foreclosure | Livinglies's Weblog

Homeowners with Courage and Conviction Generally Win Foreclosure Cases

Posted on May 18, 2022 by Neil Garfield

I often receive links to cases that either corroborate what I have been saying or challenge my conclusions. Many of those links are opinions from trial courts, and most of those are from Federal DIstrict judges (mainly because most, but not all, state court judges do not issue opinions justifying their rulings.

Even in best-case scenarios, the opinion of a trial judge is not binding as a precedent on anyone. But reading such decisions does inform us about the assumptions, presumptions, and biases confronted by homeowners.

One such decision comes from Pennsylvania Federal Court. U.S. Bank N.A. v Gerber. U.S. Bank v. Gerber, 380 F. Supp. 3d 429 (M.D. Pa. 2018). Some people like the way that the District Court Judge says that the lawyers who supposedly represent U.S. Bank N.A. are missing the mark. And the decision does raise some interesting points about strategy and tactics for homeowners.

This particular decision says that the argument employed in thousands of cases “misses the mark.” The Judge is referring to the erroneous argument that since homeowners were not a party to the chain of transactions that were supposedly memorialized by assignments of mortgage and endorsements, they (the homeowners) have no standing to challenge them even if they are false.

I agree that this one conclusion by this trial judge is an important rejection of one of the most common “defenses” raised by lawyers for the banks. But it does not create a precedent such that any other court needs to follow it. You can show it to another judge as a persuasive authority but it has no precedential authority — i.e., a requirement that the next judge must follow the reasoning or conclusions of the trial judge who issued it.

I think the larger issue is the elephant in the living room. Reading the case law on foreclosure litigation, one thing has become crystal clear: Despite the APPARENT accuracy of homeowner defenses, such defenses will only be considered relevant to the case if they are worded such that the connection to the prima facie case in foreclosure is perfectly clear.

The problem is that lawyers and pro se homeowners are too scared to unambiguously challenge the existence, ownership, and authority over an allegedly unpaid loan account.

It is perfectly within the scope of good pleading to make a statement and then say that you will prove it during discovery. (Just don’t make a statement about a fact that you have already admitted). It is equally permissible to say that the opposition refuses to supply answers to your discovery demands and that both evidentiary and monetary sanctions should apply.

This is why I keep pressing homeowners to secure the services of competent trial counsel or to find counsel who is responsive to direction from attorneys who win these cases. And it is why I emphasize to homeowners the importance of understanding securitization.

Gerber, without realizing it, saddled up his horse using all the right gear and then rode off bareback on another horse. This is a common failure of lawyers and pro se litigants. For example, it is not enough to say that securitization changed the contract. The judge says quite clearly that this might be true but that the burden of pleading is on the one who makes the statement. So if Gerber had alleged the ways in which the contract was changed with much greater specificity, the judge would have taken the defenses more seriously.

I do think the judge was probably wrong in construing some of the reasons the contract was changed as not specific enough. But with the weight of securitization infrastructure surrounding everything, the only thing that a judge will respond to is that the current claimant has no claim and will not be able to produce evidence corroborating their claim and implied assertions in discovery.

In essence, the homeowner is forced under current judicial doctrine to boldly state that there is neither a contract nor a debt owed by the homeowner to the designated Plaintiff or Beneficiary.

The defense needs to be that the named Plaintiff (U.S. Bank as trustee) is pursuing a false claim, has never collected any money, and has no intention of receiving any proceeds from the forced sale or collection from the homeowner or his/her property.

But both homeowners and their attorneys are afraid to state that because of the possibility that the lawyers for the designated Plaintiff will come up with some actual proof of payment of value in exchange for a valid conveyance of ownership of the underlying obligation, the legal debt, note, and mortgage. Nobody likes to look stupid.

As with all cases, the timid lose even if they are right. What stops homeowners from winning is the fear that the “Banks” will be able to produce an admissible record corroborating the existence, ownership, and authority of U.S. Bank or any other designated claimant. They can’t and if they could they would have done so 20 years ago.

The plain facts support two main points:

(1) the documents upon which the foreclosure mills place reliance are false — i.e., they memorialize transactions that never occurred, meaning that the final designated claimant never came to own the alleged loan account, never suffered any economic loss, and never had a record of ownership of any loan account; and

(2) the investment banks have used their outsized influence to change both pleading and proof requirements in foreclosure litigation, resulting in the courts changing the laws governing such transactions in ways that are inconsistent with the intent and content of laws passed by Congress and the laws of any State legislature.

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Of course that in and of itself is unconstitutional because only legislatures can make laws. And only courts can enforce them.

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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, 75, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE COMMENTS ON THIS BLOG AND ELSEWHERE ARE BASED ON THE ABILITY OF A HOMEOWNER TO WIN THE CASE NOT MERELY SETTLE IT. OTHER LAWYERS HAVE STRATEGIES DIRECTED AT SETTLEMENT OR MODIFICATION. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.

But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more. In addition, although currently rare, it can also result in your homestead being free and clear of any mortgage lien that you contested. (No Guarantee).

Yes you DO need a lawyer.
If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.

Please visit www.lendinglies.com for more information.

Filed under: foreclosure | 3 Comments »

Should I Withhold Payment and Place the Money in Escrow

Posted on May 17, 2022 by Neil Garfield

Wall Street is quietly shifting pieces around on a chess board that the homeowner does not know exists and cannot see. There are several examples of this. A shift from U.S. Bank to U.S. Bank Trust, alleged transfers (without payment) of alleged “accounts” from one named trust to another, the rise of “Legal Title Trustee” instead of just trustee, and the list goes on.

I recently answered a fairly simple question about whether the payments should be withheld until the actual creditor acknowledged with its own officer or employee that it did in fact acquire the subject unpaid loan account. The law requires the actual creditor to sign off on some legally recognizable event. The banks have ignored that requirement and give notice from new entities having no right, title, or justification for doing so.

The answer to the withholding question is that there is split opinion. On the one hand, you don’t want to be paying anyone who is not entitled to receive it. On the other hand, you don’t want to put yourself in a worse position than you have in the current status quo. If you are going to withhold the payments it would be wise to hold them in escrow. Either way, I highly recommend that you have a strategic plan in place before you decide one way or the other.

The way I would do it, is to make the payment(s) to the escrow agent with written instructions to deliver the money to the creditor who owns and paid for the alleged underlying obligation — or a representative or agent authorized by a party who is a creditor as I defined it above. Then I would have the escrow agent send a letter (certified return receipt requested) to all the people that you are sending the QWR and DVL to — in which he or she says that he or she has received the payment and that the agent now wants to pay the creditor as instructed by the homeowner.

[Practice Note: This almost surely misleading to an interpleader lawsuit in court. The escrow agent would say that he doesn’t know what to do with the money and that he doesn’t care who gets it].

In fact, the newest notices being received could be referenced. Conveyance of a mortgage without a concurrent conveyance of the underlying debt is a legal nullity. Enforcement of the security agreement by a party who has not paid value in exchange for receiving ownership (not merely evidence of ownership) of the underlying obligation (see UCC9-203, adopted verbatim as State law).

In reference to the latest notice of transfer, it is not accompanied by a written document transferring ownership of the alleged unpaid loan account from one owner to another. The document needs to be signed by an officer or employee of the company or other business entity that is purportedly making the transfer. Such documents normally contain a warranty of title.

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Prior notices have referenced the owner of an alleged unpaid loan account due from the homeowner as Bank of New York Mellon fka Bank of New York as agent or trustee for JP Morgan Chase Bank, N.A. as Trustee for Certificate Holders of “CWHEQ Revolving Home Equity Loan Trust 2005-D” as claimed successor to U.S. Bank N.A., as Trustee for the LSF9 Master Participation Trust.

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The new notice sent under the letterhead of GS Mortgage-Backed Securities Trust 2022-RPL2 (GSM Trust) appears to assert the third transfer from one trust to another. It is unsigned and provides no guidance as to finding or communicating with anyone at Bank of New York Mellon, JP Morgan Chase Bank, N.A.,“CWHEQ Revolving Home Equity Loan Trust 2005-D”, U.S. Bank N.A., U.S. Bank Trust N.A or the LSF9 Master Participation Trust. The “GS” refers to Goldman Sachs, which is almost certainly the party with contractual control over all activities relating to the Peterson loan — even though it has no ownership interest in any payment, demand for payment, underlying obligation, legal debt, note or mortgage (deed of trust).

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The escrow agent would go on to say that having received the foregoing notice, the homeowner is in an untenable position. Having received notice of the transfer it is obvious that efforts will be made to administer, collect or enforce payments that are now claimed to be owed to GS Mortgage-Backed Securities Trust 2022-RPL2 (GSM Trust).

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But the notice contains ambiguous language. It asserts that the subject alleged unpaid loan account has been “sold, assigned or transferred.” But the absence of any reference to a prior “owner” or creditor leaves the homeowner in doubt as to the existence, status, and ownership of the alleged unpaid loan account.

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The notice does not assert the name of the seller (if sold), nor an attachment of a formal assignment recorded in county records. In addition, the language leaves the homeowner in doubt as to whether the Notice itself is intended to be an assignment, in which case it is missing an assignor.

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“As the escrow agent for the homeowner, I request that you produce a copy of the genuine instrument in which some person or entity has conveyed ownership of an unpaid obligation due from the homeowner to U.S. Bank Trust, N.A., as trustee for the GSM Trust.”

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“Upon receipt of such instrument, signed by authorized persons in the employ of U.S. Bank Trust, N.A. and the grantor of any instrument(s) transferring ownership of the security instrument and the underlying obligation, I am authorized to deliver payment.”

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The obvious question here is whether you want to add the above narrative to the QWR and DVL or do you want these questions to come from perhaps a real estate attorney who is demanding current answers to current questions.

One of the subtle changes they are attempting to make is from U.S. Bank to U.S. Bank Trust, which would be an entirely separate entity from U.S. Bank. I have no doubt that the legal department at U.S. Bank insisted on those changes. They are well aware that securitization infrastructures might blow up or collapse and that there might be liability attached to renting their name out to third parties to imply the existence of a trust owning a loan that is managed by the trustee. By switching the name of the trustee from the bank itself to a business entity that has little or no assets, they are engaged in asset protection strategies.

This means that U.S. Bank has reviewed the questions raised by the analysis contained in forensic reports or other documents and concluded that there is a current risk that U.S. Bank could be the target of a substantial class action or government agency enforcement.

