For those exiting “Forbearance” or Moratoriums — Be Careful What You Write!

After a few extensions, the mortgage payment pause officially ended — or will be ending soon — for 1.2 million out of an estimated 1.7 million loans that remained in forbearance as of August, according to CoreLogic.

Wall Street is busy churning out even more disinformation than before because they are trying to avoid a mass revolution from consumers. The latest message is that some homeowners are struggling but “market conditions” will prevent a new tidal wave of foreclosures. The object is clearly to distract anyone in government from paying attention to this monster.

see https://www.bankrate.com/mortgages/cares-act-forbearance-runs-out/

So they’re using this opportunity to (a) pretend there is no crisis and (b) engulf consumers in another round of deceit.

Wall Street wants you to “stay in touch with your lenders” because they want you to communicate with companies who are pretending to be lenders or servicers. They are neither lenders nor servicers. They’re not “Servicers” if “servicer” means a company that receives or disburses proceeds of scheduled payments. And they are not lenders if “lender” means someone who paid money to originate or acquire ownership of your underlying obligation.

Nearly every consumer transaction that offers a payment schedule is actually concealed securities scheme, Which means that for the apparent “lender” there is no loan. there is only payment to or on behalf of the consumer to inspire them to “sign” documents that launch or help launch a securities scheme that enables the participants in that scheme to get paid many times that amount of what the consumer is deceived into believing is a simple loan.

The bottom line of all that is there is nobody who maintains the “ledger” that is in the mind of the consumer. There is no loan account. There is no company that reduced its cash account and added it to its receivable account.

So maybe securitization is a true innovation. But as it stands it is illegal and unenforceable. If you were pursuing the same companies for payment you can bet that they would do what I am suggesting — refuse payment unless you could document proof of payment and the present existence of a loan or other debt.

That documentation must be from the records of the party named as the claimant — not from some company claiming to be a servicer. If the designated named claimant is not a creditor to whom the debt is actually owed then the self-serving unsigned claims of servicing authority are empty statements designed to deceive consumers, homeowners, and students to make payments that are being converted from debt to profit.

Every effort to bring pressure on a consumer to pay it is basically Suing For Profit. Even if the consumer pays, it won’t reduce any loan account because no such account exists — except the illusion of the account on the books of the “servicer” who is not serving anyone other than the investment banks on Wall Street and who handles no money.

So here are the general rules of all consumer transactions that end up with some scheduled payment:

  • Do not address the company claiming servicing rights as the servicer. Instead, challenge who they are and what they’re doing. You never made a deal with that company. Send a Debt Validation Letter and in the case of a mortgage, a Qualified Written Request. If you do admit they are a servicer you are reinforcing the illusion of a receivable account maintained by that company on behalf of some other entity who never actually shows up on anything. No officer or director of any REMIC trustee or other designated named creditor ever signs anything. The creditor is merely there as a hood ornament.
  • Do not admit you owe any money to the servicer or anyone else. You don’t know what happened to that account so stop pretending that you do know.
  • Do not admit you are delinquent or in default or that either the lawyer or servicer can declare you find default. Note that you will never receive a direct statement from the named designated creditor saying you are in default. They have simply rented out their name to maintain the illusion that the creditor is a financial isntiutiotion. It isn’t.
  • Do not concede that the payment history is accurate or is a legal or acceptable substitute for an account receivable on the books of a creditor. It isn’t.
  • But DO realize that every time you make life difficult for this vast game of suing for profit, you are helping not only yourself but millions of other consumers.
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Nobody paid me to write this. I am self-funded, supported only by donations. My mission is to stop foreclosures and other collection efforts against homeowners and consumers without proof of loss. If you want to support this effort please click on this link and donate as much as you feel you can afford.
Please Donate to Support Neil Garfield’s Efforts to Stop Foreclosure Fraud.

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Neil F Garfield, MBA, JD, 74, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
  • But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.
  • Yes you DO need a lawyer.
  • If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.
Please visit www.lendinglies.com for more information.

 

EARLY BIRD DISCOUNT ON WEBINAR ENDS 9/22/21

APPROVED FOR 2.5 CLE CREDITS APPROVED BY THE FLORIDA BAR

HOMEOWNER ATTENDANCE PERMITTED

Live and On-Demand Available

EARLY BIRD DISCOUNT ENDS 9/22/21

  • What to Look for in Examining an Assignment

  • How to Successfully Litigate the Issues

  • How lawyers can make money in this niche

APON and GTC Honors, Inc. an approved host provider for CLE (for lawyers) credits in Florida and 26 other states that allow reciprocal credits for licensed attorneys announce that they are producing a seminar presented by Neil F Garfield, MBA, JD , trial lawyer for nearly 45 years and investment banker for 50 years.

Only lawyers will be able to ask questions. It will be followed up with a conference call 2 weeks after the presentation. The presentation will be live on 9/29/21 at 3 PM EDT or on-demand.

Included in the curriculum will be business plan tips for lawyers entering what will be an exciting opportunity to win cases and profit. 

Examination and Challenge

of Assignments of Mortgage

WEDNESDAY, SEPTEMBER 29, 2021

3PM EDT

2.5 CLE CREDITS

Click here to register

for Live Attendance or

On-Demand After Live Presentation is Completed

Curriculum:

  • The Coming Challenge to Lawyers: Another Foreclosure Tidal Wave
  • The Ethics of Foreclosure Defense and Foreclosure Advice.
  • Why Make the Challenge?
  • How to Examine the Assignment of Assets Like Mortgage Liens.
  • How to prevent evidence from coming in
  • How to get admitted evidence out
  • How to undermine the admitted evidence 
  • What to Look for in Examining an Assignment:
    • Timing
    • Complete names
    • Verified names
    • Direct signatures
    • Indirect/derivative signatures
    • Robosigning
    • Dates
    • MERS
    • Recital of consideration
    • Identified subject (asset) of transfer
    • Warranty of title to asset
    • Notices from creditor
    • Derivative notices from creditor
    • Notices from “servicer”
  • How to Successfully Litigate the Issues:
    • Admissions Against Interests
    • Motion to Dismiss
    • Discovery and Definitions
    • Motion for Summary Judgment
    • BUSINESS RECORD EXCEPTION TO HEARSAY RULE
    • Motion to Compel Discovery
    • Motion for Sanctions
    • Motion in Limine
    • Objections at Trial and Cross-examination
  • How lawyers can make money in this niche
  • Q&A for lawyers only
  • Follow up conference call 2 weeks later 

Virtually all foreclosures today are based on written recorded instruments purporting to transfer title to the mortgage lien from one legal person to another.

