying the foundation of a nation of laws. If you were owed the money then you would not think that is such a good idea either.
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That is why I strive to show the truth of the transaction between the homeowner and whoever sold the transactional documents for the homeowner to sign or the truth behind the acquisition of what had been a valid loan agreement.
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For the homeowner it was a loan and as soon as you admit that it was a loan, you are already in deep trouble. By admitting the loan you admit the existence of a conventional creditor and a conventional debtor. You also admit the existence of a conventional debt and you can’t contest  the non payment by the homeowner and therefore you are conceding that the homeowner is in breach of a loan agreement without excuse. Fabricating paperwork is no excuse to get out of paying a loan you received. You still owe the money.
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The lawyers and homeowners who complain that this gives them no place to go are missing the essential truth of Wall Street securitization: in nearly all cases the debt was never sold. If you start with the wrong premise you will always end up with the wrong result. 
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The entire enterprise was about selling and reselling private financial data of homeowners who for their part were tricked into thinking they were entering a loan agreement while the other side spared no effort in avoiding the title and liability of a lender under lending laws. That is not a loan and the agreement was not a loan agreement. 
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More importantly, the agreement might not be enforceable at all since (a) there was no meeting of the minds and (b) there was an absence of consideration caused by the payment of consideration together with an obligation to pay it back.
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For the investment banks this was solely about getting consent to sell private data and issuing sand trading securities based on the data not any debt. Anyone who does not understand the significance of that should probably not be litigating these cases. They will lose and thus contribute to the growing body of evidence that most people lose defending actions titled or labelled as foreclosures even though most people could win.
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Mass joinder and mass petitions to change the mandatory requirements for filing foreclosure actions can be done with direction from licensed people who actually understand that there is neither an actual claimant nor a claim in the creation, administration, servicing or enforcement of any transactional documents in which a homeowner is one of the parties.
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My opinion is that without central direction, preparation, investigation, and strategic and tactical planning by experienced trial lawyers, homeowners will continue to be food for a profitable scheme created and advanced by Wall Street.
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My opinion is that this is a massive social issue as well. By finally denying Wall Street banks of profit from foreclosures and all the profitable events leading up to foreclosure, the vast inequality of power and wealth can be addressed, at least in part.
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Neil F Garfield, MBA, JD, 73, is a Florida licensed 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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FREE REVIEW:

If you want to submit your registration form click on the following link and give us as much information as you can. 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 CONSULT (not necessary if you order PDR)
*
*
CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
*
FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT.  IT IS NOT A SHORT PROCESS IF YOU PREVAIL. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
*
Please visit www.lendinglies.com for more information.

The Problem With those Powers of Attorney

Just because a power of attorney appears to be facially valid doesn’t  mean that it IS facially valid, nor that it is substantively valid.

Sign Petition to Change the rules to Protect Homeowners from Fraudclosure.

Powers of Attorney are part of the strategy engineered by investment banks on Wall Street. Here is the problem with the POA or LPOA strategy.

In summary it is merely part of a larger strategy that seeks to create the illusion of real claims by real parties when in fact no such claim exists and no claimant exists. the claimant never gets the proceeds of foreclosure sale.

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The reason they do it is to insert an intermediary who can claim plausible deniability and that they were just following orders. It also serves the purpose of creating the illusion of a representative capacity between principal and agent.
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And that serves to create the illusion that the “principal” is somehow relevant to the transactional documents with the homeowner — although they never come right out and say that (because it is untrue).
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So the introduction of a Power of Attorney or Limited Power of Attorney is merely sleight of hand maneuvering to get a judge to believe that nobody would have gone to the trouble of creating and executing these documents unless there was something real going on. Unfortunately most lawyers, including those who represent homeowners in foreclosure, believe that to be true. As a result they completely miss the strategy that works in defeating such actions that are falsely labelled as foreclosures.
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Here is the truth.
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No POA ever gives anyone the right to claim ownership, control, administrative rights or the right to enforce any obligation of any homeowner. Instead it says it gives rights to speak for a label which may or may not be a legal entity — i.e., a “trust” which in fact is either nonexistent or “inchoate” under law.
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No trust, no matter how well written, creates a valid legal trust unless and until something of value is entrusted to the named trustee to hold for the benefit of defined beneficiaries upon certain terms expressly set forth in the trust. If the trustee does not own the alleged obligation, then the trust is irrelevant to any claim or proceeding.
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No named “trustee” has ever been party to a transaction in which the named trustee has ever received something of value from a seller or settlor who conveyed anything to the named trustee much less ownership of any obligation, note or mortgage from any homeowner.
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The existence of a note and mortgage is generally construed to be prima facie evidence of the existence of a loan agreement. But the absence of any “lender” conduct of the counterparties to those transactional documents demonstrates conclusively that there was no meeting of the minds. This leads to the counterintuitive conclusion that the investment banks wanted the transaction to look like a loan but but were completely unwilling to be considered “lenders” for purposes of compliance with lending statutes.
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The homeowner had every reasonable basis to think he/she was getting a loan — which means that there was a lender with a risk of loss and who therefore would not underwrite a transaction that was doomed to fail. Instead the real parties in interest, operating through dummy entities, were intentionally creating agreements that were extremely likely to fail. This enabled them to bet against the viability of those agreements. Therefore the less the quality of the appraisal, the loan terms, the household income etc., the more certain the investment bank could be of making money though failure of the DATA (not the debt) to perform. But since the investment banks and the homeowners had entirely different transactions in mind, there could be no meeting of the minds and there never was.
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None of the counterparties or their representatives ever considered themselves to be lenders. None of them ever purchased any obligation from a homeowner and registered such purchase as an asset receivable from a homeowner nor did they make an entry on the liability side of their balance sheet as a reserve for bad debt. Clearly nobody on the other side wanted to be liable as a lender for violations of lending statutes. None of them wanted to be “lenders.” Hence the transactional documents do not represent  meeting of the minds.
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Therefore, every such Power of Attorney grants nothing. It might be facially valid but it is not substantively valid because the purported grantor owned nothing and therefore could grant no powers over assets that were not owned.
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Note that I no longer refer to “loan documents.” Instead I refer to transactional documents. That is because I no longer believe that the transaction involving the homeowner should be referred to as a loan, even though that was what was intended by the homeowner. It wasn’t intended as a loan by anyone else who was directly or indirectly a counterparty to the transaction with the homeowner.
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In nearly all cases, the original transactional documents referred to the purchase of the homeowner’s consent and rights to resell personal data. The part of the transaction requiring payments from the homeowner was merely a vehicle for reducing the consideration paid for that consent. And the only place it is obliquely albeit not directly referenced as a loan is in actions that are falsely labelled as foreclosures. In all other transactions and documents the subject is clearly the sale and trading on data, not ownership of any debt owed by anyone.
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In a court of equity (i.e., foreclosure) the payment of consideration concurrent with an obligation to return that consideration should be treated as no consideration.
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Hence the apparent contract is rendered unenforceable for lack of consideration. This construction does not produce any financial loss to any party who paid consideration to the homeowner. All such parties are richly rewarded for procuring the signature of the homeowner far in excess of any claim for repayment of the consideration paid for the homeowner’s consent. This construction merely restricts the profits of the players in “securitization” to a level that is fair and proper after full disclosure.
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Further, in a court of equity, the payment of consideration for the consent of the homeowner to allow sale and resale of his personal  financial data should have been disclosed, was legally required to be disclosed and failure of which disclosure is a basis for the court to use its inherent authority to determine the amount of the compensation to be fairly paid to homeowners.
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That amount would be equal to what homeowners would have demanded in general and what investment banks would have offered as incentives in a free market with full disclosure.

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Neil F Garfield, MBA, JD, 73, is a Florida licensed attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.