The question is whether you want to include a revised narrative in your QWR had DVL or you want an escrow agent to raise the current issues with U.S. Bank Trust without going backward in time to when the securitization infrastructure was first created under the LSF9 Trust with U.S. Bank as trustee.

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Please Donate to Support Neil Garfield’s Efforts to Stop Foreclosure Fraud.
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Neil F Garfield, MBA, JD, 75, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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FREE REVIEW: Don’t wait, Act NOW!

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

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

Click here for Administrative Strategy ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
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CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE COMMENTS ON THIS BLOG AND ELSEWHERE ARE BASED ON THE ABILITY OF A HOMEOWNER TO WIN THE CASE NOT MERELY SETTLE IT. OTHER LAWYERS HAVE STRATEGIES DIRECTED AT SETTLEMENT OR MODIFICATION. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.

But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more. In addition, although currently rare, it can also result in your homestead being free and clear of any mortgage lien that you contested. (No Guarantee).

Yes you DO need a lawyer.
If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.

Please visit www.lendinglies.com for more information.

Filed under: foreclosure | 3 Comments »

How to Defeat False Claims and Documents in Court

Posted on May 16, 2022 by Neil Garfield

The simple fact in almost every single foreclosure today is that the entity named as the claimant has absolutely no interest in the success or failure of the litigation. But they are addicted to the revenue that is generated from the permissive use of the claimant’s name.

So the way lawyers work around this basic fatal defect is by creating a false paper trail such that the examiner (or trier of fact) is lulled into believing that the ball exists at least under one of the fast-moving cups.

In plain language, for the past 20+ years, the foreclosure marketplace has been dominated by false claims of nonexistent losses derived from unauthorized declarations of default. When the case finally gets to court, the facial validity of documents makes it appear that there are no gaps, let alone fatal ones.

A case in point is the Lehman Brothers-Aurora Loan Service gambit. As the investment bank bookrunner. Lehman was sponsoring multiple entities to sell highly complex, sophisticated financial products masquerading as “loans.”

The actual structure of the deal required continued control by Lehman, even though it neither acquired nor retained any rights, powers or legally recognized interest in homeowner transactions.

The goal was to escape any regulation under lending, servicing, or securities laws.

The first step in fake paperwork was the appointment of Aurora as the “loan servicer”. The appointment is fatally efficient because it was not granted by a grantor who had any authority to do so. And THAT is the pattern that is replicated for all paperwork, assignments, and endorsement after that point in time.

So when Lehman crashed and burned, nothing happened. No loan account was established anywhere other than a payment history generated by FINTECH companies who secretly operated under the name of a company that was designated and named as a servicer even though the company never received, processed, accounted for, or distributed any money for or on behalf of creditors.

The lawyers would then march into court with a printout of a report that was proffered as a “business record” even though the payment history report was NOT a record of any business conducted by the named, designated “servicer.”

.This gambit enabled the lawyers to establish the existence, status, and ownership of the debt and to “corroborate” a default — which by definition means that someone has suffered some financial injury arising from the behavior of some promisor or maker of a promissory note.

Through scripted argument and audacity the lawyers play into the bias of a judge by establishing that such an injury was sustained, the named claimant has suffered the injury and that declaration of default required under statutes was perfectly accurate, just, and legal.

As to ownership of the promise to pay, lawyers skate over that simply through the creation of false fabricated documents in furtherance of a scheme to gain illicit profits and revenues. They work backward and once the name of a Plaintiff or Beneficiary is selected they created fake documents that raise legal presumptions that the named company actually owns the obligation (loan account).

But as dozens of good trial lawyers have found, the legal presumption arising from the apparent facial validity of the fake documents utterly fails when challenged. The problem is that it is not challenged enough.

So thousands of homeowners have either achieved clear title or otherwise settled on highly favorable terms but they only represent a speck on the map of millions of homes and hundreds of communities that were completely destroyed by the illegal prosecution of foreclosures.

Recently a client asked a series of questions about the Lehman-Aurora fiasco. Here is what I wrote:

You wrote “how NationStar has walked into court holding a promissory note signed in blank by Aurora who was denied foreclosure..” They didn’t possess the note and they had not received the grant of authority to possess or enforce the note. The lawyers, supposedly speaking for a third party claimant merely said they were a holder which IMPLIES but does not assert physical possession of the note.

You wrote ” We argue that Aurora can’t transfer something they don’t have. If a previous judge already determined that Aurora failed to prove to be a holder with the right to foreclose, then how can Aurora transfer that same note to Nationstar and bestow enforcement rights it was previously denied ?.” They can’t. The written conveyance of ownership of a mortgage without transferring the underlying obligation is a legal nullity in all U.S. jurisdictions. As for the holding of the previous judge, the question is what was the exact ruling? If the judge found that Aurora did not have possession and said as much in a court order, that ends it. The matter has already been litigated and is barred by res judicata from renewing such litigation.

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The attorneys will often try anyway and in the absence of a direct response seeking dismissal or judgment based upon res judicata, those lawyers will and do succeed.

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You have also correctly identified yet another problem for your opposition. You need to realize that foreclosure is strictly a numbers game for the lawyers pursuing foreclosure. Since the money or property obtained from a successful foreclosure is not going to a creditor the entire procedure is all about revenue and profit.

You can argue this point when you get to the point where the opposition has steadfastly stonewalled your questions directed at confirming the existence, status, and ownership of the alleged “loan.”

So with footprints in the sand created by a QWR, DVL, and complaints to the CFPB and State AG, plus a refusal to answer those questions in discovery (perhaps in your lawsuit seeking declaratory, injunctive, and supplemental relief based on violation of RESPA, FDCPA, and FCRA, you may then freely argue that there is no loan account nor could there be any authority to administer, collect or enforce it.

In response to whatever argument opposing counsel wishes to make, counsel should not be permitted to argue it.

An objection should be raised to the effect that since they refuse to answer any direct questions about the existence, status, and ownership of the alleged loan, counsel should not be permitted to argue a position that violates statutory law, violates the rules of court, and violates court orders commanding the direct response to those questions.

If you don’t object to such arguments at that point in the process of litigation you might be waiving that objection.

This is one of many reasons why I continually say homeowners should have a lawyer familiar with courtroom procedures and antics. In order to be heard, objections must be both proper AND TIMELY.

This means that while opposing counsel is making an argument you interrupt the argument and object and firmly state your grounds and perhaps add some ad hoc comments about how opposing counsel is pretending all those violations did not exist, even if in the face of prior orders for sanctions (if you were able to get the judge to impose such sanctions).

You wrote: “The DOT follows the note so I’m not sure how the promissory holder status gybes with DOT transfers.”

The simple answer is that the law, as it has been written and accepted for centuries (even predating the establishment of the United States of America), makes enforcement of a security instrument (i.e., a foreclosure proceeding) impossible without the claimant having paid value for the alleged underlying obligation.

Although this is somewhat different from the right to enforce a note, it is not as far different as it might appear. In order to enforce a note (i.e., get a judgment for money damages) the enforcer must be (a) in possession or have a right to possession (granted by an existing “holder”) AND (b) the enforcer must have received the grant of authority to enforce (granted by a holder as defined by statute) or the actual creditor who owns the underlying obligation.

People forget the latter issue and focus on just possession. But the FEDEX delivery guy has no right to enforce even a bearer note even if his naked possession raises legal presumptions of his claimed status as “holder” which might get him past a motion to dismiss.

The problem with this position is that recent changes in common law look upon the transfer of the note as a transfer of ownership of the underlying obligation — a position that is not supported by any facts but is now almost universally applied. You must rebut such a presumption not just by saying it is wrong, but by asking for corroboration of the transfer of the underlying debt and THEN arguing that the presumption has been rebutted when the opposition refuses to answer simple questions regarding the existence, status, and ownership of the alleged “loan account.”

You wrote: “The judge stopped us before finishing saying that he had heard enough to make a ruling.” Most homeowners, as ignorant litigants, do not realize that when they use the same language as their opposition to describe a contested transaction, they are admitting to the basic elements of the foreclosure case. There is no reason for the judge to continue although the better practice would be for the judge to specifically ask if you meant to concede those points.”

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Filed under: foreclosure | Tagged: Lehman Brothers-Aurora Loan Service gambit. | 1 Comment »

A Promissory Note is NOT a debt. It is evidence of the debt and terms of repayment.

Posted on May 11, 2022 by Neil Garfield

I can remember back when Nova Law Center was an old building on what had been a World War II airstrip. My fellow students and I would satisfy our need for speed on those runways. That was in 1974.

I also remember my contracts professor, Samuel Bader (RIP). He pounded into our heads a simple but elusive fact of law. The note is not the debt. it is evidence of a debt. And he said that those who can remember and use this fact of law would do very well and those who couldn’t remember it or know how to use it would be condemned to the dustbins of historical law practice.

Securities brokerage companies marching under the flag of an “Investment Bank” understood this fact of law. The entire securitization scheme was based upon their knowledge of this fact and their knowledge that practically nobody makes that distinction when arguing a case.

Here is why it is important.

Anyone who can prove they gave money, property or services to another person can clearly claim that they must be paid, even if the amount to be paid was not clear at the time of the origination of the transaction. That is the debt. It exists even if there is no written instrument. It is enforceable without a written instrument. If you have a witness to the transaction all the better but you can show up as the sole witness to describe what happened and why the other person owes you money — without a single document.

The execution of a promissory note is evidence of a debt and the terms of repayment. But it is virtually worthless if the execution of the note is not merged with an underlying obligation as described above. Otherwise, there would be two liabilities arising from one transaction. A note without an underlying obligation is worthless.

Under modern law possession of the note PLUS a grant of authority to enforce it FROM the owner of the underlying obligation (i.e., the person to whom the money is legally owed) raises the status of a possessor (e.g. package delivery service) to a holder entitled to sue for recovery using the note as evidence of how the damages should be calculated and used in the final judgment in your favor.

THAT final judgment entitled you to a right of execution upon any property that is not protected by things like homestead laws. It does not entitle you to enforce a separate contract (mortgage) that says if you don’t pay the debt, your house can be sold at auction.

Nobody in any U.S. jurisdiction has the legal right to seek a foreclosure judgment or to use the power of sale in nonjudicial foreclosure UNLESS they have purchased the underlying obligation for value. This is how thousands of homeowners have escaped the gallows — by hammering on their right to seek evidence corroborating the fact recited in an assignment of mortgage that someone paid $10 and other valuable consideration.