The questions for today are different from the questions that were present when the forms, rules and procedures were developed before present claims of securitization of debt.

Neil F Garfield, a Florida attorney and investment banker, presents the results of 16 years of research, analysis, trial appearances, expert witness presentations, and CLE presentations. In this modified course presentation, he focuses on the duties of lawyers who use or oppose assignments of mortgage, and the methods that can be used to perform expert analysis.

  • Sponsor: APON
  • Host/Provider: GTC Honors, Inc.
  • Course Number 2106918N
  • Provider # 1030277
  • 2.5 Credits for Continuing Legal Education
  • Level: Intermediate
  • Approval Period: 09/22/2021 – 03/31/2023
  • Presenter: Neil F Garfield
  • Florida Bar Number 229318

GTC Honors, Inc. the Florida approved course provider, is a Florida Corporation, Publisher of the Livinglies.me blog and thousands of articles, treatises and guides to successfully defend foreclosure cases in the era of self-serving declarations about the securitization of debt.

CLICK HERE TO REGISTER FOR APON SPONSORED WEBINAR: Assignments of Mortgage!

Attack the “Successors”

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

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

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

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

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

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

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

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

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

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

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

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

Click

Neil F Garfield, MBA, JD, 73, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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CLICK HERE ORDER ADMINISTRATIVE STRATEGY, ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
*
CLICK HERE TO ORDER TERA – not necessary if you order PDR PREMIUM.
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CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR) (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
  • But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.
  • Yes you DO need a lawyer.
  • If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.
Please visit www.lendinglies.com for more information.

WHAT IS A SERVICER ADVANCE? According to Ocwen it has zero credit risk and is not really an advance

One place where securitization players and foreclosure players don’t lie is in reports that are formally filed with the SEC. So in my research, I found a document in which Ocwen describes itself and which is subject to judicial notice because it is a government document downloaded from the Sec.gov website. The filing of 8k and other reports required by securities laws and regulations is an official act. It is a sworn representation by the issuer (Ocwen here) that the facts being presented are accurate and true on penalty of going to jail. Here we see a filing that identifies the people who would go to jail if the facts were not at least arguably accurate.

THIS IS ALSO A MENU OF INDIVIDUALS WHO COULD BE SUED INDIVIDUALLY FOR PARTICIPATING IN FRAUDULENT, NEGLIGENT ENTERPRISES AND WRONGFUL FORECLOSURES. 

======

NOTE ON JUDICIAL NOTICE AND SEC.GOV

Note my words here. In most court cases, the documents used by foreclosure mills are merely self-serving documents laundered through the SEC website. If you have the credentials you can upload anything including but not limited to porn.

So for court purposes only they upload as much as they can to the SEC.gov website — and then download it with “sec.gov” in the heading. Then they produce it as a governent document (which it isn’t) and ask for judicial notice. Without opposition, the judge grants the motion for judicial notice and that practically means the case is over.

Most pro se litigants don’t know what judiclal notice is and most lawyers and homeowners take it for granted that they can’t oppose judical notice for a government document. they forget to inquire whether that IS a government document and in virtually ALL cases, it is not a govenrment document — and therefore (1) it is not subject to judicial notice and (2) the attempt to use it as such is subject to a motion for contempt and sanctions — if you file the motion. This is another example of how the banks are using pure fabrications and weaponizing civil procedure to support their thieving scheme.

see https://shareholders.ocwen.com/static-files/24390846-8787-4a36-9c30-53b5b5f0a0e5

OCWEN 8K 0001193125-13-015500

Note that this is a “Lender’s Presentation.” That means it is a presentation to prospective lenders. Any lies would be subject to criminal prosecution not only for violations of securities laws but also for bank fraud.

Take a look at this from Ocwen’s 8k report to the SEC in 2013: Note how the filing is devoid of any representation that Ocwen is a lender, successor lender, or attorney in fact for anyone.

Note how Ocwen is basically always teetering close to bankruptcy because it has very few assets and maintains a business plan that is always based entirely on income from “servicing.”

Note how on page 20 they represent Ocwen, BOA servicing, Chase servicing, Saxon Servicing, Litton Servicing, and HomeEq Servicing to all be the same thing. Since 2013 you can add PHH, REZ, and other entities or names that were used ficitiously.

THEN ON PAGE 36 THEY ANSWER THE QUESTION: WHAT IS A SERVICER ADVANCE?

