foreclosure | Livinglies's Weblog

Bank of New York Mellon faces a reckoning from residential foreclosure cases in New York that date back to the subprime mortgage crisis.

Posted on January 21, 2020 by Neil Garfield

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

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

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

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

From the article

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

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

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

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

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

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

Filed under: CORRUPTION, discovery, Discovery -Subpoena, foreclosure, Free House, investment banking, Investor, legal standing, Servicer, sham transactions | Tagged: Anderson, Bank of New York Mellon, Bowman, Gill and Kadochnikov, Mark Anderson, McCabe, Shellpoint Mortgage Servicing, Shiryak, statute of limitations, Weisberg & Conway | 3 Comments »

Cancellation, Expungement, Reformation and Quiet Title

Posted on January 20, 2020 by Neil Garfield

It’s appealing in theory but not very productive.

Once upon a time cancellation or reformation of an instrument was at least somewhat possible. today the courts are not open to that approach. But that might be because it has not been presented properly. If you do get an order cancelling an instrument and it is recorded it is fairly easy to get the instrument either expunged or have the order of cancellation literally attached to the mortgage or deed of trust.

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Cancellation means to cancel the encumbrance completely, but it does not discharge the debt. To achieve this you would need to show that the mortgage or deed of trust should never have been recorded in the first place — and to show that the only thing I know of that could work is lack of consideration. Today as soon as judges hear that you received a loan, the fact that you say you got it from someone else who is NOT making a claim, is enough for them to rule against you.

But the less travelled road has a higher likelihood of being considered as being in good faith. If you petition the court to reform the encumbrance because you have evidence to plead that another identifiable party is the true creditor, AND that the originator was not working for that other party, then you can say that the encumbrance should be reformed to reflect the actual party who paid value for the debt. In the end this might not get you anywhere in terms of a verdict or judgment but if you are fortunate enough to have a judge that allows discovery, the possibilities increase that there will be a declaration of rights.

Quiet title can only be achieved against certain parties unless the encumbrance has been cancelled. This is more easily done in bankruptcy court where the claimant must file a proof of claim or the borrower submits one on behalf of the party claiming to be a creditor. In that sense the court simply issues a declaration that certain parties have no right to collect, process or enforce the debt, note or mortgage.

Filed under: foreclosure | 3 Comments »

$Billions$ in Welfare Go to Mega Banks Who Caused Financial Crisis

Posted on January 19, 2020 by Neil Garfield

JPMorgan Chase, the largest bank in the world, made $36.4 billion in 2019. That was the highest profit of any bank in world history. The news, reported Tuesday, sent the company’s stock up by 2 percent. In the fourth quarter of 2019, the company took in $8.5 billion, also a record, making it the tenth largest publicly traded company in the world, with a market cap of $437 billion.

JPMorgan Chase’s record profits were joined by “affiliate” Morgan Stanley, which also reported both record profits and record revenues for 2019, sending its stock price surging 6.6 percent on Thursday.

News of these record gains came as the six largest US banks revealed that they saved a combined $32 billion last year from President Donald Trump’s 2017 corporate tax cut. The tax windfall was up from 2018 for all but one of the banks. JPMorgan’s tax cut went from $3.7 billion in 2018 to $5 billion last year.

Two questions:

How much of that mostly untaxed profit came from illegal foreclosures in which it received directly or indirectly the money proceeds of forced sale of residential property without paying anyone who (a) had paid for the debt and who (b) therefore had any loss from the performance or nonperformance of any loan?

Even if everything the mega banks did was legal, why are they getting billions in corporate welfare while community banks get nothing except regulations that make their business more costly and less effective.

The big banks have a stranglehold on our government and our economy and virtually eliminated any meaningful competition from thousands of local and regional banks that could collectively or in smaller groups really compete.

All of the “services” of the larger banks can be duplicated by smaller banks but the smaller banks don’t have trillions of dollars stashed offshore to be repatriated as trading profits. They don’t get bailouts because they failed to do the one thing that the megabanks did: break the law. They can’t compete on loan rates because they don’t have the extra fees generated from stealing money from investors.

Filed under: foreclosure | 4 Comments »

Interesting NY Ruling Creates Some Unusual Questions About Bank of America and Countrywide.

Posted on January 17, 2020 by Neil Garfield

As I have previously stated the alleged merger of Bank of America with Countrywide is by no means a foregone conclusion, although lawyers invoke the merger as the basis for ownership and authority over loans. As between insurance companies and Bank of America the merger is referred to as de facto, which means that for all intents and purposes we are going to treat the merger as though it happened.

But the real story is not that simple and the assumption that the ownership (as opposed to the servicing) of any loans changed hands is just plain wrong.