This issue has become confused for many judges and lawyers. The mortgage or deed of trust will often state that the pledge of collateral contained within the mortgage instrument is meant to guarantee payments scheduled under the terms of the promissory note. Such provisions are in conflict with the laws of every U.S. jurisdiction. each of whom has adopted verbatim UCC 9-203.

It is true that you can introduce the promissory note as evidence of the debt and the schedule of required payments. But violation of the note provisions does not entitle anyone to pursue foreclosure without buying the underlying debt.

Many trial courts and appellate courts have latched onto the view that the possessor of the note is entitled to foreclose. That is clearly wrong and has been wrong for centuries. We allow for some liberality for people who want to get a judgment based upon the note alone, although ultimately at trial if there is no underlying obligation and no original transaction then there was no consideration. Such notes are subject to various defenses. While the actor seeking to enforce the note might get past a motion to dismiss they will most often lose at trial.

It is equally important that the reader take note of how the misapplication of the laws contorts reality and liability. Each maker of a promissory note is taking the risk that someone might actually pay for ownership of it and any underlying obligation. But no underlying obligation is conveyed if the grantor did not own it.

Such a purchaser under modern law is virtually immune from any normal defenses except fraud and such. The purchaser under that scenario is called a “holder in due course,” meaning they paid for it, without knowledge of the maker’s defenses and that they made the purchase in good faith.

The contortion of the rules surrounding enforcement of debts that use notes as evidence is further complicated by the misapplication of the laws governing holders in due course.

For good reason, no entity seeking foreclosure will claim to be a holder in due course. The reason is that they didn’t pay for it (violating 9-203), and/or they did not purchase it in good faith without knowledge of the maker’s defenses. If they alleged that they were holders in due course then they would add to the list of prima facie elements of this case — namely that they really and truly did pay for the assignment of the mortgage along with the underlying obligation.

So the current actors playing at foreclosure merely allege holder status (which is not true) and they expect to be treated as holders in due course. Unfortunately, the courts often oblige. But the failure of the judge to stop such antics is mostly based upon the weaponization of the judicial system, requiring the judge to accept the allegations as true and not to litigate or judge any issue that is not contested.

Even if the judge thinks there is doubt as to the status of the holder in due course or even just a holder, the judge is not allowed to turn the case around by raising objections that should have been raised by the affected party.

By conceding facts that are not in evidence, the maker is doomed to pay off at least one liability to a party that has no right to receive it.

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Yes you DO need a lawyer.
If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.

Please visit www.lendinglies.com for more information.

Filed under: foreclosure | 1 Comment »

How Appellate Courts Get it Wrong

Posted on May 10, 2022 by Neil Garfield

The main reason that Appellate Courts get it wrong when a homeowner appeals a decision is that the homeowner admits the basic legally required components (elements) of a foreclosure action. In arguing the point the typical homeowner fails to address the issue of whether the loan still existed, whether the obligation was unpaid, and who has the “loan” on their books and records. In addition, this is probably a carryover from the labels that were used at trial — loan, lender, and servicer.

Lawyers are all wordsmiths, some better than others. Good lawyers spot the hairs that need to be split. Great lawyers are those who know how to split the hairs in a persuasive way.

This is the case in point. I will take you through the analysis.

Mr. Smith borrowed $934,500 from Washington Mutual bank. The problem here is that this could be true. The great likelihood is that it is false. WMB was a commercial bank taking deposits and making loans. It had the capital and credit to make loans. It is the date that tells the story. By 2005 WMB was acting strictly as an originator — i.e., a seller of financial products described inaccurately as loans and withholding the description of the transaction as the launch point for selling securities to investors.

NY State and other states tried to criminalize behavior that causes false documents to be presented or recorded. It was never passed into law. Had it become law, the designated claimants would have vanished leaving the originator hanging naked in the wind without any claim to ownership of the underlying obligation and therefore no claim to administer, collect or enforce.

This was a refinance. Like the issue above, it could be true if the prior transaction was in fact a loan. This is where the definition becomes relevant.

So the only way of revealing the truth behind this statement is to ask about events and documents that would exist and transactions that did transpire if the prior transaction was a loan.
For example (1) at the completion of the transaction cycle (if there ever was one) did an unpaid loan account exist on the books of any person or company? (2) is that “owner” the claimant? (3) has anyone entered data in their books and records demonstrating a financial loss caused by non-receipt of a scheduled payment (if not the declaration of default is a legal nullity) (4) can the current parties show evidence that corroborates the presumption that the promise to pay was sold in a transaction in which the promise was paid for in legal value?
And finally, did any money or value exchange hands on the “refinance” other than money conveyed to the homeowner (if any). Generally speaking, most transactions that were labeled “Refinance” were nothing of the sort. It was simply a new opportunity to get signatures on documents that were merged into more securities sold based on the premise that the certificates represented some attributes of the name unpaid obligation. But that leads to the word “Obligation.” Does it exist if nobody is reporting it as an asset on their books and records?

Assignment from the FDIC: No such assignment was ever executed or even intended by the FDIC to be executed.

At no time did the FDIC assert ownership over any WMB loan.
At no time did the FDIC have any equitable or legal interest in any WMB loan
At no time after origination did WMB own any “loan.”

Chase fabricated an assignment once it was obvious that it had not become the owner of all the promises made by all the WMB homeowners. Without an assignment of mortgage, no such claim could be asserted. Chase fabricated an assignment from the FDIC and then signed as an agent or attorney in fact for the FDIC. Besides the fact that the FDIC cannot delegate such rights to a private company, it simply never happened. It was a forged robosigned document. Allowing Chase to claim ownership and therefore the right to administer, collect and enforce the homeowners’ promises was a trillion-dollar gift from our government to one of the worst players in the marketplace.

Smith obtained a loan modification from WMB. Any document WMB executed, or which was executed allegedly on behalf of WMB after origination was a legal nullity. This is because the transaction with the homeowner was funded entirely by funds borrowed by JPM Chase or Morgan Stanly from Credit Suisse.

But Chase was not named as the lender, even though it funded the transaction, albeit from borrowed funds.
And WMB was named the lender even though it did not fund the transaction.
At the conclusion of the transaction cycle, nobody was left holding the proverbial bag — liability, and vulnerability as a lender, successor lender, or servicer. The loan account vanished into thin air making it nearly impossible to prosecute anyone for criminal behavior or for civil liability. The “modification” was actually an attempt to change the name of the lender without actually publicizing it. Most importantly since the certificates were not regulated securities and they had escaped being labeled as a lender, there was no statutory duty of disclosure — or at least so they thought.

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If the house is sold, is there anything I can do?

Posted on May 9, 2022 by Neil Garfield

At least 40% of the inquiries received by my office ask what they can do after the auction has occurred or even after the REO property has been liquidated.

As I have stated repeatedly in the past, the further you go procedurally the less likely you are to obtain any relief. If you want any of this reality to change, you need to elect representatives to Congress and state legislatures who truly intend to block efforts seeking to enforce a virtual loan account instead of a real one. One simple change could be a grant of agency power and a requirement that it be used to establish the existence, status and ownership of the loan account upon which the enforcers are relying.

So in response to one such inquiry (our registration form), here is what I wrote:

You have presented a multitude of issues. Unfortunately, most of the issues that you are presenting will never be litigated to a conclusion. You need to narrow the issues that you want to present in order to obtain a remedy. That means an analysis of your documents, both recorded and unrecorded (correspondence etc). After that is compiled, you need to narrow the allegations you want to make, and then perform legal research to see which causes of action might be barred by the statute of limitations or res judicata (the thing has already been litigated).

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You are no doubt aware that once a court action is concluded with findings of facts and final judgment, it is cloaked with the presumption of validity even if it is wrong. In short, you have an uphill battle ahead of you requiring considerable time, money and effort.

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I will confirm that the parties involved in the fake chain of events and documents are all vehicles for laundering titles and claims. I am confirming without any analysis beyond a quick review of your registration statement that fraud was involved and that you never should have lost —- if the law had been properly applied.

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You will also need an attorney who can provide you with an opinion on the impact of any statute of limitations. If you want any relief at all don’t depend upon any federal or state agency to get it for you. You need to file a lawsuit as quickly as possible because time limits are always running.

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As for narrowing the causes of action likely to survive a motion to dismiss or a motion for summary judgment, there are some simple rules that generally are helpful although you would need to confirm with a lawyer who is licensed in the jurisdiction in which your property is located.

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Adding parties to your lawsuit will make the res judicata argument much weaker, which is what you want.

The rules of procedure require a short plain statement upon which relief could be granted. But the reality is that unless you allege the entirety of your narrative with specificity as to dates, times, and parties involved, it is almost certain that your lawsuit will be dismissed.

Don’t sue the judge, the courts or the state. Besides the fact that you will probably lose, the inclusion of such allegations will be received as the ravings of a conspiracy theorist. This maxim is true even if you are dead right about what happened.

Don’t allege anything that you cannot prove with clear and convincing evidence.

Don’t allege fraud. It is far more complex to plead and prove and it raises the burden of proof technically to clear and convincing but in reality, the burden is raised to beyond a reasonable doubt.

You can allege misrepresentation, negligence, gross negligence, breach of statutory duties, disgorgement, and breach of common law duties.

Argue with the judge not against him or her.

Burden of proof and burden of persuasion are tricky items. That is why you should have an experienced trial attorney. You need to accept the fact that you will never prove that the opposition were crooks and fraudsters.

But, if you make the correct allegations, you can set up the opposition for sanctions after you serve reasonable and timely demands for discovery relating to the existence, status, and ownership of the alleged underlying obligation.

STRATEGIES AND TACTICS:

Never start with the assumption that your transaction was a loan or still might be.

Never refer to the transaction as a loan.

Never refer to anyone as a lender or successor lender.

Never refer to anyone as the servicer.

In discovery ask questions that would be axiomatically true if there was an unpaid loan account on the books of the identified claimant.

Never refer to any bank entity as a trustee.

In most cases all such labels are false.

When the opposing parties fail or refuse to provide a direct answer to a direct question, motion practice begins, leading up to sanctions against them. Your goal in such circumstances is evidentiary sanctions preventing them from introducing any evidence of the existence, status, or ownership of the alleged underlying obligation.

Simply stated if they don’t provide such proof in discovery — which they never do — they can’t surprise you at trial with such proof. With evidentiary sanctions, you can also get an order stating that the opposition may not rely on legal presumptions arising from alleged facially valid documents.

If you want our help, given the procedural status of your case you need to start with the PDR PREMIUM.

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How do I get a lawyer to defend unlawful foreclosure?