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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
*
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Why Homeowners Lose Their Homes to Crooked Banks

The first and foremost thing about this is that where any loan is subject to claims of securitization, that claim is false. So no investor ever  bought any loan, debt, note or mortgage. Not ever. All documents claiming to memorialize such transactions are false. So the designated claimant has no claim.

To win these cases you must be realistic about what you are up against. The justice system doesn’t care about the merits of any claim, defense or denial unless it is properly and timely presented in accordance with the established rules of procedure and laws of evidence. It is not really an oversimplification to say that noncompliance with the rules means you lose even if you are right.

I can file a lawsuit against you, the reader, for anything right now even though I have no claim and I can win — and maybe claim your property to satisfy the judgement. The fact that I never had a claim is irrelevant to the system. Once the judgment or order is entered that is the law of the case. This is what crooked banks are using as their means to gain more profit through foreclosures.

[Practice Note: there is a very real privacy issue that has not been adequately explored in connection with homeowner transactions. If the true nature of the homeowner transaction was to obtain consent to sell private data then the consideration might be zero — because the money given to homeowners was offset entirely by a duty to pay it back with interest. So in addition to a lack of informed consent, the failure of consideration might negate all consent. This might augment a claim for quantum meruit for the real plan: the issuance and trading of securities.] 

The presence of questions does not mean that there is an absence of evidence. While the burden of proof is on the claimant to establish the necessary elements for a prima facie case, procedural law favors the claimant, especially in foreclosure cases. Homeowners can and should win, but they often lose because they think that being right is enough.

The apparent facial validity of the documents presented means that even if the documents were fabricated and the plaintiff was misrepresented as having legal existence, for purposes of the case, the judge is required to presume that the claim is true and that the claimant is real. the perpetrators of such a fraud get to enjoy the fruits of their labor. the property is sold and the proceeds are distributed as revenue without any accountability.

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Merely denying those facts is insufficient. You must be able to produce evidence to the contrary, to wit: either facts that show that the presumption is untrue or, more likely, the fact that the Foreclosure Mill was unable to or unwilling to answer basic questions about the ownership and authority over the debt.

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Many lawyers and pro se litigants make a common error. They think that by denying the existence of the plaintiff or the claim that they have shifted the burden back to the claimant or at least the Foreclosure Mill.  This assumption is misplaced particularly in foreclosure litigation. theoretically the denial of a fact that has been alleged is sufficient to force the claimant to prove the allegation of fact. But in foreclosures, thanks to form pleading, very few facts actually need to be alleged in order for a Judicial or non-judicial foreclosure to proceed.
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The denial from the homeowner is therefore a denial of facts that have not been alleged. It gets worse. The presumption arising from documents that appear to have facial validity ends the matter unless the court is faced with credible and persuasive evidence to the contrary.
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And the Foreclosure mill is never going to admit that it doesn’t have a client who is a claimant, and it is never going to admit that the claim doesn’t exist.
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The only avenue open to the homeowner is the exhaustion of all procedures and remedies under the rules of discovery. At the conclusion of that process, the homeowner will be in a position to argue that the failure of the opposition to answer the most basic questions about the claim that they have submitted, combined with their refusal to even follow court orders, should result in sanctions and further, should result in an inference that the claimant doesn’t exist and that the claim is without merit.
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This would not automatically mean that the homeowner wins the case. While sanctions under these circumstances could include striking the pleadings or the claim or the proof of claim in bankruptcy court, the judge is probably going to be more inclined to grant a motion in limine by the homeowner that prevent the Foreclosure Mill from introducing any evidence of ownership or authority over the debt, note or mortgage.
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That SHOULD end it but often doesn’t. Even then many courts will leave open the possibility of producing actual proof of ownership or authority over the debt. Appellate courts have been inconsistent in reversing or affirming such orders.

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The fact that they did not prove the claim independently of the legal presumptions merely means that the judge was satisfied that the prima facie case had been established.

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So the way homeowners are often presenting their position is basically that the judge should not have assumed that the elements of a prima facie case had in fact been established. But that means that you had introduced sufficient evidence to cast doubt on the validity of the documents relied upon in the foreclosure. By that point, the judge has already decided that you didn’t. You raised questions and denied things but you proved nothing.
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So you are now so far down the road in the Foreclosure action that it is probably impossible to reopen any form of discovery. This is why I recommend in such cases that you file an independent lawsuit that could survive a motion to dismiss. By filing lawsuit you raise issues that can be subject of inquiry in discovery, depositions, and subpoenas duces tecum.

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I think pro se litigants in particular also might be confusing the difference between a void judgment and an erroneous judgment. Arguments often appear to be directed to an erroneous judgment, although they contain good arguments against jurisdiction, which could be directed to characterizing the judgment as void. You need to be more specific that the judgment is void and why and not confuse your arguments of error with your argument of lack of jurisdiction.
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This is not something you’re going to be able to do on your own. You need to hire an attorney.
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SECURITIZATION NOTES: All securitizations I have reviewed have one thing in common: the sale of certificates that do not convey any right, title or interest to any debt, note or mortgage. No other financial transaction takes place after that point — except payment of some of the investor money to homeowners. Tax court cases make this abundantly clear: holders of certificates have no secured interest in anything and no interest at all in the performance or enforcement of any obligation.
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The transaction with homeowners was simply acquiring consent from the homeowner to sell private data multiple times to multiple buyers.
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No payments from homeowners — either voluntary or involuntary — are ever forwarded to anyone who has paid money. No proceeds from foreclosure are ever paid to reduce any debt because there is no asset receivable on any balance sheet in which the debt is claimed.
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Thus the presentation of a payment history in court is a distraction from the fact that there is no evidence of any records of any company that claims a loss from nonpayment on a debt.
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A proper objection to the introduction of such a document could be lack of foundation and lack of relevance — unless there is testimony or other evidence linking the payment history with the books of account of the claimant, there is no claim. But like all objections, if not timely raised it is waived. 
Neil F Garfield, MBA, JD, 73, is a Florida licensed 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. IN FACT, STATISTICS SHOW THAT MOST HOMEOWNERS FAIL TO PRESENT THEIR DEFENSE PROPERLY. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
*
Please visit www.lendinglies.com for more information.

Magic Bullet? Maybe this: the foreclosure “team” are all witnesses, not claimants

The fact that the foreclosure players know — or even witnessed — the fact that you refused to make any further payments makes them a witness, not a claimant. 
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The investment banks say they are not liable as lenders for noncompliance with lending laws. OK. A good lawyer can make a powerful argument for estoppel — the investment banks cannot take one position — that it wasn’t a loan in terms of regulation of lenders   — and then that it is a loan so they can foreclose without a creditor.
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Two wrongs don’t make something right. The fact that they used a shill as the originator doesn’t mean they are allowed or should be allowed to use another shill to falsely invoke foreclosure laws and procedures. You can’t foreclose on a debt that does not exist.
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Most homeowners take out their frustration by attacking the judge or the opposing lawyer. This is a mistake on many levels.
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My concern here is that you are far too interested in two subjects that have the least probability of you achieving anything. The object of your ire is understandable. But you may be playing into the hand of the banks if you continue.
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The Judge, even if he or she is the most reprehensible person on Earth, is simply untouchable without very specific evidence that links the Judge to a corrupt scheme in which the decision of the Judge is directly tied to the scheme and where the Judge receives a  specifically identified reward for a corrupt decision. This does not exist in your case and it rarely exists in any case. So attacks on the Judge’s integrity or intelligence will provoke what they would when you attack anyone for anything. They get defensive and antagonistic — just the opposite of what you need.