  1. Note that they use the word “advance” in quotes, just like I did here. That is because if they said it was an advance they would be lying. There is no advance. This is a cover-up for the fact that there is no loss to anyone when scheduled payments are not paid by homeowners. So there is no need for any advance, much less by a “servicer”. No company would accept responsibility for making such advances. Imagine if your bookkeeper said “That’s ok, if they don’t pay you, I will.” Imagine the fees that would need to be paid for any company to incur such liability. Imagine insurance and reserve deposits required. None of those things exist.
  2. So the advance does not come from Ocwen’s balance sheet and it actually does not exist. This is cover for the Master servicer putting in a claim for nonexistent advances. All payments to creditors of the securities brokerage firm (i.e., investors who purchased uncertificated certificates) are made from a huge such fund that is referred to in other documents as a reserve pool which consists of (1) proceeds from the sale of the certificates (2) money deposited with permission of the stockbroker who started this scheme including money received from homeowners and (c) proceeds of sales from other similar schemes. It is all commingled and obviously, this has nothing to do with any homeowner (aka “borrower”).
  3. Next, they say that “servicers incur funding costs on these non-interest bearing advances but do not bear credit risk.” Translation: there is no advance.  But we claim funding costs in order to get paid for pretending that servicer advances are real thus justifying fees for nonexistent services.
  4. Next, they say that “Advances are recoverable at the ‘top of the waterfall’ first from proceeds at a loan level, and then if those funds are insufficient, from cash collected from other loans in an RMBS trust.” Translation: Advances are recoverable but not by Ocwen. It never sees that “recovery.” The money is taken first from “a loan level.” which means it could be any loan. That is reinforced by the remaining words which refer to other loans in any RMBS trust. And that is why I say that there is no loss to anyone in any individual loan. It’s impossible. As long as there is money anywhere from investors, homeowners, or insurance for the certificates, everyone gets paid. So far there has always been money available not only to make all payments to everyone but also to for exceedingly high profits like what we saw with Goldman Sachs in 2009 when they forced the AIG bailout not to cover losses, but rather to cover additional profits.
  5. And lastly, they make the silly statement that “A servicer” can ‘stop advance’ if it believes that an advance will not be recoverable from the borrower.” This is silly because first of all there are no advances except from other people’s money with which Ocwen has no control. Second, because recovery from a borrower is irrelevant as described above. This statement is made solely as part of the coordinated illusion created by the stockbroker (aka investment bank) that started the scheme. It is made to reinforce the false representation that there are any loans, that there is any loan receivable account on the ledgers of anyone, and that therefore those accounts need servicing.
P.S. Note the very beginning where is says: “On January 17, 2013, Ocwen Financial Corporation (“Ocwen”) is making a presentation at a meeting among potential lenders for the proposed Senior Secured Term Loan facility. Barclays, Citigroup Global Markets Inc. and J.P. Morgan Securities LLC are acting as Joint Lead Arrangers and Joint Bookrunning Managers for the facility. Barclays Bank PLC is acting as Sole Syndication Agent and Administrative Agent for the facility. A copy of Ocwen’s slide presentation for such conference is attached as Exhibit 99.1 hereto. Such slide presentation shall not be deemed to be “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, nor shall it be deemed incorporated by reference in any filing under the Securities Act of 1933, except as shall be expressly set forth by specific reference in such filing.” This means they are trying to say, unsuccessfully that even though they’re filing it with the SEC it shouldn’t count against them if they’re lying. 
DID YOU LIKE THIS ARTICLE?

Nobody paid me to write this. I am self-funded, supported only by donations. My mission is to stop foreclosures and other collection efforts against homeowners and consumers without proof of loss. If you want to support this effort please click on this link and donate as much as you feel you can afford.

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

Click

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Neil F Garfield, MBA, JD, 73, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us. In  the meanwhile you can order any of the following:
CLICK HERE ORDER ADMINISTRATIVE STRATEGY, ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
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CLICK HERE TO ORDER TERA – not necessary if you order PDR PREMIUM.
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CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
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CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR) (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
  • But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.
  • Yes you DO need a lawyer.
  • If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.
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Please visit www.lendinglies.com for more information.

 

 

 

 

 

Servicers relent one case at a time: The Great Escrow Balance Game. Getting money just because you asked for it.

Playing with the escrow balance and asking for more money is one of many games the “servicers” play in the Great Securitization game. Relentlessness in challenging (1) the authority of the company pretending to be a servicer and (2) their rendition of the escrow balance and reconciliation of their request for more money is how you eliminate the fake shortgage and get a refund. Don’t assume it is a honest mistake. Assume instead that they are trying to steal from you because in most cases that is what they are doing.

The truth is that without having authority to act they have no right to administer, collect or enforce any payment from homeowners under any circumstances, let alone escrow money. And if there is no creditor that they can identify that maintains on their accounting ledgers, an entry establishing the  existence of a loan account receivable, then there is nobody to authorize them.

This is not some plot by 30 million homeowners. It is a defective scheme in which Wall Street banks made trillions of dollars. Don’t blame or penalize the homeowner. Blame and penalize the banks.

Here is one such example: After a homeowner steadfastly refused to accept the demand for more escrow money, this is what they received:

SLS promptly re-ran its escrow analysis upon receipt of your below email in late December 2020. As a result, an updated escrow analysis is attached to replace the previous one with a new payment beginning February 1, 2021 in the amount of $ 1,502.07. This change reflects a credit that was issued in the amount of $2,773.82. Accordingly, escrow shortage of $2,032.29 from the December 2020 statement has been removed and the remaining $741.53 has been issued to you directly as a refund. You should be receiving those funds by check delivered by UPS in the coming days. This new escrow analysis will be timely filed with the Bankruptcy Court. Sincerely, Melissa Licker
Of course, no explanation was offered as to how they got it so wrong.
DID YOU LIKE THIS ARTICLE?

Nobody paid me to write this. I am self-funded, supported only by donations. My mission is to stop foreclosures and other collection efforts against homeowners and consumers without proof of loss. If you want to support this effort please click on this link and donate as much as you feel you can afford.

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

Click

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

FREE REVIEW: Don’t wait, Act NOW!

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

 

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

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

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

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

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

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

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In most of the small percentage of cases where homeowners contest the Foreclosure both they and their attorneys are seeking only delays in what they think is an inevitable result. So no real effort is made to reveal the fact that the attorneys in the Foreclosure Mill have absolutely no concrete evidence to support the claim they are advocating on behalf of entities that probably don’t exist. And in most of those cases, the homeowner admits that the “loan” exists, that the obligation exists, that the obligation is owed to the claimant, etc. In doing that, the homeowner falls into a trap. Once all of those facts are admitted by the homeowner, the defense becomes “yes, but” which rarely works.
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It is only where homeowners are unrelenting in their contest of the f foreclosure and where they follow the rules on discovery, motions enforcing discovery, objections, and cross-examination that the homeowner wins. They win because there is no legal claim against them. But they will lose every time if they fail to establish the inability or unwillingness of the foreclosure mill to come up with concrete evidence that there is, in fact, a loan receivable entry on the accounting ledgers of the claimant and that it got there by virtue of a real-world transaction in which value was paid for the underlying obligation.
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You might not like that answer but it is perfectly correct and true. Your only chance of winning these cases is by excepting the fact that the rules apply and that the judge is bound to follow them. You can use the rules against your opposition and reveal the fact that there is no concrete evidence for the basic elements of their claim. But if you fail to do that, the rules favor party that makes the claim. That is not just true in foreclosures, it is true in all civil cases.
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If you want an analogy, think about a murder case. Everyone knows that it is against the law to kill somebody. And yet the murderer will go completely free without any damage to his reputation Or without any damage to his record and without any loss of freedom — unless someone catches him, charges him, shows probable cause, gets a conviction, and wins on appeal.
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Homeowners must realize that is the essence of their defense is closely related to criminal fraud. That is never going to be presumed to be true at the beginning of the case. In our system, or people who are accused of such illegal behavior are presumed innocent even if they have exhibited a pattern of illegal behavior in the past. It is an age-old problem That in individual cases people are offended that such offenders go free. We could debate the philosophy behind those rules but we cannot debate the fact that those rules exist.
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It is unfair that homeowners must master the rules of court in order to defend themselves against frivolous claims. While they are allowed to represent themselves in court they have no idea how to do that. They walk into court believing that being right is enough. It isn’t enough and it never is. So they will most often lose cases that a good trial lawyer would win. Or they delay hiring a lawyer until it is too late for the lawyer to do anything constructive under the rules.
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Nobody paid me to write this. I am self-funded, supported only by donations. My mission is to stop foreclosures and other collection efforts against homeowners and consumers without proof of loss. If you want to support this effort please click on this link and donate as much as you feel you can afford.