Posted on May 5, 2022 by Neil Garfield

The biggest challenge that homeowners face is securing the services of a lawyer who really acts like a defense lawyer — i.e., he or she seeks to win the case regardless of whether they think the client has committed a breach of contract or violation of law. These lawyers consistently win at least 65% of their cases even though they understand nothing about investment banking or current lending practices.

They want to know whether the opposition can corroborate their assertions and allegations. The lawyers test those assertions and allegations.

When they see that the opposition fails or refuses to comply with those requests they pounce without regard to the “moral outcome” of the case.

Their job is to win and any lawyer who practices basic defense strategies attacking the prima facie case of the opposition can win — even if they don’t completely understand why they are winning.

Homeowners who were successful in engaging a lawyer whose goal was to win have been successful at winning or settling their case on very favorable terms. The trick is getting a lawyer who has no preconceived notions about the foreclosure “marketplace.”

Like everyone else, they will start with the thought that there must be something supporting the claim.

What you need is a lawyer who is experienced and hopefully gifted at employing defensive strategies and tactics. It appears that most of those lawyers are in law firms that are governed by senior lawyers who see representing homeowners as a losing proposition.

They assume the claim is valid even if it is imperfect. They assume they will lose and they further assume that the homeowner is incapable of paying the fees for all the work that must be done to successfully defend a lawsuit or claim.

So how do you get a lawyer? You start off by seeking a lawyer who has a general trial practice. They are usually found in the area of personal injury, where that is only part of their practice. These lawyers have no potential conflict with the investment banks.

Then you must present yourself as a financially responsible individual who is able to pay the fees required. This starts with your insistence that you pay the fee for the initial consultation.

And here I have a suggestion to entice the lawyer to engage with this case. Offer a bonus on top of the normal billing if the case is resolved in favor of the homeowner.

The biggest mistake that homeowners make is that they try to get a lawyer “on the cheap.”

That results in failure to conduct an aggressive motion practice and failure to conduct investigations and discovery. Each hearing takes time including preparation and often travel time.

Homeowners who are trying to keep costs down will try to strike a deal with lawyers such that there will be no payment for this work. They are doomed to ultimate failure because the necessary work doesn’t get done.

Then you must present an executive summary of “why we can and should win this case.”

In the lawyer’s mind, his/her initial impression is going to be that there will be a witness who is the custodian of the records of the “lender”.

This imaginary witness will present an exhibit that is a certified copy of the loan account, including all debits and credits.

The witness will be able to show and testify using the exhibit that a default occurred and that the “lender” or “successor lender” has suffered an economic loss caused by the homeowner withholding or failing to pay a promised installment.

That picture is in the mind of the lawyer. It presents the picture of a futile effort to help a deadbeat homeowner escape the contractual promises made at the closing of a “loan.”

The executive summary must address the various components of that picture. It should state that no such witness will appear and that the loan account will not be presented.

By definition, the loan account is the compilation of data retrieved from the general ledger of the successor lender if there is one. It tracks the money trail.

Instead, a witness will appear who is not employed by the successor lender and who will produce a “Payment History” in lieu of the loan account.

Since the “Payment History” presents only data that relates to the activity of the homeowner and does not show the beginning and ending balance, it is not possible to compute the current balance due or whether the “lender” has debited or credited the account for other reasons.

The ending balance shown on the payment history is mere speculation since the witness will not be able to testify that he or she has ever seen the loan account on the books of the named claimant (who doesn’t even know their name was used as a claimant).

And of course the absence of the loan accont altogtehr completely rebuts any presumptionsa rising fromreports of its existence by an outside vendor who, upon digging, will be revealed to be NOT performing any servicing functions relating to the receipt, processing, accounting or disbursement of money to or for a creditor who has paid for the udnerlying allged obligation. Therefore the named “servicer” cannot report on such transctions since they were not party to those transctions.

One of the main points of the executive summary is a brief recounting of the theory and story of securitization. This must be quickly and briefly translated into results on the ground. Securitization only means that securities were issued and sold. it does not mean that any “loan” was sold. In the absence of such a sale, all actions derived from the false memorialization of such a sale are legal nullities and completely void ab initio.

When put to the test, the opposing lawyers will be unable to produce any corroborative evidence that the loan account exists, that the current claimant wons any rights to administer, collect or enforce the presumed obligation. The executive summary directly addresses the prima facie case as I have described it and it says that when challenged, each of the components of the prima facie case will fail because they can be undermined and eliminated.

The executive summary should be prepared by someone who is well acquainted with the false claims of securitization and who knows that no sale actually occurred.

The debt was not purchased or sold. The presumption that it was sold arises from false fabricated and forged documents. The only thing the lawyer needs to do to win is to undermine the presumption arising from the false documentation. Each assignment or endorsement is an implied or stated representation that the sale occurred. The lawyer need only demand that the opposing lawyers produce the evidence of that sale. They can’t.

So the litigation is going to be directed at compelling and sanctioning the opposing lawyer and his “Client” for failure to obey the rules of court and the order of the court that such documents be provided (e.g. proof of purchase by the claimant.)

While there are strategies that could terminate the litigation early, they have not been fully tested. So the homeowner must be prepared for protracted litigation because the opposing lawyer is operating under instructions to make it as hard and long as possible for the homeowner to win. those that persist do win. And the defense lawyer can get paid for his or her time — usually at a rate of $400+ per hour, plus a bonus of perhaps $10,000 or $20,000.
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This isn’t for everyone. If the numbers don’t add up for you then simply don’t start. It is a bad thing that is happening to you but the fact is that the opposition will push the foreclosure through if they can even though it is a false claim. So homes with fair market value below $100,000 might not present a viable litigation objective when compared with $20,000-$40,000 in litigation costs.

On the other hand, for a home worth $250,000+ the prospect of converting all of that into equity makes good sense.

NOTE TO READERS AND FOLLOWERS OF THE NEIL GARFIELD SHOW: I have a mystery medical condition that requires me to take some medication that interferes with my usual clarity of thinking as the day progresses. Something had to give, so I am taking a break from presenting the Neil Garfield Show on blogtalkradio.com. I will probably return in a couple of weeks. In the meanwhile, there are more than 300 podcasts you can listen to that will keep you well-informed. There is no cost or obligation for listening to the NEil garfield Show either live or as a Podcast.

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Homeowners Alert! You Are Corresponding With Machines, Not People.

Posted on May 4, 2022 by Neil Garfield

Most people do not spend their time keeping up with advances in technology. When it comes to their front door they know it has arrived.

For about 12 years I have been telling people that there is a “high probability” that no human is making any decision and no human is doing anything with respect to their alleged loan account. The only exceptions are (1) a lawyer appearing in court and (2) a robowitness appearing at trial knowing only the content of a prepared script.

When homeowners write to the company that has been named “servicer” of a receivable account due from the homeowner they normally think that someone reads what they wrote. And the response, if any, appears to have been written by somebody.

Recent advances in Artificial Intelligence, particularly with language have now stepped over the line from “highly probable” to complete certainty. Nothing you write to them is read by a human being and nothing written back to you is written by any human being or even approved by the human being. The advantage, when you are running the largest economic scam in human history, is that no person can be accused of doing anything because, in fact, they didn’t.

People ask me questions like “Why are they doing this?” Embedded in the question is a belief that some human intelligence is calling the shots. No, it is all machine-driven. No investigation or assessment is ever made with respect to forbearance, modification, workouts, or anything else. The declaration of default you receive is not a decision made by any human representing any company.

And when you get statements or other pieces of correspondence, and the body of the message is under a letterhead like, for example, Ocwen, that is not the entity who sent it and it is not the entity on whose behalf the message was sent.

To get more information I strongly recommend you read a recent article in the New York Times. Here is the link: https://www.nytimes.com/2022/04/15/magazine/ai-language.html?referringSource=articleShare

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“Court Bias” is an Unproductive Rabbit Hole

Posted on May 2, 2022 by Neil Garfield

Practically every email and inquiry I get contains complaints about court bias. It is as though people think that there are humans on this planet who have no opinion or bias. They point out examples of being steamrolled, ignored or otherwise wiped out in foreclosure litigation and they blame the opposing lawyers for being evil (which they might be) and they blame the judge for being biased (which is probably true in most cases).

Here is my answer to all of that: Bias is not a sin. Nor is it insurmountable.

Substantively you are correct. Procedurally you are incorrect. You fail to acknowledge that every case, whether civil pr criminal, starts off with bias. Everyone in the courtroom has it. The Judge, the jury, the bailiff, and even the court reporter.

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There is no case in which humans are involved where there is no bias. To project failure on the basis of bias is like giving up one’s life because of the presence of air. Having bias and even acting upon it is not a crime under the constitution or any statute or common law precedent.

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We have all heard about cases in which an obviously guilty defendant was “acquitted.” And then people all get in an uproar about that and how the system failed to work properly.

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That is because they don’t understand constitutional and statutory law. A verdict of “not guilty” does not mean “innocent.” It means that the prosecution failed to prove their case beyond reasonable doubt — not that the defendant was innocent. That is our legal system.

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How does a defendant get a “not guilty” verdict? The lawyer attacks the predicates for the prima facie case against his client. If the search is bad the case is thrown out because our constitutional right to privacy was violated by law enforcement. that is how we keep them in line. The lawyer does not seek to prove his client is innocent because he need not do that to win. The lawyer must only undermine the factual or legal premise of the case filed against his client.

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So applying this to foreclosure cases, what you may be missing is the fact that homeowners win all the time. And the way they win is by undermining the case filed against the homeowner. They never win by proving that the opposition is composed of all crooks and liars. They win because they timely and properly bring up issues that the judge must decide in a manner in which the court is required to make a decision between the bias of the court and the procedure required to preserve the constitutional integrity of the legal system.

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I don’t deny that there are judges that will rule in favor of bias. But nearly all the examples of judges ruling by bias consist of decisions that I would have made myself if I was sitting on the bench. The judge is there to call balls and strikes and not to pick winners.

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If the homeowner brings up issues long after the appropriate time and place to do it, the homeowner has waived those defensive strategies in most cases. For example, you can’t refer to “the loan” and the “the servicer” and the “account” and then argue that they don’t exist. Here is another common example: objecting to hearsay after a string of 12 questions asked and answered. When the first question calling for a hearsay answer was put to a witness, THAT was the time to object. If not the objection is waived. Case over.