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The foreclosure mill, even if they too consist of the most reprehensible human beings on the planet, is considered immune from liability for misrepresenting things in court. You don’t need to agree with this for it to be true. And railing against that fact will get you nowhere. I have tried to go after the lawyers and the result has been consistently negative — claim dismissed because of “litigation immunity.”
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So going after the Judge and the lawyers is a waste of valuable time, money and energy — something that the banks need you to do because they are sitting on a plan that claims money due when there is no money due to them, if at all. That is foreclosure.
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So if you are addressing the Judge for example, you first do what you must do whenever you are attempting to establish rapport with anyone — find common ground. You talk about obvious things about which you all agree so you are perceived as reasonable.
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THEN you move on to your argument about how this situation does not lead to the same result as the conventional case of foreclosure where an actual creditor is actually claiming a right to payment of an actual debt that is actually carried on its books as an asset receivable, which means that nonpayment did in fact cause it financial injury.
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Under our laws and just plain common sense, if you see someone rob a bank for example, then you, as a witness, have no right to sue the robber for the money they stole; true simply because they didn’t steal it from you. Why should you get any money that was stolen from the bank? And that is your point. The fact that the foreclosure players know — or even witnessed — the fact that you refused to make any further payments makes them a witness, not a claimant. 
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And yet…. if you do make the claim against the robber and the bank failed to press its own claim, you could get a judgement especially if the robber failed to raise any defenses. After all he knows he stole the money. [I am not equating homeowners with robbers. I am equitating banks with a unscrupulous version of you, making a claim to which you and  they are not entitled to receive any redress under law or common sense.]
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The question is not whether you owed the money or had any reason to pay or not to pay. The question is why are they appearing as claimants instead of witnesses in a claim by someone who actually did suffer some financial loss caused by your alleged nonpayment.
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And the question is why isn’t such a person (creditor) present in the foreclosure? Where are they? Who are they? Do they exist? If they don’t exist, was the transaction with the homeowner actually a loan transaction or was it something else entirely that was disguised as a loan transaction? 
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So you START with the premise that all legal debts should be paid to the obligee — the person to whom the debt is owed. Everyone agrees with that. And you follow with the premise, under the U.S. Constitution, that only people who have been injured can seek redress in court. You get the judge to agree that everyone agrees that if someone fails to pay a mortgage debt to someone who owns it, they should be subject to foreclosure, forced sale of their home, no matter how long it has been in the family, and evicted if they try to stay anyway.
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You talk about it as though you are in favor of foreclosure because that is where every judge starts. You don’t talk about foreclosure as though it is a new scheme that doesn’t have any support in logic or law because foreclosure has existed for centuries. It must exist because if someone parts with their money to give you a loan, they must be able to force repayment if you are unable or unwilling to make repayment. But that does not mean that a witness to nonpayment can make a claim.
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And you must take the time to study and understand the true nature of what has been really been going on. Securitization is by definition the issuance of securities. While it can be a source of financing it is just as often a means to distribute risk. The reason why thinly capitalized companies like DiTech and Quicken Loans were given hundreds of millions of dollars to sell trillions of dollars of low interest loans was not because the investment banks had come up with a new formula to squeeze profit out of low interest payments.
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It was because the return of principal and interest payments was irrelevant to their plan. The “failure” of such repayment plans was a centerpoint of the plan and they bet on it, making more and more money as each “loan” “failed.” Their plan was to sell securities. And the more securities they sold the more money they made because unlike all other securitization plans, they were not selling securities from an independent legal entity (client) that was going into business and using the proceeds to conduct or grow its business.
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Instead they were selling securities for themselves, taking the money and using as little of it as possible to cover the scheme. The money used to create the illusion of loans was a cover for the real scheme.
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The money, if any, that was sent to closing agents to close a transaction that was inaccurately described as a loan transaction was not delivered by the banks with the intent of creating a conventional loan product subject to lending laws. That would have made the investment bank a lender and they would have been named as such on the note and mortgage.
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Quite the contrary. It was designed to evade lending laws in a scheme that had has its hallmark claims by the investment banks, who were running the show, that the scheme did not subject them to lending laws and was not a loan. 
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By designating a false flag “originator” who was contractually unrelated to the investment bank and who received fees and bonuses from acting as though it was a lender, the banks now claim that they are not regulated by lending laws.
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My position is take them at their word and stop fighting them.
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OK, you are right but the only reason you are not subject to lending laws is that you did not engage in lending. So the money that arrived at the closing table was disguised conditional payment in exchange for a the homeowner’s signature on documents that could be used to fill in data on a spreadsheet.
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It was that data (not the loans) that was sold dozens of times thus relieving the investment bank from any risk of loss. The money was a fee paid to homeowners who were lured into transactions that were fraudulently disguised as loans but were in fact part of a plan to steal money and homes.
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Foreclosure is sought because it represents still more revenue and because by not foreclosing the banks would be admitting this wasn’t a loan in the first place. The money that went to homeowners or which was paid on their behalf was not a loan — it was only part of payment of a fee to which the homeowner was entitled (under quantum meruit) but knew nothing about and never had any opportunity to engage in free market negotiation.
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The reason why (a) there is no creditor and the reason why (b) all the documents are fabricated and (c) all this testimony is pre-scripted for perjury is simply that it wasn’t a loan to begin with — and nobody now is carrying the loan as an asset receivable on their books. NOBODY! The loan does not and never did exist. And that is because the money received was not a loan, it was payment for signature and implied consent to use private data for resale.
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The most basic law of contract is that there must be, at the outset, a meeting of the minds. The homeowner went into the transaction believing the false assertions that the money was a loan — instead of consideration for use of his or her private financial information and his or her signature.
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The investment bank went into the transaction through a myriad of sham conduits posing as “lenders” for exorbitant fees. The investment banks were not lending money. They were paying money so they could issue and profit from the sale of securities in “securitization.” Without that there would have been transaction at all. Refer to the “Step Transaction Doctrine” and “Single Transaction Doctrine” for support in case decisions and statutes. You’ll find multiple references on this blog from the early days (2007–2008) of this blog.
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The investment banks say they are not liable as lenders for noncompliance with lending laws. OK. A good lawyer can make a powerful argument for estoppel — the investment banks cannot take one position — that it wasn’t a loan in terms of regulation of lenders   — and then that it is a loan so they can foreclose without a creditor.
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But to get the judge to even consider such an apparently ridiculous assertion you need to demonstrate, step by step, relentlessly, that the foreclosure team has nothing. That doesn’t happen in one pleading or one hearing. It ONLY happens if you know and consistently use and apply the rules and laws relating to court procedure, discovery and trial objections.
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PRACTICE NOTES:
This argument can be made directly where the transaction was originated by the investment banks. Don’t get lost in the “warehouse lender” thickets — they were just one of many steps in a the circuitous process by which investment banks gave money to homeowners.
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But where a real loan was actually made by a real lender and then acquired by investment banks through what they called “securitization” then the argument shifts to the idea that the debt was extinguished at acquisition. this is because when all was said and done there was no creditor who was holding the debt as an asset receivable on its books.
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The fundamental point here, which can be corroborated with any knowledgeable person in the world of finance, is that neither the delivery of money to homeowners nor the acquisition of the debt after a real loan was originated was related to securitization as it had ever been done in the past.
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Securitization is simply the process of dividing up an asset into shares and selling them. This was never done in connection with these transactions. Nobody ever received a share of any loan. Securitization in this context consisted solely of the issuance of securities by the securities brokerage firm (investment bank) posing as an underwriter for a “trust name” that was merely a fictitious name of the the underwriter itself. That is not securitization. The job of the litigator is to gently and relentlessly lead the judge to conclude that this might indeed be the case and thus deny the foreclosure.
====
Neil F Garfield, 73, is a Florida licensed attorney. He has received multiple academic and achievement awards in business and law. He is a former investment banker. securities analyst, and financial analyst.