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Neil F Garfield, MBA, JD, 73, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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CLICK HERE ORDER ADMINISTRATIVE STRATEGY, ANALYSIS, AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
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CLICK HERE TO ORDER TERA – not necessary if you order PDR PREMIUM.
*
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CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR) (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
  • But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.
  • Yes you DO need a lawyer.
  • If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.
Please visit www.lendinglies.com for more information.

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

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

ApplicationForLoanProcessAndFundingOfServiceFees

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Nobody paid me to write it. I am self-funded, supported only by donations. My mission is to stop foreclosures and other collection efforts against homeowners and consumers without proof of loss. If you want to support this effort please click on this link and donate as much as you fee you can afford.

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

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

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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
  • But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.
  • Yes you DO need a lawyer.
  • If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.
*
Please visit www.lendinglies.com for more information.

DO WE REALLY WANT TO LOSE CREDITORS IN CONSUMER TRANSACTIONS?

ALL EXISTING LAW AGREES WITH MY MAIN POINT: There is no basis for claiming you are a creditor unless you own the debt or represent someone who owns the debt. Since 2000 and maybe before that we have abandoned real creditors and steadily transformed administration, collection, and enforcement of alleged debts to include virtual creditors who neither own the debt nor receive the proceeds of collection. And there is no basis for claiming you are a servicer if you (a) maintain no custodial accounts and (b) you are not paying the money you collect to a creditor.

I HAVE WON NEARLY ALL CASES ON THE BASIS OF CHALLENGING THE EXISTENCE, OWNERSHIP, AND ENFORCEMENT OF THE ALLEGED DEBT. It’s a matter of court record.

AND YET — CFPB, FTC, AND SEC, ALONG WITH STATE AND FEDERAL COURTS, HAVE ALLOWED FOR THE “INSITUTIONALIZATION” OF VIRTUAL CREDITORS INSTEAD OF REAL ONES. Complaints to CFPB based upon challenges to the existence, ownership, and right to enforce the alleged debt result in gibberish answered from companies who have no knowledge and say nothing about the identity of the alleged creditor or the date of the transaction where value was paid one exchange for a conveyance of ownership of the alleged underlying obligation as required by Article 9§203 of the UCC adopted in all 50 states.

THE RESULT IS THAT ADMINISTRATION, COLLECTION, AND ENFORCEMENT OF THE ALLEGED DEBT RESULTS IN BONUSES, COMMISSIONS, AND OTHER COMPENSATION INSTEAD OF PAYING DOWN (REDUCING) THE PRESUMED LOAN ACCOUNT RECEIVABLE ON THE ACCOUNTING LEDGERS OF SOME COMPANY OR PERSON. Is this what we really want? Do we really want to ignore laws established over centuries?

BOTTOM LINE: THE BASICS OF ALL LENDING TRANSACTIONS HAVE BEEN CHANGED BEYOND RECOGNITION:

  • There is no lending anymore.
  • There are consumers who wish to be borrowers but there is nobody who wants to be a lender.
  • There are inducements to issue a note, a mortgage or a security instrument in an auto loan — even though no loan account is ever established.
  • Money paid to consumers is ephemeral — like a magic trick. The money paid to consumers is the inducement to sign the papers. But the virtual or pretender lender wants that money back.
  • The consumer thinks he/she is buying a loan product but the “lender” is neither lending nor does it have any lending intent. The “lender” neither funds the loan nor does it have any risk of loss.
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Neil F Garfield, MBA, JD, 73, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
*

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

FREE REVIEW: Don’t wait, Act NOW!

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

 

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

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

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

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

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

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

FREE REVIEW: Don’t wait, Act NOW!

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

Sometimes the client figures it out better than the lawyer

The problem has always been how to present this counterintuitive reality to a judge who is convinced that securitization of a loan DID occur even though the transaction was not in fact a loan and no sale occurred.

After decades of litigating and teaching litigation, the one common theme throughout my career has been the knowledge that often your best ideas come from the client, who is unencumbered by thoughts of what can’t be done.

One such client of mine in the state of Hawaii asked a simple question. She asked whether the homeowner, post-foreclosure, could ask for surplus funds. Surplus funds are defined by statute to mean that once the debt is paid including all expenses of enforcement, the remainder of the proceeds of a forced sale of the property should be returned to the homeowner. This is basic law applied in all jurisdictions. The “lender” does not get a bonus — at least not legally.

So that sparked some thought and analysis. If the claim was based on a nonexistent loss, then the entire proceeds of the sale should be turned over to the homeowner. In addition,  the filing of a motion or petition for accounting for the money proceeds from the sale could reveal the nonexistence of the implied loss and the nonexistent claim. That, in turn, could lead to a claim for sanctions or damages for filing a frivolous lawsuit. And that might all be included in a petition for declaratory, injunctive, and supplemental relief in which the court is asked to declare fee title, unencumbered, vested in the homeowner.

In any event, procedurally, the demand for an accounting followed by a motion to enforce the demand seems appropriate and should send the foreclosure mill spiraling. You see, the money never goes to the named claimant where the alleged claim was based upon securitization of the debt — because the loan, debt, note, and mortgage were never securitized. (Securitization means breaking up an asset into component parts that are sold to investors in pro-rata shares. Such sales never occurred. Securities were sold but they did not represent an ownership interest in any asset.)

The problem has always been how to present this counterintuitive reality to a judge who is convinced that securitization of a loan DID occur even though the transaction was not in fact a loan and no sale occurred.