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So the moral of the story is that the criminal defense lawyer does not seek to prove his client is innocent. He or she seeks to undermine the case filed against the defendant. The foreclosure defense lawyer who wins recognized simply that it is not the job of the lawyer to prove that the claim does not exist. It is the job of the foreclosure defense attorney to undermine the ability of the opposition to prove a case against the homeowner.

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Why the CFPB Announcement is Very Important

Posted on May 2, 2022 by Neil Garfield

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

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

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

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

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

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

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

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

Those records are the only thing that the dark side has to establish the existence of an unpaid debt and a creditor. U.S. Bank, N.A. for example does not receive documents or money out of the cash flow created by transactions with homeowners. The allegation, assertion, or claim has always been that it had “constructive possession” because the company that was named as the “servicer” had received the original documents.

White will be revealed and highlighted by the policy announced by the CFPB, is that the named servicer does not receive any money or any documents. Instead, there are fabricated documents from which one might assume or presume that money and documents had flowed to the company that was named as a “Servicer.”

Even if such companies, like Ocwen for example, came into actual possession of an original note (unlikely because notes are routinely destroyed contemporaneously with closing), it would mean nothing because they don’t have the right to enforce. People tend to forget the second part of the lawyers seeking Foreclosure use a variety of tactics to paper over that fatal deficiency.

Wall Street investment banks invented a circuitous route to get around this fatal defect. They use documents that are labeled as “power of attorney” or they use the pooling and servicing agreement.

The named plaintiff or beneficiary in a foreclosure is usually named as a bank not on its own behalf but as trustee of a named trust which may or may not exist. But neither the bank nor the trust maintains any accounting records reflecting ownership of assets consisting of obligations of homeowners.

In plain language, this means that the Foreclosure mill is making allegations, assertions and argument regarding the existence and identity of a creditor owning the alleged obligation of the homeowner, but there is no testimony, exhibit or any evidence that those assertions are true. Pressed further, the inevitable conclusion is that they are not true.

Therefore the appointment of a company that is self-described as a “servicer” is irrelevant to any case in which a party is seeking Foreclosure. In plain language, the agent has no more power than the principal.

The announcement by the CFPB has Biden’s fingerprints all over it. His style is very underplayed and incremental.

You could easily read the announcement as simply the intention to examine the business of companies that are described as FINTECH. The CFPB is saying that they are not simply technology companies.

The CFPB is saying they are servicers — this puts the CFPB in direct conflict with all claims made on behalf of companies who are named as “servicers” but who perform no servicing functions in connection with the receipt, processing and accounting, and distribution of proceeds to any creditor.

When you think about what that might mean and what we already know, the outcome of that investigation and monitoring will be an administrative finding that the real servicer has not been disclosed, and that the companies who are named as servicers have no relevant business records, because they never received any payments nor made any distributions.

There is no possibility that the investigation will not lead to a question about how the FINTECH servicers are working and for whom they are doing this work.

This is a pivotal point. If the real servicers are simply contractual agents of the designated companies who are named as services, it would strengthen the position of the investment banks. But I know that the real servicers (FINTECH) are working for the investment banks, and not the bank named as trustee for a REMIC trust — nor the company named as “servicer.”

This will all lead to the inevitable conclusion that no company is actually performing servicing in the conventional sense. None of them are collecting money from homeowners and then distributing the payments to creditors. That is because of one fatal flaw and the business plan of the Wall Street securities firms. They eliminated the role of “creditor” or “successor lender” but they kept the labels.

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Nobody paid me to write this. I am self-funded, supported only by donations. My mission is to stop foreclosures and other collection efforts against homeowners and consumers without proof of loss. If you want to support this effort please click on this link and donate as much as you feel you can afford.Please Donate to Support Neil Garfield’s Efforts to Stop Foreclosure Fraud.
CLICK TO DONATENeil F Garfield, MBA, JD, 75, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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Filed under: boarding process, burden of pleading, BURDEN OF PROOF, CORRUPTION, discovery, Discovery -Subpoena, evidence, Fabrication of documents, foreclosure, jurisdiction, legal standing, Servicer, sham transactions | Tagged: CFPB | 2 Comments »

How Bias Works Against Justice in Foreclosure Litigation

Posted on April 29, 2022 by Neil Garfield

If one takes a neutral view there is an inescapable and undeniable conclusion: millions of homes have been forced to sale, depriving the owners of property and money, and causing untold damage to families and careers without the court knowing to a reasonable degree of certainty that the loan account even exists.

Scott Staffne and I have been in discussion about court bias. He is advancing the cause in one pending case.

The basic thrust of the argument is that judges have their retirement and their personal investments at stake in every case that questions the reality, integrity, or assumptions arising from a financial innovation (MBS) about which judges know absolutely nothing. In place of knowledge, they use assumptions and presumptions arising from fabricated documents containing false information that are forged by robosigning.

Even the promissory notes are routinely destroyed and then re-created using the miracles of modern technology. Allowance for such actions means that anyone with a computer and printer can fabricate the base documents for any claim. That is the direction of the courts today.

It turns out that in certain states the retirement of judges is funded and guaranteed with taxpayer money so there are at least some judges, theoretically, who have no MBS bias.

So here is what I wrote to Scott regarding this entire mess:

I see what you are saying about the taxpayer guarantee — but knowing as many judges as I do (personally), I wonder how many of them understand that or even think about it. In short, I wonder if they are thinking the way we are saying even though the MBS issue doesn’t affect them — or maybe it does in their personal investments.

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I think it might be a task too large to prove the points I raised. But the reverse is possible and directly in line with what you are asserting in your brief. The neutral point of view would be that there must be a justiciable issue before the court which is universally defined as two or more parties in conflict about legal rights.

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In order for the justiciable issue to be presented in foreclosure cases, there should be a pleading requirement — given all the excesses and abuses that are revealed in settlements with Federal and state AGs — that

(1) requires the complaint to be signed under oath not by a servicer but by an officer of the bank that supposedly is a trustee of an alleged trust that is the plaintiff or beneficiary under a deed of trust,

(2) contains specific language warrantees title to the underlying obligation, legal debt, note, and mortgage,

(3) asserts an economic loss caused by its failure to receive payments from the homeowner that it had otherwise been receiving and

(4) acknowledging a specific servicing agreement, which should be attached, naming the currently named servicer to act and to specify the acts that are both authorized and performed.

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I also think that a certification from the company that is claimed to be a”servicer” that it received and disbursed money from the homeowner would end all foreclosure litigation. they don’t and their “records are merely an aggregation of data from third parties including unknown third parties.

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These FINTECH companies, effective yesterday are now being viewed as the real servicers by the CFPB. They are the ones receiving payments and they are the ones recording the receipt. So the Payment history” offered by the fake “servicer” is not a business record in the sense that it is not a record of business done or even managed by the “servicer.” it is inadmissible hearsay. And that means no case.

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But when homeowners raise any of those issues, usually inartfully, they are swept aside in a manner that is completely inconsistent with the customs and practice of judges thirty years ago — i.e., scrutinizing the document and asking the right questions even if the homeowner did not show up.

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A neutral judge would allow the homeowner to demand proof that the loan account exists and that the named plaintiff or beneficiary is the owner of it by virtue of having paid value for it. A neutral judge would automatically insist that the named plaintiff or beneficiary appear at least once by testimony or affidavit.

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A neutral judge keeps the burden of proof squarely on the claimant until the prima facie case is made. A neutral judge would not apply presumptions of fact drawn from documents whose source is a series of companies that admittedly fabricated millions of such documents containing false information — at least not without some corroboration (i.e., proof of payment for the loan account).

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Instead, the courts have swung the other way. And the use of nonjudicial foreclosure is an extreme example of what happens even in judicial foreclosures. Contrary to constitutional requirements, the homeowner must first produce evidence of a negative the nonexistence of the loan account — without any access to the records, data, and ledgers that would prove that.

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If one takes a neutral view there is an inescapable and undeniable conclusion: millions of homes have been forced to sale, depriving the owners of property and money, and causing untold damage to families and careers without the court knowing to a reasonable degree of certainty that the loan account even exists.

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I admit that many homeowners have cooked their own goose by referring to the existence of the loan account and accepting the status of the alleged servicer. But many people did not. And in any event the court should be careful before the property is allowed to be foreclosed.

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The courts have taken the view that it doesn’t;t matter whether the proceeds of foreclosure are paid to or on behalf of the named plaintiff or beneficiary. what matters only is if the homeowner owes the money. And the homeowner MUST owe the money because they signed loan papers including a promissory note.

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Thus was borne the court doctrine contrary to the statute and the constitution that says that anyone can enforce a claim as long as someone else doesn’t also make the same claim during the same time period. It doesn’t matter if the claim is valid, meritorious or just a scheme to generate more cash.

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They have swung that way, only in the niche of foreclosures, because of their fear and bias regarding a financial innovation to raise capital about which the judges know nothing. They assume from the outset that the claim is real. And that is the sole basis for failure to enforce discovery and pleading requirements. Whether conscious or unconscious, judges are rewriting the statutory laws and the state and federal constitutions.

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Living Truth: CFPB Moving Against FINTECH Companies

Posted on April 27, 2022 by Neil Garfield

It’s time to give a thumbs up to the agency that has up till now befuddled homeowners. The absence of regulation of nonbank FINTECH companies has been a giant loophole through which wealth was converted from homeowners to investment banks.

I am pleasantly surprised by an announcement from the CFPB that will start monitoring and investigating these companies like Black Knight, Fiserv and CoreLogic — i.e., the REAL servicers who are involved in the collection of money that nobody is entitled to receive.

Here is part of the CFPB announcement:

WASHINGTON, D.C. – The Consumer Financial Protection Bureau (CFPB) announced that it is invoking a largely unused legal provision to examine nonbank financial companies that pose risks to consumers. The CFPB believes that utilizing this dormant authority will help protect consumers and level the playing field between banks and nonbanks. The CFPB is also seeking public comments on a procedural rule to make this process more transparent.

Under the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, the CFPB has authority to use traditional law enforcement to stop companies from engaging in conduct that pose risk to consumers; this can involve adversarial litigation. However, the law also gives the CFPB authority to conduct supervisory examinations to review the books and records of regulated entities. CFPB examiners typically provide a report to entities with problems that need to be addressed, and responsible institutions typically take prompt corrective action.

For decades before the Dodd-Frank Act, only banks and credit unions were subject to federal supervision. But after the 2008 financial crisis in which nonbank companies played a pivotal role, Congress tasked the CFPB with supervising certain nonbanks, in addition to large depository institutions with more than $10 billion in assets, and their service providers. Nonbanks do not have a bank, thrift, or credit union charter; many today operate nationally and brand themselves as “fintechs.”