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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. IN FACT, STATISTICS SHOW THAT MOST HOMEOWNERS FAIL TO PRESENT THEIR DEFENSE PROPERLY. EVEN THOSE THAT PRESENT THE DEFENSES PROPERLY LOSE, AT LEAST AT THE TRIAL COURT LEVEL, AT LEAST 1/3 OF THE TIME. IN ADDITION IT IS NOT A SHORT PROCESS IF YOU PREVAIL. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
*
Please visit www.lendinglies.com for more information.

Tonight! Don’t stop fighting or thinking about tomorrow! 3pm PDT 6PM EDT

Thursdays LIVE! Click in to the WEST COAST Neil Garfield Show

with Charles Marshall and Bill Paatalo

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

 

The 2008 crash may seem like 12 years ago. Yet the conditions persist – victimizing both homeowners and investors. Homeowners still have no frame of reference or education as to how they could receive a loan without anyone owning the debt and why anyone would be party to such a transaction. Arguably investors by this point should know better. The problem is money — stockbrokers get to call themselves investment banks and courtesy of the 2008 crash they created are now commercial banks too. They are making money hand over fist on every sale of a “certificate,” “derivative” and homestead.

Bill Paatalo will discuss on the Show today how he is taking the fight to the Defendants in his Oregon case, previously discussed on the Show, in which the Defendants are now seeking massive attorney’s fees, over six-figures. The same Defendants who managed to secure a judgment based on lack of subject matter jurisdiction, are claiming now this same Court has jurisdiction to bring an attorney’s fee motion never raised in previous pleadings. The game is on. The “banks” are taking the position that they can eat their cake and still have it.

Charles Marshall will discuss how the ongoing institutional bias issues long present in foreclosure law cases is stubbornly creating a messy and patchwork terrain for borrowers to navigate in the COVID-19 era, with a focus on California. He will address this through an update of particularly the latest California-based coronavirus-related developments in court access, foreclosures, and post-auction evictions.

Brilliant Analysis of Securitization Sleight of Hand

A person with whom I am well acquainted and who prefers to remain in the background just sent the following email to me, Bill Paatalo and Charles Marshall.

Thanks to the Virus, I had some free time to catch-up on Neil’s blogs and radio shows; as such, I just listened to your piece with Charles on the Christiana Trust counter-suit.  One thing that took me by surprise is that Rushmore is seemingly linked to that trust (or phantom trust).

While you may recall, one of my cases (my principal mortgage) that began with GreenPoint, then supposedly was taken-over by Capital One, was passed to Rushmore upon Cap-One exiting the mortgage business, but then oddly got repositioned with Carrington.  I discovered that Carrington was the principal player of Christiana Trust and its nesting of it, into Wilmington.  However, that trust tomfoolery now has been superseded by the Stanwich Trust bag of snakes.

Hence, Stanwich is nested into Wilmington.  It seems to me that the real player is Carrington.  I discovered that Stanwich has lots of offshoots, i.e. a list of trusts (A, B, C, etc.) registered in Delaware, but also other entity permutations of “Stanwich” (https://whalewisdom.com/filer/stanwich-mortgage-acquisition-company-llc).

If you prowl around SEC docs, you’ll notice that the signatory of Stanwich Acquisition is Andrew M Taffet.  Mr. Taffet also happens to be the Chief Investment Officer & Head of Asset Management at Carrington Capital Management (i.e. LINKEDIN).

After looking in a bunch of dusty corners, I suspect that my mortgage, originated by GreenPoint in 2005 (then a wholly owned subsidiary of North Fork Bancorp) was likely securitized (I’m thinking either Lehmann or Bear, but could have taken another or other routes).  Since CapOne retained the image datafile, they had access to an image of the Note which they then reconstituted and indorsed the falsified/forged note and presented it as prima facie evidence of ownership.  But piecing together my conjecture, it gets worse…

When CapOne decided to jettison all of these dubious notes and claims in 2018, they handed the box of bullshit to Carrington who poses as the new servicer, saying that Wilmington is the Owner.  But not really Wilmington per se.  “Wilmington as Trustee of Stanwich Mortgage Loan Trust A”. This is a bit of sleight of hand.  Wilmington “as” Trustee “of”.  For this charade let’s turn to Abraham Lincoln’s Gettysburg Address. “of the People, by the people and for the people” – three distinct prepositions (Of, By & For).  Wilmington claims in its moniker to be “of” Stanwich, not “for” Stanwich.  Example if Tom Brady plays some tag football with me and my buddies in the park, he is still Tom Brady “of” the Tampa Bay Buccaneers, but he is not playing with us “for” the Buccaneers – a subtle but profound difference.

Digging deeper, I found that Cap-One seems to own shares/units in Stanwich Acquisition Securities, which causes me to think that there was no money changing hands, CapOne simply exchanged fraudulent mortgages for shares  After all, the (CapOne) had no skin in the game anyway.

The GreenPoint saga is equally as convoluted.  I know that you know that GreenPoint Mortgage Funding, Inc. “surrendered” is California operation back in 2004.   But this tale is very circuitous and dubious.  Without belaboring the details.  GreenPoint Bank evolved in to GreenPonit Financial, with GreenPoint Bank and GreenPoint Mortgage as subs in or around 1998.  Notwithstanding, there was another Corporation registered in NY (Credit Suisse Asset Management, Inc.)  Somehow, in 1999 coinciding with GreenPoint merging with Headlands Mtg of California and folding in a couple of other acquisitions, the company took on the moniker GreenPoint Mortgage Funding Inc nearly simultaneously with Credit Suisse Asset Management Inc. changing its name to GreenPoint Mortgage Funding, Inc.  This also coincided with t a shell company set up in Delaware of the same name.  it’s quite a labyrinth of which I ‘ve unraveled some but not all.

Anyway, I though the Stanwich/Christiana trust thing might be of interest to you, Charles and Neil.  As you likely know, Cristiana Trust is a division of Wilmington Savings Fund… https://www.globenewswire.com/news-release/2017/11/02/1173772/0/en/WSFS-Announces-Formation-of-Christiana-Trust-Company-of-Delaware.html  Anyway, I suspect that the trust game Cristian and Stanwich, are just part of the game to cross state lines for the mortgages being claimed to be in the trust.  However, Delaware statutory trusts (DST), which exist to facilitate 1031 exchanges and REITs, are there to use Wilmington as a disguise to file foreclosure suits across state lines.  But in truth, a DST is likened to a corporation not a traditional trust, and if Wilmington is acting “as” trustee “of” a trust, then the underlying trust has no personal jurisdiction to cross state lines to sue.

Hope you find this interesting,

How to Challenge The Credibility of Documents Offered to Support Foreclosure

Legal presumptions are not meant to be used as a means for achieving an illegal or unjust result. But they do exactly that when apparently facially valid documents are left unchallenged.

A successful challenge to the credibility of the source of documents initially filed in foreclosure will end the case in favor of the homeowner. the reason is simple: with legal presumptions operating in favor of the foreclosure mill they have no case to offer or prove.

If you start at the beginning and challenge the narrative immediately it can and should lead to excellent results for homeowners under siege by profiteers seeking to force the sale of the subject property.

The plain truth is that all documents from securitization schemes seeking to foreclose are false. But at first glance they appear to be facially valid, which only raises legal presumptions if the deems the document to come from a credible source. This is true in all jurisdictions.

It’s high time for lawyers and pro se litigants to challenge the presentation of initial documents as coming from a source that (1) has a stake in the outcome and is therefore biased and (2) not credible based upon administrative findings in all 50 states in which the documents were not merely found to be defective but also untrue.