The answer might be, in addition to the defensive strategies suggested on these pages, that instead of an appeal you file a motion to compel an accounting and a motion to open limited discovery on the accounting. The motion is actually a motion to compel the return of surplus cash generated from the sale of the property. Of course, that might need to wait until the sale to a third party but there are good arguments for filing it when the credit bid is offered by the named claimant.

Thus far, the banks have been selling property and then depositing the cash into an account controlled by a concealed investment bank notwithstanding the naming of the sham conduit claimant in whose name the foreclosure process was started. Frequent sleight of hand name changes occurs post-judgment or even post-sale.

It is difficult to imagine any court denying the request for the return of excess funds. Obviously, the argument from the foreclosure mill would be something like this: “The loss has already been established as the law of the case and the sale price was less than the loss, so there is no surplus.” But that argument flies in the face of current judicial doctrine which holds that even in a default situation you must still prove the damages.

And once the court is convinced you to have a right to see what happened to the money, it is difficult to imagine that the court would not order the foreclosure mill to produce the accounting. Like a request for identification of the creditor and the loan account receivable, such orders will be ignored because they must be ignored — even at the expense of sanctions. And the reason is quite obvious after reviewing thousands of cases — there is no loan account, there is no loss and there is no creditor despite all appearances to the contrary.

So if they file a false accounting they are probably committing or suborning perjury. And I don’t think many people are willing to sign such documents for any amount of money unless they don’t value their freedom.

The interesting thing about procedural rules is that the judge is more than happy to apply them if they can get rid of the case. In this case, a motion for sanctions for failure to comply with the homeowner’s request and the judge’s order will most likely produce either a direct win for the homeowner or a very satisfactory settlement — albeit with someone who had no right to settle with you.

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

FREE REVIEW: Don’t wait, Act NOW!

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

After Complaints to AG and CFPB Follow UP!

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

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

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

 

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

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

It is possible that the entire Wall Street strategy has been based upon the gamble that nobody other than accountants understands double-entry bookkeeping — the only bookkeeping system legally recognized as the starting point of any claim of ownership or transaction about anything.

 *

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

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

FREE REVIEW: Don’t wait, Act NOW!

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

FREE REVIEW: Don’t wait, Act NOW!

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

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

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

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

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

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

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

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

****
If it was a loan, then there would be a lender with a risk of loss and who was accountable for compliance with lending laws — particularly those requiring disclosure of compensation and revenue arising from the execution of the documents.
*
If it was a loan, then there would be a lender who was a stakeholder — i.e., someone who retained risk of loss and intent for the transaction to be performed and successful.
*
Instead, homeowners got no lender and not even a clue as to who they did business with nor the true extent of revenue and profits generated from what was in reality, simply a securities scheme with no substantive characteristics of a loan.
*
Instead, the homeowner was left with a nonlender who had no role in underwriting the viability of the loan contrary to the express requirements of TILA. In fact, and again contrary to the express requirements of TILA, the homeowner was left with nobody who had any stake in the viability or performance of any loan.
*
To add insult to injury, the securitization players had substantial financial incentives to steer borrowers into nonviable loans against which the players bet would fail — this producing even more profits.
**
So tell me again why this is a loan. And tell me why the compensation that the securitization players chose to give to the homeowner should not be retained by the homeowner. And while you are doing that, tell me why the consideration for drafting the homeowner into a concealed securitization scheme should not be expanded.
**
But don’t tell me you can foreclose and evict a homeowner just to get back the only consideration he/she ever received from you. That’s not capitalism. It is a fraud.
PRACTICE HINT: At the very start be confrontative. When opposing counsel says “Your Honor, this is a standard foreclosure,” you should interrupt and object saying that the face of the complaint or notice shows that this is not a standard foreclosure and it may not be a foreclosure at all if they can’t produce a creditor. Drill in the defense narrative wherever you can create the opportunity. 
Remember that you are not just looking for securitization language. You are also looking for securitization players. If the foreclosure is on behalf of Citi, PennyMac or BofA, those are securitization players. Just because they don’t refer to securitization does not mean that they are holding a ledger showing their payment for the debt and maintenance of a current asset account against which they are claiming a loss. If you don’t understand what that means, go talk to a CPA.
*
Neil F Garfield, MBA, JD, 73, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
*

FREE REVIEW: Don’t wait, Act NOW!

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

Document Review for Dummies: Why homeowners and their lawyers get confused by documents proffered by foreclosure mills

It occurs to me that most questions I receive contain either an inquiry about the meaning of documents or statements as if they know the meaning of documents. So here is a short primer on reviewing documents that might help.

WHAT (IF ANYTHING) IS THE TITLE OF THE DOCUMENT?

While this seems to be simply a matter of reading and common sense, there is more to it than that. If I draw a rough picture of a dollar bill and hand it to you, nobody will accept it as payment for anything even if the writing on it says “United States Currency” or “One Dollar.”

The reason for that is simply one short statement: No document is an event. And no label can change that. In the case of my artistic dollar, the event would have been a law that says anyone can draw a dollar bill and that everyone must accept it for all debts, public and private. No such preceding event has ever happened nor is it ever going to happen. People don’t issue currency.  Governments do that.

Labeling it as “one dollar” has no more meaning than angel wings in the snow. But while it is a lot less fun than angel wings, a really good fabricated picture of a dollar is likely to be accepted as if it was a real dollar bill. But passing the fake dollar is an illegal act subject to criminal and civil liability.

APPLICATION: Just because a document bears the label “deed,” “assignment” or “allonge” doesn’t make it so. But most homeowners, lawyers, judges and even regulators fail to recognize this basic common sense precept that has been enshrined in law since the law was first written. This error has even become doctrine, supported by legal presumptions if the face of the document confirms to what would ordinarily expect on the face of such a document.

EXAMPLE: An “assignment” is not an assignment of the mortgage unless (a) the grantor owns it and (b) the assignment also conveys ownership of the underlying debt (or the underlying debt was conveyed in a separate instrument by a grantor who owned the underlying debt). [NOTE: Even then the assignment might not be legally effective such as in the case where someone with toxic waste liability conveys the property to a dummy corporation to avoid being hit with damages, fines and penalties. The grantee must expressly or tacitly accept the assignment.] Ref: Article 9 §203 UCC.