Filed under: foreclosure | 6 Comments »

When the homeowners loses in the trial court what are the options?

Posted on April 26, 2022 by Neil Garfield

Foreclosure litigation is a very special type of case. Normal rules of limitation and basic requirements of proof have been softened in favor of giving lawyers the opportunity of saying they represent a Bank that is the trustee of a trust. Those lawyers don’t need to assert that the trust owns any underlying obligation owed by the homeowner to the named Bank as trustee. It is all implied. And they never are required to show proof of authority to represent the bank. In fact, they have no contact with the bank.

The virtually unanimous court doctrine in foreclosure cases is that the courts can be used as a shield against liability for illegal conduct. So this creates several different layers of litigation depending upon when the foreclosure defense lawyer picks up the case.

An appeal is always an attractive opportunity for the layperson but lawyers know that (a) the appeal won’t stop the sale of the property unless the court issues a stay and (b) the odds of achieving any result that could be categorized as successful in the appeal of a foreclosure action are about 200:1 at best.

Your next question is like a double-edged sword. On the one hand, the courts have treated the subject of wrongful foreclosure as not maturing until the Foreclosure case is complete. On the other hand, there is court doctrine that presumes the validity of all preceding orders arising from prior litigation — but only if they were favorable to the foreclosure mills.

This comes partly from the doctrine of finality which is an important doctrine from the standpoint of bringing disputes to a close and partly from the mistaken widespread belief that disallowing foreclosures would destroy the sanctity of contracts that courts are sworn to uphold.

So that is why I am always conflicted when guiding people into or out of litigation. Yes, I believe that all these foreclosures are scams and that the opposition would be unable to prove the basic elements of their claim if put to the test. But starting out — particularly when the case ruling is against the homeowner —- is daunting.

Yet I believe that anyone with the resources to attack this scam at the trial level will most likely (3:1 odds) win. The odds get worse after an actual judgment is entered against the homeowner. But they get better when you add newly named parties discovered by forensic investigations. And the odds become very good when you get to the point where you are pressing for orders compelling responses to discovery demands.

I have only seen a few cases in which homeowners were able to do it on their own and those were cases from 10-12 years ago. I’m speaking here in terms of actually getting a judgment or settlement that consists of real value to the homeowner — reducing or eliminating the debt, payment of damages and attorney fees, court costs etc.

The successful cases (i.e., cases in which the homeowner received substantial relief or value) have the following attributes:

They are buried and even scrubbed under both confidentiality (NDA) agreements and court-ordered expunging of the record
The homeowner was represented by aggressive trial counsel who had internalized the belief that the case was winnable.
Discovery demands were made and pursued.
Motion practice was aggressively employed.
The opposition had been shoved into a corner where they had no answer that wouldn’t put them in jail or under administrative procedures removing their charter or license.

So my short answer is that homeowners who start early, perhaps before any foreclosure is initiated, are the ones most likely to get a favorable outcome.

After the case is over and the judgment is against the homeowner, the odds are daunting. But a well-conceived complaint that is specific in its allegations that form the basis of a cause of action upon which relief could be granted is likely to survive a motion to dismiss or demurrer. Once you get past that milestone your chances are vastly improved.

There are some early strategies and tactics that I outlined on my show 2 weeks ago. But it is too early to say if they will be successful. I have started using them and we’ll see what happens.

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JURISDICTIONAL CHALLENGES MUST NOT BE AIMED AT THE MERITS OF THE CLAIM

Posted on April 25, 2022 by Neil Garfield

“Jurisdiction” is a term used to define whether or not the court has any authority to hear the case. Filing a bogus claim DOES invoke the jurisdiction of the court as long as it complies with the basic rules of court.

Just because you call it a jurisdictional challenge doesn’t make it a jurisdictional challenge. The jurisdiction of the court is based upon several factors, each of which must be challenged in a specific and orderly way. You are citing evidentiary things that can only mean the judge would at best reserve a ruling until the evidence is in.

JURISDICTIONAL CHALLENGES MUST NOT BE AIMED AT THE MERITS OF THE CLAIM

The challenge must arise from the face of what is written in the complaint or in the exhibits. Or, it must arise from the presumptions in nonjudicial states based upon the recorded documentation.
1. The usual XYZ Bank NA as trustee for the ABCDE Trust Series 2006-BC6 on behalf of the holders of the certificate series ABCDE Trust Series 2006-BC6 presents exactly that opportunity. XYZ Bank is not submitting itself to the jurisdiction of the court and neither is the putative trust even if it exists. (Both are named as acting on behalf of unidentified certificate holders).
  1. We know that because regardless of how many entities are framed in the style of the case, it is all on behalf of unidentified holders of certificates who have not been named. So you have no named Plaintiff submitting themselves to the jurisdiction of the court and therefore no case in controversy.
    1. A free-style test of this is easy: in the event that the homeowner wins and fees and costs are leveled against the claimant, who is responsible for paying those fees and costs.? It isn’t XYZ Bank. It might be the trust if it is properly identified and it certainly is not the certificate holders who have never been named.
    2. But how do you levy the judgment against anyone? Such judgments are routinely paid by or through the company named as the “servicer” — but the claimed servicer is not even a party to the litigation. But what if it isn’t paid? That actually happens sometimes.
  2. If the Style of the case is XYZ Bank NA as trustee for the ABCDE Trust Series 2006-BC6 AND there is an allegation that the Plaintiff is a National Association, that is technically not true.
    1. The plaintiff is the putative trust. This is an important distinction.
    2. The trust is not a National Association (i.e. a nationally chartered bank) and the allegations in the complaint are missing the required components of a statement of how and where the trust was organized — which might be subject to a motion to dismiss or a motion to dismiss for lack of jurisdiction.

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

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How to use your knowledge of securitization to win foreclosure and quiet title cases

Posted on April 22, 2022 by Neil Garfield

In an effort to show the relevancy of securitization in the collection businesses established with each new transaction with homeowners, I have had some discussions about the usefulness of knowing who has access to funds paid by homeowners and who gets paid any money as a creditor of the homeowner.

In our example here the servicer is Ocwen, but it could be any one of a dozen or more companies that are named as “servicers but who do not receive payments nor distribute money to investors or creditors.

Homeowner payments by check are sent to a PO Box that is in the control of a lockbox provider like FiServ or a depository bank providing lockbox services through a FINTECH company (frequently Wells Fargo).
- The box is not owned by Ocwen but Ocwen is named as a DBA for the party that owns and controls the box.
- Ocwen neither deposits the money nor can it access the money.
- Its records showing payments and payment history are based upon reports FROM Fiserv who is operating under contract not with Ocwen but with an intermediary for the investment bank bookrunner.
- Testimony from an Ocwen representative is hearsay on hearsay. It is excludable from evidence if a timely and proper objection is raised.
Homeowner electronic (EFT) payments (ACH, auto withdrawal etc.) are directed to an account owned and operated by the FINTECH company just like the paper check payments. The account is owned by Fiserv and maybe CoreLogic dba Ocwen.
- Ocwen neither deposits the money nor can it access the money.
- Its records showing payments and payment history are based upon reports FROM Fiserv who is operating under contract not with Ocwen but with an intermediary for the investment bank bookrunner.
- Testimony from an Ocwen representative is hearsay on hearsay.
Homeowner correspondence and legal notices (QWR, DVL etc) are directed to another PO BOX that is owned and controlled by a FINTECH company running algorithms based on artificial intelligence producing stock answers to every letter. Once again this company is dba Ocwen. Things that don’t fit within the knowledge or programming of the server processing correspondence and notices are discarded.
- No human hands or minds are involved in the receipt or processing of correspondence or notices from the homeowner.
- Generally, no signature is attached to any of the correspondence, notices, or statements sent out under the Ocwen letterhead.
- Ocwen knows nothing until foreclosure is initiated at which point Ocwen receives instructions and access to a limited set of data prepared for use in court by a FINTECH company who may or may not be the FINteCH who received and processed incoming homeowner payments.

The importance of all of this is that under the rules of civil procedure and the laws governing the definition of evidence Ocwen is irrelevant if it is not receiving the payments, processing them, and inputting data into an accounting ledger reflecting their receipt of the funds.

Unless an officer of the FINTECH company testifies that they processed the transaction, noted the receipt of payment, and produced a report for publication by Ocwen, there is (a) a lack of foundation to Ocwen representative’s testimony and (b) a very clear path to excluding Ocwen robowitness testimony without which no exhibit can be introduced.

There are two ways of attacking this. One is to issue a subpoena duces tecum to the FINTECH company and the other is to have the information already in hand. Caution: the FINTECH company gets very touchy when they are contacted directly by a homeowner.

But best practices in litigation would be to issue the subpoena while at the same time the lawyer is compiling evidence of who is performing what function — and therefore who could produce a business record showing what functions they performed.

The indemnification agreements between the servicers, FINTECH, and other vendors on the one hand, and the investment bank bookrunner on the other hand expressly state that nobody needs to get involved including but not limited to the servicer (e.g. Ocwen), the REMIC Trustee and the FINTECH company. FINTECH will not get involved in testimony or the introduction of exhibits as evidence.

If we can show that the named servicer is not receiving the funds, not disbursing the funds, and not processing funds then we can bar any “business record” as excludable under the hearsay rule even if the information on it is true. Barring the testimony of the robowitness forces the issue.

The result is

voluntary dismissal without prejudice.
An involuntary dismissal with prejudice
Judgment entered for the Homeowner.

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Homeowner Beliefs and Fears Drive Losses in Court

Posted on April 20, 2022 by Neil Garfield

There is no “YES”.

There are many people who get angry with me for ascribing some blame to the homeowners themselves for the toxic economic environment and the judicial environment resulting in the victimization of homeowners.

Some argue that “I tried that and it didn’t work.” The fact is that none of them are lawyers and none of them truly understood the securitization fallacies that we all deal with day after day. And no pro se litigant is a master of the rules of court, evidence, or procedure.

So here is my response:

A loss in a foreclosure case is not the fault of the homeowner nor is it a basis for asserting that justice was served. You are right that it is not the fault of the homeowner to have a lack of knowledge of the complicated intersection of law and finance. And you are also correct that ignorance of the rules of court is not the fault of people who go to court.

And most lawyers are in the same boat — no knowledge of finance which usually reduces the defense narrative to rubbish. And Judges are all lawyers, so the same thing applies.