In all cases based upon securitization schemes, not even the named Plaintiff knows who owns the debt, note or mortgage. Ask anyone. Even in appellate proceedings the foreclosure mills had to admit they had no idea about the identity or existence of a creditor.

In other cases, attorneys were forced to admit that they never had any contract or or even CONTACT with their “client.” Cases whose style beings with the words “US Bank. Deutsche Bank, or Bank of New York Mellon” are sham cases with sham clients. The lawyer is neither instructed by nor paid by the bank nor is to processing the foreclosure on behalf of either the bank or any trust.

The same lack of knowledge is true for the foreclosure mill who operates under the protection of litigation immunity, the servicer who is receiving instructions from an investment bank posing as Master Servicer, a trustee who has no knowledge or administrative powers over the loan, a trust that has never been party to negotiation or sale of the debt or note or mortgage.

see RobosigningAdministrativeOrder

In all 50 states you have administrative orders in the courts, and administrative findings by the Departments of Justice and Attorneys general and even county clerks that point out with specificity the fact that the documents used by foreclosure mills were faked. That is fact, not opinion.

In hundreds of cases including some where I was lead counsel, there are specific recorded findings from trial judges as to how the foreclosure was faked.

It should not be that hard for lawyers to argue to the court that given the amount of work done (thousands of man hours) investigating the mortgage lending and foreclosure practices, some credence should be given to the now universal view that the documents were faked.

There can be no dispute that the documents all come from parties who have a unique and essential interest in the outcome of the foreclosure claim — i.e., preservation of revenue and achievement of additional revenue arising from the proceeds of a forced sale, none of which will be directed to anyone who paid value for the debt, note or mortgage.

The indicia of credibility and reliability are simply not there. And the indicia of lack of credibility and reliability are all there. Legal presumptions therefore are not legally available. 

It is not a big leap to also argue that the documents contained data that was also also untrue because in every case where the documents were faked, there was no follow up of actual evidence or proof of the claim.

It never happened that the investment banks said “ok, just to make everyone feel better here is the actual proof that the loan was owned by XYZ Corp, who suffered an actual (rather than hypothetical) financial loss arising from nonpayment of the debt. So the foreclosure although based upon false documentation did not produce an unjust result.”

That didn’t happen because there was no such evidence. In every case the foreclosure resulted in a windfall profit to all the participants in the foreclosure.

Remember you are simply challenging the presumption, thus allowing the claimant to prove its claim without the presumption. that is exactly  what the rules require. The fact that you defeat a presumption and that the claimant’s attorneys are forced to actually prove the truth of the matters asserted on the documents is not a stand alone reason for entry of judgment in favor of the homeowner.

THIS IS NOT A PUNISHMENT WHERE THE CLAIMANT IS DEPRIVED OF ITS CLAIM BECAUSE IT DID  SOMETHING ILLEGAL. IF THEY CAN STILL PROVE THE CLAIM, THEY WIN.

If indeed the homeowner does owe money to the claimant and they are both parties to a loan  agreement that the homeowner has breached then the claimant is entitled to foreclosure.

Legal presumptions are not meant to be used as a means for achieving an illegal or unjust result. But they do exactly that when apparently facially valid documents are left unchallenged.

In virtually all cases, such documents are not even facially valid, once you examine the contents and the signature block. Look at it. Study it. And then create your defense narrative. 

These cases are winnable because they should be won by homeowners not because of some technical argument.

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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. IN FACT, STATISTICS SHOW THAT MOST HOMEOWNERS FAIL TO PRESENT THEIR DEFENSE PROPERLY. EVEN THOSE THAT PRESENT THE DEFENSES PROPERLY LOSE, AT LEAST AT THE TRIAL COURT LEVEL, AT LEAST 1/3 OF THE TIME. IN ADDITION IT IS NOT A SHORT PROCESS IF YOU PREVAIL. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
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Bank of New York Mellon faces a reckoning from residential foreclosure cases in New York that date back to the subprime mortgage crisis.

The sooner everyone realizes that these foreclosures are merely schemes to generate revenue the closer we will come to justice. The fact that is that anyone who has paid value for the debt is getting paid pursuant to a third party agreement that has very little relationship with the performance or non performance of the borrower. Investors either get paid even if the borrower is not performing or they don’t get paid even if the borrower is performing.

In their efforts to assure the sanctity of contract, judges are routinely delivering revenue — not payment of a debt — to the perpetrators of an illegal scheme labeled by  lawyers as a foreclosure but which is not a foreclosure because foreclosures ONLY serve as remedies for restitution of an unpaid debt. It is not the fault of borrowers that this anomaly as appeared, which incidentally is the mask for multiple sources of revenue greatly exceeding the loan itself.

As usual investment banks having the greatest access to the microphones have convinced most people that this is a question of whether or not homeowners should get a free house. This distracts attention from the fact that they are getting free money based on claims for debts they don’t own.

see https://therealdeal.com/2020/01/16/bny-mellon-faces-suit-over-foreclosures-from-the-housing-crash/

From the article

The bank — along with its debt-collector partners Shellpoint Mortgage Servicing and law firm McCabe, Weisberg & Conway — are accused by a class-action lawsuit of systematically trying to foreclose on mortgages after the state’s six-year statute of limitations had passed.

Mark Anderson, an attorney at the Queens-based law firm Shiryak, Bowman, Anderson, Gill and Kadochnikov, which filed the case, said his firm noticed an uptick in foreclosure cases initially filed in the wake of the subprime crisis more than a decade ago and now being revived, despite the statute of limitations expiring.

“I have over 500 cases that are dealing with this issue — and that’s just my firm,” said Anderson. He believes thousands of homeowners could qualify to be part of the suit if it gets class-action status.

The complaint was filed in the United States District Court for the Southern District of New York in November. The defendants are accused of resurrecting foreclosure actions that have expired and, in doing so, violating the Fair Debt Collection Practices Act, which prevents debt collectors from using false and deceptive representations.

Anderson said his firm filed the suit now because of recent federal court rulings that he believes are favorable to holding to foreclosure firms, servicers and banks liable for violations of the act.

The law awards consumers statutory damages of $1,000 per violation, attorneys’ fees and — in some cases — damages for proven emotional or physical harm.

PennyMac Laundromat: Is anything real there?

PennyMac appears to be a vehicle of “cleaning” fatal title deficiencies to the debt, note and/or mortgage on loans. It operates on behalf of CitiMortgage and multiple other entities on loans where the selection of a claimant is essentially random.

The basic playbook of the banks is to insert a real business entity with no actual connection or transaction involving payment of value for the debt, note or mortgage and fabricating documents to imply that such transactions exist. My investigation and that of others reveals that PennyMac is one such sham conduit, in order to create documents that give rise to the legal presumptions that are available when a document appears to be facially valid.