WHY WAS THE DOCUMENT CREATED?

The answer to this question there’s actually another question, to wit: what was the event in real life that the document was intended to memorialize?

This reminds me of what my contract professor in law school pounded into our heads on a daily basis, to wit: The note is not the debt — although it may be evidence of a debt.

The debt exists only in the event of a real-world transaction that is enforceable by law. In the case of loans, that is created upon delivery to the closing table. The debtor is the one who accepted that money with eh understanding he/she had to pay it back and the creditor is the one who gave him/her the money. The debt exists regardless f whether there was my written document. It exists independently of any written document.

If the Payee named on the promissory note is the one who paid money to the debtor/maker), the note is admissible evidence in court to prove the terms of repayment and the existence of the debt. In fact, the law has developed that such a note merges with the debt such that the maker and debtor are the same and the Payee and creditor are the same.

BUT if the Payee named on the promissory note is NOT the one who paid money to the debtor/maker), the note is NOT admissible evidence in court to prove the terms of repayment or the existence of the debt. HOWEVER, under modern law, the execution of the promissory note gives rise to its own independent liability of the maker regardless of whether there was any debtor-creditor relationship between maker and payee. Ref: Article 3 UCC.

Such liability can be enforced over the objection of the maker (that here was no real-world transaction giving rise to the obligation) if the party enforcing the note was a bona fide purchaser for value, acting in good faith and without knowledge of the borrower’s defenses at the time the note was purchased.

APPLICATION: Generally speaking, if there is no real-world event memorialized by the document proffered by a party in litigation, the document is inadmissible as proof of the matter asserted — i.e., that the homeowner owes a debt to the party seeking to enforce it. If there is some real-world event (i.e., the homeowner received the money), then the question becomes whether there existed a legal binding relationship between the Payee on the note and the party who paid the money.

BUT, if the party who paid the money did so with no intent to acquire it or retain ownership of the debt, directly or indirectly, then the payment to the homeowner must be categorized as something other than a loan.

There might still be a liability of the homeowner, but only after the court is able to look at the transaction as a whole, and determine the reason for payment and whether that reason was satisfied by the homeowner’s conduct — which in the case of mortgage loans means the execution of documents that might not have any real value except to start the process of the sale of securities having no relation to the ownership of the debt, note or mortgage.

Such a review would also take into account whether the real terms of the contract were disclosed and whether the homeowner had an opportunity to decline participation or bargain for other terms.

EXAMPLE: As explained above an assignment of mortgage is a legal nullity in all States unless the grantee has also paid value in exchange for a conveyance of ownership of the underlying debt —from someone who owns it. Article 9 §203 UCC, adopted in all 50 states, takes it one step further requiring such purchase before anyone could even e considered as a bona fide claimant to enforce a security instrument (mortgage or deed of trust).

So the question is ALWAYS whether such payment of value for the underlying debt ever occurred as an event in the real world.

BUT, an assignment of mortgage that APPEARS to be facially valid is often taken at face value by the homeowner, the lawyers, the course, and the regulators even though the document is not facially valid. Sometimes this is the result of ignorance or laziness. And that brings us to the next point.

WHO SIGNED THE DOCUMENT? WHERE IS WALDO?

This can be really tricky and unless you are prepared to really look at the signature block like you might look at a painting where various figures and shapes appear, you will probably tacitly admit the entire case against you. You have to look long and hard. Think “Where’s Waldo?”

Take absolutely nothing for granted.

So in court, the correct answer is “I don’t know.” After 10-20 years the homeowner has no idea what he/she signed. He/she doesn’t know if the document presented is real or fabricated. He/she, therefore, doesn’t know if that signature on that document is real or fake. SO why admit it? Tell the truth. You don’t know. Make them prove that the document is authentic, valid, and was properly signed by the homeowner(s) at the time fo the original transaction (note that I don’t call it “loan closing” anymore because I don’t think the transaction is legally or logically a loan).

Next on that assignment of mortgage or beneficial rights under a deed of trust: can you tell me in easy English who signed that document and on whose behalf the document was supposedly executed? On close examination in most cases, you cannot. If that cannot be determined from the face of the document then the document is not facially valid. If the document is not facially valid no legal presumptions can arise about its authenticity or validity.

APPLICATION: In most cases, the validity of an assignment cannot be determined without reference to “parol” (external) evidence. Such instruments are facially invalid unless there is something in the public official record that clears up the mystery. Only official public records carry the legal presumption of authenticity and validity as proof of the matter asserted.

NOTE THAT EVEN DOCUMENTS THAT APPEAR TO PASS THE FACIAL VALIDITY SMELL TEST MIGHT STILL BE EXCLUDED AS PROOF OF THE MATTER ASSERTED IF TIMELY OBJECTION IN PROPER FORM IS RAISED AS TO THE CREDIBILITY OF THE SOURCE: Self-proclaimed servicers are preferred by foreclosure mills as thought hey are third parties with no stake in the outcome of the litigation. Good discovery and motion practice could reveal that the reverse is true — the claimed servicer is really a foreclosure vehicle acting for concealed third parties and who goes out of business if the foreclosures are unsuccessful.

EXAMPLE: “John Smith, Official Document Examiner, SOLVANG SERVICING, LLC, as attorney in fact for CSLOBS, INC., successor to Jasmine Bank, as attorney in fact, for AMERICAN BANK AND TRUST, AS SUCCESSOR FOR MAKE A WISH MUTUAL BANKING, ON BEHALF OF THE REGISTERED HOLDERS OF CSLOBS, INC. PASS-THROUGH CERTIFICATES Series 2006-ZX1.”

There are lots of it assumptions that you could make about such a signature block at the end of the document. None of them would be true. And none of them would make any sense. But it is custom and practice to ignore such signature block as though an authorized signature had occurred on behalf of a grantor who possessed something to grant.