The truth about Countrywide Home Loans (CHL) as I know it and as it is reported by CHL, Bank of America and others:

Countrywide was not a lender, although there were times that it did loan money to a select group of individuals.
Countrywide was an aggregator of data that was used as the basis of claiming securitization of loans.
Countrywide earned fees for posing as the lender in millions of loans and for “servicing” of the loans that were nearly all brokered by Countrywide.
Those loans were funded by securities brokerage firms (investment banks) through several conduits in which money appeared on the closing table from undisclosed sources.
When it went bust it had virtually no assets listed on any schedule that consisted of consumer loans using residential property as collateral.
Bank of America created Red Oak Merger Corp. which (a) merged with CHL and (b) changed its name to BAC Home Loans.
How, when and even whether BAC was ever absorbed by Bank of America is unclear from the financial statement issued by bank of America.
Bank of America claims, for some purposes, that is is a successor to CHL when it comes to enforcement of loans.
So the question is whether it really is a successor who would be liable for funding repurchase agreements on loans that were sold under false pretenses. Bank of America says no.
And it frequently cites in such suits with insurance carriers and investors that it is not actually the successor and that it never agreed to become one such that it could be liable for lending violations or securities violations in which CHL participated.
If the court agrees that Bank of America is not a successor to liabilities of CHL then it follows that its claim to being a “successor” to CHL is at least deserving of a footnote of not an outright denial based upon their own conduct.
If the court imposes liability on Bank of America as successor then the question still remains “successor to what?”

the court erred in failing to grant BAC’s motion to strike Ambac’s jury demand for its secondary-liability claim against BAC. Ambac is not entitled to a jury trial on its claims against BAC because the jury demand, regardless of whether or not it is disallowed by the contractual jury waiver, seeks more than “a judgment for a sum of money only” under CPLR 4101(1). It also seeks a declaration that BAC is Countrywide’s successor by virtue of a de facto merger, which would render BAC jointly liable for any unpaid “judgment for a sum of money” against Countrywide. This is an equitable remedy, which must be decided by a court.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: SEPTEMBER 17, 2019

Ambac Assurance Corp. v. Countrywide Home Loans Inc., 9461N, at *2 (N.Y. App. Div. 2019)

Filed under: foreclosure | Tagged: bac home loans, Bank of America, countrywide, RED OAK MERGER CORP | 4 Comments »

Tonight!2020 Overview and Roundup 6pm EST 3PM PST

Posted on January 16, 2020 by Neil Garfield

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

with Charles Marshall, Esq.

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

Foreclosure defense is getting more refined as an increasing number of lawyers and litigants are piecing together the true nature and deficiencies of securitization under current well-settled law.

Two facts remain in conflict: (1) foreclosure is legally impossible for a claimant who is not the owner of the debt by reason of having paid value for it (2) the courts have been inventing legal fictions to presume compliance with current law.

The situation is not unique. What is unique is that there is no effort to reform the law to allow securitization to proceed while at the same time protecting investors and borrowers as the real parties in interest. Until such changes are made the courts will be winking and nodding at fabricated documentation bearing no relation to the truth.

So many cases will continue to be won or settled favorably to homeowners in foreclosure for those who persist and are relentless in their pursuit of real evidence of ownership, fabrication, agency, the money trail and authority. It isn’t easy but it is happening with greater frequency than most people realize.

On today’s Show Charles Marshall will break out and break down an analysis of anticipated trends for 2020 in the following foreclosure-impacted litigation-related areas:

– Unlimited lawsuit litigation, with an emphasis on Plaintiff-borrower litigation in non-judicial foreclosure states like California;

– Appellate litigation in the foreclosure area, with a focus on the 9th Circuit and non-judicial foreclosure cases in the State Appellate Districts of California;

– Unlawful Detainer litigation, with a focus on California cases;

– Bankruptcy practice and litigation related to foreclosure issues;

– Novel and Cutting-edge approaches to the Foreclosure arena.

Filed under: foreclosure | 1 Comment »

FDCPA Claims Might Not Be Barred By Statute of Limitations

Posted on January 15, 2020 by Neil Garfield

Here is a powerful argument that SCOTUS acknowledged: nobody should benefit from their own fraudulent conduct. The FDCPA has a one year statute of limitations. And people have tried to litigate on the premise that the one year should run from the date of discovery not when the violation occurred. The courts have disagreed saying that if Congress wanted it to be the date of discovery it would have said so.

But if the date of discovery was delayed because of additional fraudulent conduct by the defendant then the courts, although always leaning heavily toward the banks, are left in a quandary. And SCOTUS acknowledged that issue and refused to rule directly on it because the consumer failed to preserve the issue on appeal — another example of how rules can lead to failure of you don’t follow them.