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GET FREE HELP: Just click here and submit  the confidential, free, no obligation, private REGISTRATION FORM. The key to victory lies in understanding your own case.
Let us help you plan for trial and draft your foreclosure defense strategy, discovery requests and defense narrative: 954-451-1230. Ask for a Consult or check us out on www.lendinglies.com. Order a PDR BASIC to have us review and comment on your notice of TILA Rescission or similar document.
I provide advice and consultation to many people and lawyers so they can spot the key required elements of a scam — in and out of court. If you have a deal you want skimmed for red flags order the Consult and fill out the REGISTRATION FORM.
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THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
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PennyMac is generally used as a vehicle to launder bad title and pursue foreclosures on behalf of entities that have no right, title or interest in the debt, note or mortgage. Generally speaking all of the documents that purport to involve PennyMac and its predecessors are fabricated and false. They are false because they falsely imply the existence of financial transactions in which value was paid for the debt.
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All residential home loans are about money and nothing else. The banks seek to distract you and the courts from looking at the money and instead, direct you into looking to documents. If I produced a document that looked facially valid, a judge might accept it as valid and true even though the matter asserted in the document is actually untrue. So for example if I were to produce a “facially valid” document saying I am your father, it wouldn’t be true but it would still be taken as true until you rebut the presumption arising from the “facially valid document.
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So the first step is really examining a document to determine whether it is facially valid. There are times, strategies and tactics where it might be wise to direct the court’s attention to this issue by simply filing a motion that disputes the facial validity of a particular pleading oir document and asks for an evidentiary hearing on the subject. Some judges grant such motions because a ruling from such a proceeding might propel the case to an early end.
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A facially valid means what is says. If the document recites all the elements required by statute and it is properly signed (and notarized if so required), the document is facially valid and the legal presumptions are available to the proponent of such a document or pleading.
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So the court takes as true all assertions on the face of the document. A document is not facially valid if it is impossible to determine what is asserted as factually true.
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A reference to an external document that is not attached or even identified frequently results in a dispute over the facial validity of the document which may require an evidentiary hearing on the validity and authenticity of the document. But if the opposing party fails to raise such an objection the document will be accepted as facially valid and then the factual assertions contained or implied by the document will generally be taken as true.
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The debt lies at the root of the loan, the servicing, the collection, and the enforcement of the loan. Without the debt, there is no authority. Without the debt the action is not a foreclosure even though the lawyers label it as a foreclosure. The lawsuit or notice of sale is merely a device to generate revenue which is expressly void against public policy and law.
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The problem is that the banks developed a scheme by which investors paid for the debt and never received ownership of the debt, note or mortgage. This means that third parties receive borrower payments, insurance payments, bailout payments and proceeds of foreclosure sales — something which is not allowed under current law, nor should it be allowed.
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None of these third parties ever turn over such money to the investors who paid for value but did not pay value in exchange for ownership of the debt. As a result, any document implying the transfer of the debt through payment of value is substantively invalid because no such transaction ever occurred in the real world.
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There is no reason for a “successor” to pay a “predecessor” if neither of them owned the debt. The only way you get to own a debt is by paying for it with real value which means money. When you ask for a description of such transactions you will be met with a variety of obscure objections whereas if they had it, they would gleefully reveal it. Neither the note nor the mortgage (or deed of trust) can be actually fully separated from the debt because the obligation to make payment on the debt is all that those documents are about.
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I’m not saying the debt doesn’t exist. I’m saying based upon review and analysis of documents, there is nobody in the chain of title relied upon by your opposition who has ever participated in a transaction in which value was paid for the debt. Ownership of the debt can only be accomplished, based upon my research, by payment of value for the debt. See Article 9 §203 of the Uniform Commercial Code as adopted by all U.S. jurisdictions including your own.
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Payment of value for the debt is a condition precedent to enforcement of the debt. This is both common sense and statutory law. If “servicing”, administration, collection or enforcement of the debt is performed on behalf of a claimant that does not own the debt, then the condition precedent is not met. Such actions are illegal and any documents that are created to support such illegal actions are void.
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If the “servicer” or holder of a limited power of attorney, as in many cases, is not the legally authorized representative of a party who possesses ownership of the debt (i.e., they paid for it) then their actions are illegal, unauthorized and probably fraudulent. In a foreclosure the court must know (not hope) that the proceeds of the foreclosure sale will go to a party or group of parties who paid value in exchange for ownership of the debt. If the court does not know that, it isn’t a foreclosure, which is a remedy exclusively designed to provide restitution of an unpaid debt. 
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The issue confronting you is that the documents, at first blush, appear to be facially valid. But the reference to an unidentified unattached external document like a Power of Attorney in lieu of an actual servicing agreement reciting the authority of the parties, makes such documents facially invalid but still subject to proof. Upon proving authority as I have outlined above, the document could be deemed valid, if the proffering party proves the line of succession that starts with an owner of the debt. In virtually all “securitization” cases I don’t think any such line of succession exists.

Navigating LOST COMMUNICATION With “Servicers” Who Are in Reality Merely Steering You Into Foreclosure

The main point is that borrowers must calibrate their thinking. Debtors are not dealing with anyone who wants to collect payments. They are dealing with someone who wants a foreclosure so they can steal the proceeds. The forced sale of the house generates revenue that is distributed to several players involved in the foreclosure effort and several players involved in the REO sale and eviction.

The rest of the money goes to the securities brokerage firm (investment bank) where there is no loan receivable account against which to credit the deposit. In short, while labeled as various vaguely described transactions, the substance of the deposit is that it is revenue even if it is not declared as such for tax purposes.

Against this backdrop a common complaint I receive is that borrowers are in good faith attempting to make payments or send documents requested by the “servicer” only to find that they are unable to do so or that the documents were lost. So they ask me what to do next.

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GET FREE HELP: Just click here and submit  the confidential, free, no obligation, private REGISTRATION FORM. The key to victory lies in understanding your own case.
Let us help you plan for trial and draft your foreclosure defense strategy, discovery requests and defense narrative: 954-451-1230. Ask for a Consult or check us out on www.lendinglies.com. Order a PDR BASIC to have us review and comment on your notice of TILA Rescission or similar document.
I provide advice and consultation to many people and lawyers so they can spot the key required elements of a scam — in and out of court. If you have a deal you want skimmed for red flags order the Consult and fill out the REGISTRATION FORM.
PLEASE FILL OUT AND SUBMIT OUR FREE REGISTRATION FORM 
Get a Consult and TERA (Title & Encumbrances Analysis and & Report) 954-451-1230. The TERA replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
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RULE #1: STOP CALLING THEM “THE BANK.” THEY ARE MOST LIKELY NOT THE BANK — AND THEY DO NOT EVEN QUALIFY AS SERVICERS IN MOST INSTANCES. THINK OF THEM AS SCAM ARTISTS WHO HAVE GAINED YOUR CONFIDENCE (I.E. CON MEN) TO PREVENT YOU FROM INQUIRING ABOUT WHO SHOULD BE RECEIVING YOUR PAYMENTS OR THE PROCEEDS OF A FORECLOSURE SALE. 

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Technically you are most likely NOT dealing with anyone who qualifies as a creditor nor even a debt collector, who could only be functioning on authority from an actual creditor. So theoretically you would be well within your legal rights to simply not pay money to a party who is not entitled to receive them.
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Reality is different from theory. While in past times anyone attempting to collect, process or enforce a debt would be required to disclose everything about their ownership, agency or authority, today virtually everyone presumes that any such party has legal status. Because of that presumption, refusing to make payments as demanded is fraught with the risk that (1) the pretender lender will declare you to be in default and (2) start enforcement proceedings against you based upon fabricated but nonetheless facially valid documentation.
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So my usual and primary advice is to refrain from any action or inaction that puts you in a worse position than the one you find yourself. And I always recommend at least consulting with local counsel before deciding on any course of action.
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That usually means you make the payments.
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The only other alternative is to file a lawsuit in which you ask to deposit the funds in the court registry because you want to make the payments but you don’t believe the party demanding those payments has any actual legal right to do so.
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INTERPLEADER: An interesting twist on this type of pleading could be that you file your lawsuit, asking for attorney fees, and name both the servicer demanding payment and the investment bank (securities brokerage firm(s)) that is/are most likely behind the securitization scheme. This would be an interpleader lawsuit that basically says I have this money, it is for a debt I owe, Party A demands it, but I think Party B might be the one to whom it is owed. I have no assurance from Party A that the money would be given to Party B or any other entity that has paid for the debt and is therefore entitled to receive the proceeds of my payments. I don’t care who gets it. I just want to know who to pay. 
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In a further twist (which could negate your right to receive attorney fees) such an action could also include a count for disgorgement if the court finds that the party demanding payment was not entitled to receive it. That could mean return or deposit of all money ever received by the parties named as respondents in the interpleader action.