QUESTIONS:

      1. Does John Smith exist? [If you were creating a false document who would want to sign it with their real name?]
      2. Was John Smith an authorized signatory for Solvang?
      3. Was John Smith an employee who knew something about the content of what he was signing or did he just sign it because his job consisted of stamping it writing his signature on thousands of documents per day?
      4. Was John Smith employed by some other company that doesn’t appear on this signature block?
      5. Who owns Solvang? {If the answer is some investment bank then documents executed or created by them suffer from a lack of credibility that could bar their admission into evidence.]
      6. Is the power of attorney attached to the document?
      7. Is there any descriptive language that would enable the reader to ascertain the existence, provisions, and validity of any power of attorney at the time of signing? If not my opinion is that the document is facially invalid. External proof is required to determine whether such power exists and was granted by someone who (a) intended to grant it and (b) had ownership or control over the subject matter (i.e., the mortgage or deed of trust).
      8. Where does Make  A Wish Mutual Bank fit into the chain?
      9. Who is CSLOBS, Inc.?
      10.  Where and what is the registry of holders of certificates? See power of attorney analysis)
      11. Who are the holders of the certificates? [Since they are defined as the parties on whose behalf the document as executed, the absence of an actual name by which they could be identified renders the document facially invalid.]
      12. Are the holders of the certificates the owners of pro-rata shares of debts, notes or mortgages? How do we know that? If not, why are they mentioned?
      13. What exactly passes through where and who is involved in that?
      14. IS THERE A HIDDEN TRUST NAME INVOLVED IN THIS CHAIN? IF SO WHAT I OWNED BY THE TRUSTEE OR THE TRUST? WHO IS THE TRUSTEE? WHAT ARE THE TRUSTEE POWERS? WHO ARE THE BENEFICIARIES? WHO WERE THE TRUSTORS OR SETTLORS?
*
Neil F Garfield, MBA, JD, 73, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
NOTE: I HAVE PREPARED A 2 HOUR PRESENTATION ON DOCUMENT ANALYSIS FOR A ZOOM PRESENTATION. I HAVE NOT YET SELECTED A DATE. THE PRICE IS $595 AND INCLUDES A FOLLOW UP ONE HOUR Q&A MEETING ONE WEEK AFTER THE PRESENTATION FOR THOSE WHO PARTICIPATE LIVE. NO DISCOUNTS ARE AVAILABLE. IT WILL PROBABLY BE THE FIRST WEEK OF DECEMBER. IF YOU ARE INTERESTED IN PARTICIPATING PLEASE WRITE TO ME AT NEILFGARFIELD@ICLOUD.COM. CLE ACCREDITATION FOR LAWYERS IS EXPECTED. 
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  • But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.
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Freddie Mac Changes Its Language from “Loan Portfolio” to “Reference Pool”

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

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

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

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

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

Without such a transaction there is nothing to report.

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

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

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

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

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

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

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

In fact, it reveals exactly the opposite.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

*
Neil F Garfield, MBA, JD, 73, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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  • But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.
  • Yes you DO need a lawyer.
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Here we go — the next tidal wave of foreclosures is upon us. When the moratoriums are over prepare for shock and awe (again)

see https://www.abcactionnews.com/news/local-news/i-team-investigates/floridas-foreclosure-rate-second-highest-in-the-u-s-filings-increase-as-courts-open

The Wall Street playbook calls for an insidious process of creeping up on you. Within days, in some cases, weeks in other cases and certainly within months, people are going to wake up to the fact that they are already in the middle of a foreclosure proceeding. And the new wave will be just as destructive as in 2008.

Contrary to the party line that has been successfully advanced by Wall Street banks, foreclosure proceedings are NOT the result of non-payment. They are the result of greed.

For non-payment to be a reason to seek redress in court, the claimant must be entitled to receive payment from the person they are suing, and they must be “injured” (financially) by the homeowner’s failure to pay. In al most all foreclosures, contrary to popular belief, these elements are completely absent and no, there isn’t anyone behind  some fictional curtain who is getting the money to satisfy and unpaid debt.

And yet here is what is about to happen:

  • 96% of all homeowners who are served with foreclosure notices will walk away from the biggest investment of their lives and losing a huge asset
  • 2% will attempt to litigate “on the cheap” looking or delay, modification or something other than simply winning against a law firm falsely representing it has a client who is proper claimant and falsely implying that if the foreclosure is successful the money will go to someone who needs it instead of just wanting it.
  • 2% will litigate in earnest and 65% of them will win their cases because there is no legitimate claimant or claim.
  • The courts will largely remain ignorant about the true nature of securitization — specifically that not a single residential loan has ever been securitized.
    • Building on that ignorance, the courts will erroneously accept direct or implied assertions of authority to administer, collect or enforce obligations by law firms who also lack any authority to collect or enforce.
    • Many lawyers will make the same mistake, believing that the self proclaimed “servicer” has been granted any right by any party who paid value for the underlying obligation in exchange for receiving a formal conveyance fo ownership of the debt, note or mortgage.
    • Discovery demands, even if properly framed and timed, will largely be ignored by everyone because of lawyers and pro se litigants’ lack fo understanding of motion practice.
  • The CFPB, FTC, SEC and IRS will continue to cover up the largest and most blatant fraud in human history — the creation of the illusion of a loan without any lender and without any loan account on the ledger of any company reflecting payment for the debt, note or mortgage.
  • Once again, wealth will be sucked out of the US economy when it is needed most in the hands of consumers who are the ONLY demographic capable of reviving and stabilizing a consumer-driven economy.

Moral of the story: It’s not capitalism if you are stealing something for the sake of grabbing money. That is and always has been grant theft.

*
Neil F Garfield, MBA, JD, 73, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
  • But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.
  • Yes you DO need a lawyer.
  • If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.
*
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Maine Decision Presents New Challenges for Hearsay objections on Fabricated Records

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

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

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

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

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

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

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

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

*
Neil F Garfield, MBA, JD, 73, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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CLICK HERE TO ORDER TERA – not necessary if you order PDR PREMIUM.
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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
  • But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.
  • Yes you DO need a lawyer.
  • If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.
*
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The Key to Winning is Aggressive Discovery and Compliance with Court Orders