But you are right when you get from my writing that homeowners share the blame for what happened and what is still happening.

The main point of this discussion is the ability and willingness to pay a good lawyer the fees required to do ALL of the work necessary. Homeowners all cry poverty when they are looking for a lawyer. They have already reduced their goals and expectations, to wit: instead of being in it to win it, they only want delay or settlement. So the value they put on a lawyer’s services are also diminished.

So the willingness of the homeowner to plunge into litigation that could turn out to be “expensive” results in retainer agreements with lawyers who are NOT paid to do all the investigation and research to narrow and sharpen the tip of the spear.

And the lawyer does not do the investigation and research and analysis. Such lawyers go to court with diminished expectations and without a strategic plan or tactical plan. The die is cast for nearly all such cases the moment that the issues are joined.

Everyone, including the homeowner themselves, believes that the transaction as a loan, it still exists and that the named “servicer” is performing servicing functions for a bona fide creditor. They admit to those presumptions directly or indirectly by referring to entities by the descriptive term used by the banks — all for the purpose of misleading the homeowner, the lawyer, and the court.

So the lawyer for the homeowner goes to court with no reasonable desire to win, a fact that is not lost on the judge who is simply playing the game of the appearance of due process. Homeowners will almost always slip up (and so does the lawyer) by calling the transaction a loan, by referring to the correspondent as a servicer, and by referring to the claimant as a bank.

This is not a philosophical discussion of what should be done. I deal with real-world realities. People challenge me all the time by pointing to cases where the homeowner lost. Did he or she ever think they deserved to win — or did they think that it would be great if they somehow escaped enforcement? The difference between losing and winning is in the intent of the homeowner and the lawyer.

The proof of the pudding is that the house, if it was free from any encumbrance, would represent a major asset that could be sold, thus providing a basis for a better lifestyle or retirement. But there is virtually no homeowner that I have ever spoken with who thinks that is a viable option. So they aim far lower and that is what they get — low results. In their hearts, homeowners believe that the loan is real because that is what they asked for and that is how it looked at “Closing.”

So they will admit and concede facts that are not true. The defense narrative in that scenario becomes “yes, but.” There is no “but”. If you have a legitimate debt owed to a creditor who is losing money because of your failure to make a payment, there is no “but.” But if you find that that there is no loan account and there is nothing to legally enforce, there is no “yes.”

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MERS and the problem of false agency

Posted on April 19, 2022 by Neil Garfield

Since the beginning of this century, The initial transaction with homeowners was the product of multiple layers of paperwork, most of which were neither identified nor accessed by consumers or their professional advisers.

Here is the deal:

As was typical during the “securitization” era, the application for a loan is received as the commencement of the transaction. It is not the “closing.”

From your perspective, you asked for a loan, and you were given false paperwork for you to read and sign. From the perspective of the disclosed counterparty to your transaction, the originator was merely paid a fee for the service of selling the transaction to you as a “loan.”

The funding for your transaction is an elaborate scheme unto itself. Once the paperwork is completed by the investment bank, the investment bank borrows the amount of money needed to pay homeowners at or near the time of closing. There is frequently a waiting period after what the homeowners perceive as a loan closing. This is the final check to make sure that there are not multiple entities named as Plaintiffs or beneficiaries on mortgages and deeds of trust respectively.

The loan from, for example, Credit Suisse, is collateralized by the impending sale of certificates to investors. The certificates do NOT represent any status as beneficiaries of a trust nor any status as a creditor to whom the homeowners ‘payments set forth on the homeowners’ note are payable.

Payments of money to the investors are discretionary but they usually are made by the investment bank regardless of whether or not any homeowner makes a scheduled payment on the schedule described in the promissory note issued by the homeowner. Investors were sold and contractually accepted the idea that they and no right, title or interest to any homeowner payment, legal debt, underlying obligation, note, or mortgage (or deed of trust).

So investors are paid not by homeowners but by various undisclosed intermediaries who have access to the funds paid by homeowners and access the funds generated by sales of certificates that are frequently mislabeled as Mortgage-Backed Securities. The fact the payments are frequently made as “Servicer advances” (as though the money came from companies who were named as “servicers” is the foundation for framing this deal — taken as a whole — as at least part of the PONZI scheme.

The sale of the certificates pays back the loan to Credit Suisse, plus a fairly large (e.g. 30%) profit partly directly arising from a yield spread premium (the difference between the amount of money paid by investors for unsecured IOUs from the investment bank and the amount paid to homeowners. Additional money is generated as the proceeds or revenue of either sale of the additional derivatives securities created and issued by the investment bank.

The problem for laypeople or even lawyers is that there is a choice between whether to analyze your transaction from the perspective of what you were seeking or whether to analyze the group of transactions from the perspective of the securitization scheme, without which there would have been no homeowner transaction. The consensus in the media and courtrooms is to simply analyze the transaction from the perspective of what the consumer wanted when he or she applied for a loan, regardless of where that is an accurate description of the transaction.

Contemporaneously with the origination of the transaction, several things are happening. In broad strokes, they are divided into the money trail and the paper trail. In the paper trail, none of the documents correctly identify or describe a transaction much less “memorialize” any transaction. Because everyone has received all the money they intended from participation in the “securitization” scheme the essential ingredient of a loan account receivable is eliminated thereby making nobody the “lender.”

Simply stated, since there isn’t anyone who maintains any record on the accounting ledger of an account receivable owed by you, there is no creditor. Nonetheless, in order for the securitization scheme to work (justifying more sales of certificates and other derivatives to investors), it must appear as though (a) an underlying obligation is created, owed to a specifically named lender and (b) that it has been transferred to a named business entity with caveats on the sale — namely that there is no warranty of title to the claims against homeowners.

When the origination cycle is complete, the status of the transaction is that there is no counterparty who has a stake in the viability or success of that transaction because nobody loses money if the homeowner does not make a scheduled payment — one that I maintain is simply not due to anyone. The absence of a lender — and all that entails under law — means there is no loan. The finance side of the transaction knows this but sets out to create a false paper trail to make it seem like “this is a standard mortgage loan” or ” this is standard foreclosure action.”

The financial community in coordination with lawyers willing to play the “game” used strategies and tactics to not only make it appear that the transaction was a loan but to actually have the court presume that the transaction was a loan and that the complaining party has hired counsel to seek a remedy. The status of such claims is always this: there is no obligation, loan account, or other claims for money allegedly due from the homeowner.

The primary tactic utilized by the financial community is the volume of paperwork. the thicker the pile of paperwork the more likely it is that a layperson sitting on the bench, will conclude that the transaction was real as a “loan.” And that is why we witnessed the birth of a major industry — creating false, fabricated, backdated documentation making it appear that several brand name institutions were trading, purchasing, and selling the “loans”. In reality, no such transactions existed, but the paperwork said the t transactions had occurred.

Considerable effort and coordination were devised by the financial sector to mislead the court system and they did so successfully in most cases. But even a casual look at your chain of title for the mortgage or deed of trust reveals inconsistencies in the paperwork especially when one realizes that the signature block one each document is on behalf of entities that (a) don’t exist at all, (b) exist but are irrelevant to the transaction and (c) are unclear from the face of the document.

Your case is almost certainly closely aligned with the typical playbook of strategies and tactics. Examining the document assignment of mortgage you find what is typical:

No consideration. the law requires that value be paid by the claimant before it can file suit to enforce the claim. But that law does not impact the ability of the foreclosure players to make false claims of authority to administer, collect or enforce in correspondence, notices, and statements.
“Corrective instruments” that correct nothing in order to establish more paper volume.
Execution of assignment by a business entity that has no right, title or interest in the alleged obligation. For example, MERS is used to launder titles.
1. People from FINTECH companies regularly access the main servers that are maintained by MERS for the sole purpose of getting themselves automatically appointed, without board resolution, as an officer of MERS.
2. MERS always is described as the nominee for the specifically named “lender” who is just an originator selling a financial product as described above. MERS is used as a cover-up. It effectively hides the title gap in plain sight.
3. The execution of an assignment or corrective assignment presumes that it is acting as an agent for whoever is currently named as the current claimant, beneficiary, or Plaintiff. But no such agency exists in fact or at law.
4. The execution of a security instrument (mortgage or loan) by a self-proclaimed “servicer” (which performs no servicing duties with respect to receipts data processing and disbursement of money from homeowners) on behalf of a new entity appointed to be the claimant, beneficiary or Plaintiff. But the execution of the assignment by MERS on behalf of Countrywide after the collapse of countrywide. it does not exist.
  1. And Bank of America did not acquire any ownership interest in any homeowner transactions because countrywide didn’t own any such interest.
  2. So while Bank of America was a successor to Countrywide, the foreclosure team is relying on appearances — in order to get the court to presume that the merger created a transfer of the ownership of the unpaid nonexistent loan account receivable of the mortgage rights from Countrywide as originator to Bank of America.
  3. In such mergers, there is no Mortgage Loan Schedule, nor any written assignment of mortgage. Since the law requires the assignment, the presumption that the transfer could occur without an assignment of mortgage is erroneous. But that fact will not stop foreclosure unless it is aggressively contested.
5. The document is supposedly executed by someone calling themselves an “assistant secretary.” But note that it does not say that the signor was the assistant sectary of MERS.
6. Every time there is mention of MERS it includes the phrase “its successors and assigns” such that it is unclear from the grammar utilized whether there is a successor to MERS or a successor for the principal in the agency agreement between MERS and the originator (Countrywide in this scenario).
7. But there is no succession to either one unless (a) someone bought or merged with MERS or (b) someone bought loan accounts receivable from Countrywide. Such a sale would’ve been impossible because, by the time of the merger, Countrywide had only reserved “servicing rights” which really only meant the claim to receive “servicer advances” upon liquidation of a foreclosed property. So there is no MERS successor and there is no Countrywide successor as it relates to either the actual pr presumed transfer of the alleged underlying obligation.
8. Any endorsements are undated. Under current law, this means that parole evidence must be offered to prove that the promissory note was transferred and delivered to the party named as claimant, beneficiary, or Plaintiff.
9. Documents requiring the signature of the homeowner are in most cases completely fabricated even if the homeowner did sign similar documents. This has been sued to change the fact relevant to execution and delivery of the promissory note that in approximately 95% of all cases is destroyed within days of the time of closing that transaction with the homeowner.
  1. This becomes clearer when the homeowner is able to lay hands on the original note at least as an original, and when the original note contains coloration of signature or other marks that do not appear on the refabricated note made by electronic manipulation of images.
10. The foreclosure mill will often utilize such fabricated documents even when they contain glaring facially invalid errors. For example, where a parent was the owner of the property and signed the “mortgage” paperwork, the instructions received by the law firm are turned into correspondence, notes, statements, and pleadings that reflect the grantors under a deed of trust or the mortgagors under a mortgage instrument become the heirs or successors to liability under the note.