Generally, disgorgement is a form of “[r]estitution measured by the defendant’s wrongful gain.” Restatement (Third) of Restitution and Unjust Enrichment § 51, Comment a, p. 204 (2010) (Restatement (Third)). Disgorgement requires that the defendant give up “those gains … properly attributable to the defendant’s interference with the claimant’s legally protected rights.” Ibid . Beginning in the 1970’s, courts ordered disgorgement in SEC enforcement proceedings in order to “deprive … defendants of their profits in order to remove any monetary reward for violating” securities laws and to “protect the investing public by providing an effective deterrent to future violations.”Texas Gulf,312 F.Supp., at 92.

Kokesh v. Sec. & Exch. Comm’n, 137 S. Ct. 1635, 1640 (2017)

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Federal jurisdiction could apply.

Whereas statutory interpleader may be brought in the district where any claimant resides ( 28 U.S.C. § 1397), Rule interpleader based upon diversity of citizenship may be brought only in the district where all plaintiffs or all defendants reside ( 28 U.S.C. § 1391 (a)). And whereas statutory interpleader enables a plaintiff to employ nationwide service of process ( 28 U.S.C. § 2361), service of process under Rule 22 is confined to that provided in Rule 4. See generally 3 Moore, Federal Practice ¶ 22.04.

State Farm Fire Cas. Co. v. Tashire, 386 U.S. 523, 530 n.3 (1967)

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In all events any attempts at communication or payment that are frustrated by the party demanding that payment should be documented by U.S. Postal Service, Certified Mail, return receipt requested — because your attempts will be denied. The robowitness or affiant on an affidavit will say there is no record of such attempts. LIke the above, an interim measure would be to pay the money into a trust account administered by an attorney or some other legally recognized escrow agent.
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I have seen many judges ask the borrower who relates this story what they did with the money after it was refused. If there answer is that they spent it, the judge often construes that as undermining the credibility of the borrower’s testimony. But if the borrower says it was paid into escrow where it still remains most judges regard that in a light favorable to the borrower and it raises their antagonism toward the lawyers and the servicer who are now presumed to have screwed things up even if they were actually entitled to collect, process or enforce the debt.
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PRACTICE NOTE: While actual tender of actual payment certainly bars any legal enforcement action to collect the tendered payment, it does not render the entire lien unenforceable. BUT if the notice of default and end of month statements show an amount due that should have been reduced by the amount of the tendered payment then the notice of default and subsequent notice of sale or lawsuit could be defective. And if the refusal to accept payment was part of a larger scheme to steer the borrower into foreclosure, that i sone building block in a case for illegal, fraudulent and/or wrongful foreclosure. 
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Beware of the proof requirements against a court bias that the borrower was probably trying to game the system. We all know that it is the other side gaming the system but the court presumes otherwise, partly because it is legally required to do so based upon the facial validity of the documents presented — even if they are fabricated. For that reason I frequently suggest attempts at payment or delivery of documents in person at a branch or regional office, witnesses to such attempts, photos, and even video, where it is legal to do so. Signs posted to the effect that there is video surveillance might suffice as permission to record. Check with local counsel.
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In addition, in litigation you can demand copies of recordings made at particular locations and/or times. The response will be they don’t have that recording but if you can get a judge to require them to produce the recordings on either side of the time frame in which the contact occurred, they will likely retreat because the absence of the video or audio recording will speak volumes about their conduct.

Defending Foreclosure is Practice Not Theory: Discovery is the Key

I’m not sure why there are people who are calling my approach theoretical. My focus is strictly practical — using the rules of civil procedure to expose the truth of the matter asserted. Specifically, the end result should be and most often is that the opposition either dismisses the claim, or the court bars them from proceeding when the are unable or unwilling to answer interrogatories and requests to produce.

Based upon what some people are writing to me I think that they are either skipping discovery entirely or they are using a shotgun approach in discovery. The questions and requests must be properly worded and directed to the only thing that is in dispute — whether the claimant has suffered any financial injury as a result of the admitted nonpayment on an admittedly existing loan.

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GET FREE HELP: Just click here and submit  the confidential, free, no obligation, private REGISTRATION FORM. The key to victory lies in understanding your own case.
Let us help you plan for trial and draft your foreclosure defense strategy, discovery requests and defense narrative: 954-451-1230. Ask for a Consult or check us out on www.lendinglies.com. Order a PDR BASIC to have us review and comment on your notice of TILA Rescission or similar document.
I provide advice and consultation to many people and lawyers so they can spot the key required elements of a scam — in and out of court. If you have a deal you want skimmed for red flags order the Consult and fill out the REGISTRATION FORM.
PLEASE FILL OUT AND SUBMIT OUR FREE REGISTRATION FORM 
Get a Consult and TERA (Title & Encumbrances Analysis and & Report) 954-451-1230. The TERA replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
========================

If you think the approach is theoretical you are misapprehending the simple strategy that I propose. The issue is not complicated: does the claimant have a right to foreclose because they are seeking restitution of an unpaid debt owed to the claimant? If the answer is no, which is usually the case in loans subject to claims of securitization, then the reason is that the claimant doesn’t own the debt. The rest of the allegations are true — the existence of a loan, the nonpayment etc.

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The theory behind the approach is complex but that is not something that homeowners can or should try to prove. It is merely an anchor for the strategy so the lawyer does not lose his or her way.
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Documents will all say things that would lead to the opposite conclusions. But the actual facts are opposite. It is the burden of the homeowner in foreclosure to ask questions and demand production of documents that support the claim that the debt is owed to the claimant because the claimant owns the debt and has suffered injury from nonpayment (default).
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Once the homeowner establishes that the opposition is unwilling or unable to respond to those questions and demands, the legal presumptions arising from what the documents state can be and usually are undermined — even raising the inference or presumption that the claim is false.
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But even if the inference or presumption in favor of the homeowner is not raised, the opposition can be prevented from introducing any evidence of ownership of the debt because they failed to answer discovery, failed to obey court orders requiring their answer and then were in contempt of court. Judges are very willing to impose sanctions on pleading and even sanctions preventing the claimant form introducing evidence intended to support the claim.
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So my approach is far from theoretical. It is practical and understandable if you understand the rules of civil procedure.

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PRACTICE NOTE: For any of this to work, you must do the work. File discovery, file motion to compel, file motion for sanctions and file motion in limine. In a case that is entirely about the debt most judges (not all) will have no problem with requiring answers to discovery directed at information about the debt.
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The confusion in the courts and in people’s minds occurs when they assume that the proceedings are actually a foreclosure simply because the claimant says so. It is not a foreclosure unless the action is for restitution of an unpaid debt. I use the word restitution because foreclosure is an action in a court of equity.
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And there are thousands of cases finding ways to bend the law in favor of claimants who say they are foreclosing because they are focusing on (a) the documents which are mostly fabricated and (b) more importantly, an assumption that is unfounded and untrue. The biggest problem is the belief of attorneys and their clients that the action is actually a foreclosure. It isn’t.
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So you get cases that say that even if things are “irregular”, they will affirm the decision because in the end end there is no real foul and no real harm. It is the burden of the homeowner to disabuse them  of this notion at least in part and make them face the fact that there is no evidence to support any claim on behalf of the claimant or any party that is mysteriously represented by the claimant.
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You will always get this result when you focus on the documents instead of the facts. The underlying assumption in all of these cases is that the case is a foreclosure — which means that it is an action for restitution of an unpaid debt. If that is true then the court is justified in bending rules in favor of the claimant because ultimately the proceeds of the foreclosure sale will go to pay off the debt.
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That is why it is essential that the homeowner attack the ownership of the debt. Because if the claimant doesn’t own it then the action is not for restitution of an unpaid debt. A debt is not owned without paying for it. But despite law to the contrary, the courts make an additional presumption that even if the claimant is not “technically” entitled to foreclose, the money from the forced sale of the property will still go to some party or parties that have  paid value for the debt and are injured by nonpayment. This assumption is without any foundation of facts and is in fact erroneous.
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The money is going into the pocket of those players involved in the “foreclosure” and they receive it as revenue. However the revenue part of the scheme while implied should probably not be part of the defense narrative because it sounds like conspiracy theory and lacks “credibility” even though it is true.