I have just received a slew of inquiries about what to do when the  foreclosure mill files evasive responses and objections. Here is the answer. Discovery consists of the following steps toward victory:
  1. Framing your answer, affirmative defenses and/or allegations such that you are challenging the status and ownership of the underlying debt.
  2. Draft your discovery demands such that they all relate to status and ownership of the debt and the right to represent the designated Claimant or Plaintiff.
  3. File a motion to compel answers after you receive evasive answers and nonsensical objections. Get a hearing. Appear at the hearing with a good argument as to why your discovery will lead to the discovery of admissible evidence that is relevant to the case at bar. Get an order compelling discovery response.
  4. File motion for sanctions after you again receive evasive answers and nonsensical objections. Get a hearing. Appear at the hearing with a good argument as to why your discovery demands are necessary for your defense and will lead to the discovery of admissible evidence that is relevant to the case at bar. Get an order on sanctions in which the court will probably give them one more chance to comply with the rules.
  5. File renewed motion for sanctions after you again receive evasive answers and nonsensical objections. Get a hearing. Appear at the hearing with a good argument as to why the opposition should be found in contempt of court order, in contempt of court procedural rules, and ask for striking their pleadings as long as they are unwilling to provide answers and documents that show proof they paid value for the underlying obligation. Get an order on sanctions in which the court will probably give them one more chance to comply with the rules.
  6. File a motion in limine. Ask the court to limit evidence on the existence and ownership and status of the debt. Get a hearing. Appear at the hearing with a good argument.
Your pleadings should include something like the following:
Opposing counsel has filed a common place boilerplate response to simple requests whose purpose is to reveal the status and ownership of the subject obligation, which is the central or sole issue in the case at bar. Opposing counsel seems to want the court to get distracted into other areas of inquiry or law. The plain truth of the case at bar is that if the designated plaintiff owns the debt and the defendant has failed to pay that debt, then a declaration of default is proper and foreclosure proceedings are appropriate.
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But the reverse is also true. If opposing counsel cannot confirm ownership of the debt despite lawful discovery propounded in accordance with the rules of court, then there is no case at all. In such event, Defendant is entitled to the finding that any presumption of ownership of the debt has been rebutted and an inference that no such ownership exists. Opposing counsel could come back and produce evidence that his “client” paid for the debt — but only after complying with the rules of discovery. Otherwise a motion in limine would bar any such evidence at trial, thus ending the case.
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The objections are based upon the disingenuous assertion that the requests are not related to the issues of the case. To be clear, as stated in Defendant’s Answer and Affirmative defenses, the issues raised by Plaintiff and defendant are the same — the status and ownership of the debt that the Opposing counsel seeks to enforce. Either the debt exists and is owned by the designated Plaintiff who is represented by opposing counsel or it does not exist or it is not owned by the designated Plaintiff.

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If opposing counsel maintains an attorney client relationship with an existing legal entity that claims it owns the underlying debt and has been injured by “nonpayment” then counsel has every right to plead, object and otherwise represent the claimant in court.
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But if opposing counsel maintains no attorney client relationship with any name included in the designation of Plaintiff, then they have no right to claim any right to represent or pursue any claim on behalf of a third party who is not present in the case.
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So questions about the true nature of the relationship between opposing counsel and the designated Plaintiff are highly relevant and any objection thereto is dilatory and a complete waste of the time of the court and Defendant’s counsel. Since opposing counsel has also made a demand for recovery of attorney fees and costs, Defendant  is obviously entitled to know the nature and terms of the contract for legal services — and the parties thereto.
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Further, if the designated Plaintiff — or some name contained within the label of the designated Plaintiff — has not paid value for the underlying obligation, then the action fails for lack of compliance with Florida statutes adopting in whole and verbatim Article 9 §203 of the Uniform Commercial Code which states unequivocally that as a condition precedent to enforcement of a security instrument, the claimant must have paid value for the underlying obligation. If the designated Plaintiff has not paid value, then the action must be dismissed for failure of condition precedent.
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Further, failure to have made such payment eliminates the implied (but unstated) assertion of harm since no harm could come to anyone who did not own the debt. This eliminates the foundation for jurisdiction over both subject matter (the claim for unpaid debt) and personal jurisdiction over the designated Plaintiff who has no claim as well as the Defendant who is under no duty to defend a baseless claim.
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For The sake of justice, finality and judicial economy, such boilerplate objections should be rejected both to stop opposing counsel in this case and so serve as a deterrent in the many foreclosure cases that will soon clog the court system again.
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Neil F Garfield, MBA, JD, 73, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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FREE REVIEW: Don’t wait, Act NOW!

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

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

The danger is in the labels.

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

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

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

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

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

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It is entirely possible to direct payments to “Ocwen” for example. The payments are forwarded to an intermediary who in turn forwards the payment (if electronic) or forwards the check to the Black Knight/CoreLogic system we have been talking about. With Check 21 and other practices this is all done in seconds.
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So your check to Ocwen gets deposited into an account labelled “ocwen” which is owned by Black Knight who has a contract with the investment bank in which it gives the investment bank or its agent full authority to make deposits and withdraw money.

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Once again the misdirection comes from knee jerk reaction to seeing a label. We are culturally conditioned to assume the label means something when it doesn’t. In the above example, if the transaction was real, the check would be made out and deposited into the account of Morgan Securities, for example. The homeowner/”borrower” of course has no clue about any of this and simply assumes he is paying his mortgage payment on an existing loan account owned by some “investor”. All of that could alternatively be labeled as “Plumbing Repairs.”
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But Morgan doesn’t want to receive the money directly because there is no business or legal reason it should be received by Morgan. Morgan holds no receivable from the homeowner/”borrower.” It is simply not entitled to receive that money even though it is happening every hour.
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All such payments are pure revenue that is untaxed because for tax purposes it is labelled as either return of loan or return of capital or it is labeled as off balance sheet and doesn’t show up at all. The real money transfers are recorded in a jurisdiction that asserts taxing authority and then waives all tax. Bermuda was popular when I last looked at this.
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For foreclosure defense you don’t need to prove any of that. You just need to know and believe it. Because then you can ask questions in discovery that you know they can never answer without admitting to tax fraud, theft, and other crimes.
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It is their LACK of answers that is the useful tool in this litigation and the law is very clear — if you persist in demanding discovery, motions to compel, motions for sanctions and motions and in limine you will most likely win the case hands down without any right of the foreclosure mill to refile.
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The banks want you to focus on how wrong the banks were in their behavior so you will make allegations that you will never be able to prove. The real defense is like Karate Kid (“no be there”). Just deny everything they have to say and then pursue discovery — but in discovery you focus on the issues that are central to every foreclosure — status and ownership of the debt.
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Neil F Garfield, MBA, JD, 73, is a Florida licensed trial attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
*

FREE REVIEW: Don’t wait, Act NOW!

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