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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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Please visit www.lendinglies.com for more information.

Filed under: foreclosure | 2 Comments »

Don’t wait until the end: Interlocutory appeals succeed where the issues are narrow

Posted on April 15, 2022 by Neil Garfield

Aggressive litigation means basically that the lawyer or pro se litigant uses every tool in the box to force the opposition onto its heels or out of the courtroom. Each state has its own rules and laws governing interlocutory appeals. Those are appeals that take place before the case is over. And as I said last night on the Neil Garfield Show, the name of the game in foreclosure defense is kicking your opposition out of the courtroom as early as possible — before getting mired down in a prolonged war.

In general, interlocutory appeals are allowed when the trial or BKR judge makes a decision that essentially negates a large part of the case for reasons that are clearly erroneous. You must be specific in both the issue you are appealing and your argument or reasons for bringing this as an interlocutory appeal instead of waiting for the end of the case.

You should always look for ways to terminate the case early because it is the difference between night and day. A case that ends early could involve only a few thousand dollars and a few months’ time. A case that ends up in a long-term war and costs tens of thousands of dollars. Homeowners must be prepared to pay for the work that needs to be done — not merely expect it because they paid a $500 retainer. This work will cost no less than $7500 with any reasonably competent local attorney — even with assistance from my office.

One of the interesting facts that make tactical decision-making so important is that there is a statistical anomaly between the normal appellate process and the interlocutory appellate process. For one thing, they nearly always produce an early result. For another, particularly in the Federal Bankruptcy Court, the statistics show a much higher rate of success when the appeal is made to the Federal District judge instead of the BAP or the Circuit appellate court.

Here is a recent analysis I transmitted to a prospective client:

I MIGHT be able to help. If the order of denial was recent and you have a record you might want to consider an appeal. In your case it could be an immediate appeal. It is called an interlocutory appeal.

There are three avenues for appeal.

(1) Appeal to Federal Circuit Appellate court where the likelihood of success is virtually zero.

(2) Appeal to Bankruptcy Appellate Panel, where chances are somewhat improved. and

(3) appeal to Federal District Judge in the same court where the bankruptcy court made the wrong ruling. Statistics show that many bankruptcy judges agree that the chances of success are around 50% which vastly exceed successful appeals in all other cases.

People do not realize that BKR judges have limited jurisdiction and it might well be that the BKR judge went beyond her authority when she ruled against you. But in all events, if she was clearly wrong then you have the conventional reasons to appeal. And District Court judges are generally happy to assert themselves over the “lesser” BKR judges who at one time (when I started practicing) were not even considered judges.

I can review the situation if you want. I won’t appear as an attorney of record but I can write everything and prepare you for an oral argument in front of the Federal District Court judge if an appearance is necessary.

You will need to send me all relevant documents to this specific issue. That includes a screenshot of the docket from the beginning of the BKR proceeding. I will review them, order a new title search with copies of all relevant documents, and then set up a telephone conference with you. This is called the Click Here for Preliminary Document Review (PDR) [Basic, Plus, Premium). Generally speaking in roder for me to get brought up to speed you shoudl select the PREMIUM.

When we have the CONSULT we will decide on next steps. If it is the appeal I can draft all necessary documents but you should have local bankruptcy counsel advising you. This would be a limited retainer for which I would bill you $4500. That would cover all expenses and fees unless the judge orders me to appear. You must disclose where you are getting help.

If we go to a retainer, then I will send you a retainer agreement and upon execution, I will bill you through PayPal and upon receipt of payment I will commence work. The retainer fee can be s[rpead out over 60 days in three payments of $2500, $1,000 and $1,000.

Note that I am estimating fees not quoting them — and the fees paid to GTC Honors, Inc are in addition to the fees paid to local counsel.

PRACTICE NOTE: because of the statistics there is an inherent tactical advantage if you seek protection under chapters 13, 11, or 7. An erroneous ruling that is subject to interlocutory appeal has a far higher chance of success than anything you might find in the state court processes.

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

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

FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE COMMENTS ON THIS BLOG AND ELSEWHERE ARE BASED ON THE ABILITY OF A HOMEOWNER TO WIN THE CASE NOT MERELY SETTLE IT. OTHER LAWYERS HAVE STRATEGIES DIRECTED AT SETTMENET OR MODIFICATION. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.

Yes you DO need a lawyer.
If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.

Please visit www.lendinglies.com for more information.

Filed under: foreclosure | Leave a comment »

Tonight! 6PM EDT Garfield Unveils Preemptive Attacks on False Claims for Debt Collection

Posted on April 14, 2022 by Neil Garfield

Thursdays LIVE! Click in to the Neil Garfield Show

Tonight’s Show Hosted by Neil Garfield, Esq.

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

Tonight I will share my thoughts on strategies and tactics that will likely put your opposition on its heels and probably result in an outright win for homeowners and virtually all consumers who have a written contract for installment payments. We start with the premise that virtually all such transactions are securitized.

For the past 16 years, I have published, chapter and verse, how the presumed debt is extinguished in the process of securitization, and I have enjoyed considerable success along with dozens of other lawyers who basically attacked the basic components of claims to administer, collect or enforce an alleged debt when it does not exist. In nutshell, there is no debt because none was intended by the counterparty to your agreement, who was not who you thought it was.

The basic mistake I made along with other lawyers was ignoring (or not capitalizing on) the many opportunities that exist under the rules of procedure to create an existential challenge to the claims.

Put simply, if there is no Claimant or Plaintiff and there is no claim at all, then why must we wait to the end and spend tens of thousands of dollars in legal fees to get to that point?

Or perhaps more to the point, why must homeowners lose their homes to such false claims simply because they lack the resources to contest them?

So in tonight’s show, we will visit and revisit some basic strategies that I believe will work most of the time and which could shorten the litigation period substantially.

LISTEN UP! THIS IS HOW HOMEOWNERS WIN! AND FOR THE FEINT-HEARTED IT IS HOW THEY SETTLE ON HIGHLY FAVORABLE TERMS.

Here is the Agenda:

Administrative: QWR and DVL, Complaint to CFPB and State AG
Motion to Dismiss and/or Motion for More Definite Statement
Offer of Judgment, Letter, and Notice of Service
AMGAR Strategy: Make them an offer they can’t refuse (but they will)
Motion to Strike Exhibits
Motion for specific mediation order requiring the claimant to appear through an officer employed by the claimant.
Interlocutory Appeals
Combined Request for Admission and Request for production
Motion to Compel Response
Motion for Sanctions and
Motion in Limine
Motion for Summary Judgment

Remember that in 28 minutes of talk time I can only give an overview of these strategies. And with rare exceptions don’t try to do this on your own. Yes, you DO need a lawyer who is licensed in the jurisdiction in which your property is located. There is no guarantee that any of these strategies will succeed, even if they have worked in the past. We provide assistance to local counsel.

Filed under: foreclosure | Leave a comment »

Candidates for Office and Lawyers for Consumers Are Missing the Brass Ring

Posted on April 13, 2022 by Neil Garfield

We need to elect candidates who run on an anti-bank platform. That means getting to them when they are just sorting out whether they will run or when they first start running. Any message that ties current day-to-day problems for citizens to the banks will resonate.

The problem is that the banks settle in quickly and start making contributions to avoid that run. But several candidates who have eschewed contributions from Wall Street did very well with soliciting campaign contributions from normal people. This requires at least limited access to prospective candidates. And you need to prepackage the message so they can just run on it.

COVID merely exposed a fundamental weakness in our economy. That weakness was caused by Wall Street securities firms. They drained out tens of trillions of dollars from U.S. wealth and the economy in general. And they are still doing it. Virtually all installment payment transactions are funded through securitization.

But securitization does not mean what is believed by the general consensus. If securitization meant that loans were divided up into parts that were sold to investors there would have been no 2008 Great Recession. Prices would not have sailed far above home values and loans would have been created that were properly underwritten in which appraisals, assessment of viability, and disclosures were all within the parameters required by Federal and State statutes.

That is not what happened. It takes a certain amount of financial sophistication to understand the basics of what did happen. Consumers thought they were getting a loan. They were wrong. A loan has two parties with a stake in the deal. That does not exist. A loan has a risk of loss on a normal common sense loan account receivable. That doesn’t exist either. In a loan transaction when someone stops paying, the other party loses money. That doesn’t happen.

The payment that homeowners (and all consumers) received at the “closing” was merely an incentive to issue the instruments that were used to issue unregulated securities to investors. Contemporaneously with each homeowner transaction, the role of the lender, loan account, risk of loss, and compliance with statutes was completely eliminated. Instead, an infrastructure emerged that was focused on the appearance of debt collection without any debt held by any creditor.

In Iceland, they took care of the problem by nationalizing the issue. They reduced all household debt by 25%. The problem was over. Their economy recovered in a few months. Ours has lingered on for more than 20 years. We also nationalized the issue by the takeover of the GSEs Fannie, Freddie etc. But that was to protect the perpetrators of the greatest scam in all human history.

All of this information can be put to good use by consumers who are receiving claims to administer, collect or enforce a debt that is claimed to exist on the books of some creditor. There is no debt and there is no creditor. By freeing up the process from being actually tied to ownership of any loan, the Wall Street securities firms were able to sell multiple iterations of various hypothetical interests in the performance of the transaction rather than the transaction itself. On average they made at least $12 for each $1 paid to consumers or on their behalf in installment contracts like those that were falsely labeled as loans.

Despite the complexity presented here, the message is simple. If there is no loan, debt, or underlying obligation, then the note and mortgage are evidence of nothing. *

Homeowners who follow that simple message typically win or settle their cases on highly favorable terms. Candidates who are running an antibank platform need only say that under their plan banks would be forced to settle on highly favorable terms. This would produce a much-needed stimulus of real cash into a real economy.

Up until now, litigation of false foreclosure claims has been arduous and expensive. Tomorrow night, on the Neil Garfield Show I will unveil some strategies and tactics that could end litigation early in favor of the consumer/homeowner.

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

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

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

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.

Yes you DO need a lawyer.
If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.

Please visit www.lendinglies.com for more information.

Filed under: foreclosure | 3 Comments »

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

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