Investors Were Not Injured By Non Payment from Homeowners. They Were Injured by Non Payment from Investment Banks

The trap door is thinking that investors were hurt by borrowers failing to make payments when in fact they were injured by brokerage companies not paying them regardless of how much money was being received and created. This trap door inevitably leads one into thinking that the money proceeds from a forced sale of property in foreclosure are being paid to investors. That is just not true.

=====================================

GET FREE HELP: Just click here and submit  the confidential, free, no obligation, private REGISTRATION FORM. The key to victory lies in understanding your own case.
Let us help you plan for trial and draft your foreclosure defense strategy, discovery requests and defense narrative: 954-451-1230. Ask for a Consult or check us out on www.lendinglies.com. Order a PDR BASIC to have us review and comment on your notice of TILA Rescission or similar document.
I provide advice and consultation to many people and lawyers so they can spot the key required elements of a scam — in and out of court. If you have a deal you want skimmed for red flags order the Consult and fill out the REGISTRATION FORM.
PLEASE FILL OUT AND SUBMIT OUR FREE REGISTRATION FORM 
Get a Consult and TERA (Title & Encumbrances Analysis and & Report) 954-451-1230. The TERA replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
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Exchange between me and fairly knowledgeable client:

Client: “But if investors put up the money then they would be the injured party if borrowers don’t pay, or at least if things were normal.”

From me:

Incorrect. Investors were injured by  the failure of brokerage firms to make payments to them that were purely optional. Investors were not injured by failure of borrowers to pay their mortgage payments as defined in the promissory note.

At the option of the investment bank, the investors who paid value for the certificates issued by the investment bank, continue to receive payments. Those payments come from a reserve pool of money funded entirely by the investors initial purchase of certificates (but they are labeled “Servicer advances”).

You are falling through the trap door that the banks and their lawyers have created. Investors did not put up money to purchase your loan or acquire it or originate your loan. They had no legal part in that unless a judge were to enter an order stating that while the form of the transaction says they had nothing to do with your loan, the investors were nonetheless substantively the “lenders.” The banks and the investors would argue against that since it would make investors liable for lending and servicing violations.

You are presuming something that the banks want you to presume. The truth is that the investors were told that they would be paid by the brokerage firm that set up the plan of what they called “securitization.”

The promise received by investors was from the brokerage firm not the borrower. The money on deposit with the brokerage firm was used to originate or acquire loans as a cost of doing business, to wit: the business of issuing and trading in derivative securities to which neither the investors nor “borrowers” were parties and therefore received no compensation despite the fact that without them none of those trades could have taken place.

The promise (certificate or mortgage bond) was issued in the name of a “trust” that at best was inchoate” under law (i.e., “sleeping”). The trust name was merely a business name under which the brokerage firm was doing business. The promise was not secured by any interest in the debt, note or mortgage on any loan. In fact, at the time of investment there were no loans in any portfolio that were the subject of the investment. There was a promise to aggregate such a portfolio and the list of loans attached to the prospectus is subject to the disclaimer that it is not the real list but rather an example of the kind of data the investors will see when the offering of certificates is complete.

The certificates themselves do not convey and right, title or interest to the debt, note or mortgage on any loan. The investors merely hold an unsecured promise to pay where the promissor is the brokerage firm (Investment bank) and the amount of payments to be received by investors are indexed on the data for an aggregate of loans; but such payments are entirely dependent upon the sole discretion of the investment bank (Brokerage firm) and the performance of the index — i.e., the performance of borrowers.

Investors thus receive money as long as the investment bank wants them to receive money regardless of actual performance of loans. The non performance of borrowers represents an excuse for the investment bank to stop paying the entire amount of their promise, if the managers of the investment bank so choose.

But since the investment bank (brokerage firm) was using money deposited on account the net result is that the investors paid value for the origination or acquisition of the debt but never got to own it under current law.

And the investment bank briefly became the “owner” of the debt without having actually paid for it, and then created a “sale” at its trading desk in which the loans were “sold” to the “trust” at an enormous premium (second tier yield spread premium) from the amount that was actually loaned to borrowers at much higher interest rates than the amount demanded by the investors. 

Bottom Line: Under current law in all jurisdictions nobody qualifies as the owner of the debt by reason of having paid for it because those two functions were split by the investment bank.

The value was paid by investors who did not receive ownership of the debt. The ownership of the debt as in the hands of the brokerage firm that started the securitization scheme and then transferred to itself using the name of the fictional trust. Hence the brokerage firm, directly or indirectly continued to “own” the debt without having actually paid for it. This is legally impossible under current law.

Under current law, nobody can claim to own or enforce a debt without having paid value for it. A transfer of rights to a mortgage is a legal nullity unless there is a concurrent payment of value for the debt. The only possible claimant in a court of equity is the investment bank, but they continue to hide behind multiple layers of sham conduits who actually have no contractual or other relationship with the investment bank. All such “securitized” loans are therefore orphans under current law where the debt, note and mortgage cannot be legally enforced.

The only way they have been enforced has the acceptance by the courts of erroneous presumptions that effectively reconstitute the debt, note and mortgage out of the prior transactions that split it all up. This produced the opportunity for profits that were far in excess of the loan itself which was viewed by the investment bank as simply a cost of doing business rather than an actual loan. Besides violating current law under the Uniform Commercial Code it also violates public policy as explicitly enunciated under the Federal Truth in Lending Act and public policy stated in various state laws prohibiting deceptive lending and servicing practices.

Those excessive profits should, in my opinion, be the subject of reallocation that includes the investors and borrowers without whom those profits could not exist. These are the actions for disgorgement and recoupment to which I have referred elsewhere on this blog. But in order to have real teeth I believe it is necessary to join the investment banks who had a role in the claimed “securitization.”

In affirmative defenses you can name a third party but you must express the defense as something for which the actual named claimant is vicariously accountable. Otherwise you need to file a counterclaim, the downside of which is that many such claims are barred by the statute of limitations whereas affirmative defenses are not usually subject to the statute of limitations.

The reason you can’t get a straight answer to discovery is that ownership and payment have been split between two entirely different parties. Yet current law demands that the enforcing party be (a) the owner of the debt, note and mortgage and (b) the party who paid value for the loan. In most situations involving claims of securitization that requirement cannot and is not meant to be fulfilled.

Clearly  changes in the law are required to allow for securitizations as practiced. But in order to do that the laws regarding disclosures to investors and borrowers must get far more specific and rigorous so that freer market forces can apply. With transparency market corrections for excessive or even unconscionable transactions are possible — allowing both borrowers and investors to bargain for a share of the bounty created by securitization arising from the investment of investors and borrowers.

Current law supports disgorgement of such profits because they were not disclosed. But current law fails to identify such “trading profits” as arising from the the actual transaction with investors, on one hand, and the borrowers on the other hand. This might be accomplished in the courts.

But a far better alternative is to level the playing field with clearly worded statutes that prevent what had been merely intermediaries from draining of money and other value from the only two real parties in interest as defined by both the single transaction doctrine and the step transaction doctrine.

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