The wording of the opinion and the opinion of analysts strongly suggests that if you plead, with specificity, fraudulent representations and conduct that caused the delay your claim is not barred until one year after the discovery of the violation.

Note that his will not help people who discovered or “should have discovered” the violation more than one year before filing suit.

Note also that it is one thing to plead and another to prove. Fraud requires specific pleading and proof regarding detrimental reliance on the fraud and causation of damages. The damage under this part of the case would be that the consumer was unable to ascertain the violation and thus seek a remedy. Just using the word “fraud” is the surest ticket to failure.

see Fossano Article on Mondaq

See Rotkiske v. Klemm Rotkiske v. Klemm, No. 18-328 (U.S. Dec. 10, 2019)

Rotkiske v. Klemm, — S. Ct. — (2019) left open the question of whether a plaintiff can avoid the one-year statute of limitations by establishing that the delay in bringing the claim was the caused by the defendant’s fraudulent conduct. The answer to that question will have to await a case where the plaintiff properly preserves the argument on appeal. On a related note, the case reminds attorneys to ensure that they preserve all of their clients’ arguments at all stages of a case.

FDCPA violations could expose debt collectors to considerable damages and penalties, as well as legal costs and fees.

From the case:

Rotkiske argued for the application of a “discovery rule” to delay the beginning of the limitations period until the date that he knew or should have known of the alleged FDCPA violation. Relying on the statute’s plain language, the District Court rejected Rotkiske’s approach and dismissed the action. The Third Circuit affirmed. Held: Absent the application of an equitable doctrine, §1692k(d)’s statute of limitations begins to run when the alleged FDCPA violation occurs, not when the violation is discovered. Pp. 4-7.

Rotkiske v. Klemm, No. 18-328, at *1 (U.S. Dec. 10, 2019)

The Fair Debt Collection Practices Act (FDCPA) authorizes private civil actions against debt collectors who engage in certain prohibited practices. 91 Stat. 881, 15 U. S. C. §1692k(a). An action under the FDCPA may be brought “within one year from the date on which the violation occurs.” §1692k(d). This case requires us to determine when the FDCPA’s limitations period begins to run. We hold that, absent the application of an equitable doctrine, the statute of limitations in §1692k(d) begins to run on the date on which the alleged FDCPA violation occurs, not the date on which the violation is discovered.

Rotkiske v. Klemm, No. 18-328, at *3 (U.S. Dec. 10, 2019)

“Rotkiske’s amended complaint alleged that equitable tolling excused his otherwise untimely filing because Klemm purposely served process in a manner that ensured he would not receive service.” Rotkiske v. Klemm, No. 18-328, at *5 (U.S. Dec. 10, 2019)

This Court has noted the existence of decisions applying a discovery rule in “fraud cases” that is distinct from the traditional equitable tolling doctrine. Merck & Co. v. Reynolds, 559 U. S. 633, 644 (2010); Gabelli v. SEC, 568 U. S. 442, 450 (2013) (referring to the “fraud discovery rule”). And it has repeatedly characterized these decisions as applying an equity-based doctrine. California Public Employees’ Retirement System v. ANZ Securities, Inc., 582 U. S. ___, ___-___ (2017) (slip op., at 10-11); Lozano v. Montoya Alvarez, 572 U. S. 1, 10-11 (2014); Credit Suisse Securities (USA) LLC v. Simmonds, 566 U. S. 221, 226-227 (2012); Young v. United States, 535 U. S. 43, 49-50 (2002). Rotkiske failed to preserve this issue before the Third Circuit, 890 F. 3d, at 428, and failed to raise this issue in his petition for certiorari. Accordingly, Rotkiske cannot rely on this doctrine to excuse his otherwise untimely filing. (e.s.)

* * *

Rotkiske v. Klemm, No. 18-328, at *9 (U.S. Dec. 10, 2019)

Practice Note: I would suggest that practitioners take a close look at modifications as falling within two different doctrines and maybe more.

First, modification offer from one who is not authorized to make the offer is a violation of the FDCPA. The acceptance and enforcement of payments under a modification agreement might also be a violation of the FDCPA. It is procured under duress. It is a fraudulent misrepresentation designed to induce the borrower to waive defenses, change lenders (without realizing it) and essentially create an entirely new contract that may or may not incorporate the original note or mortgage.

Second, the modification has many earmarks of a new financing subject to disclosures required for the origination of any loan. It makes the “new” claimed servicer the lender or the agent of a lender who is not disclosed and who probably has no claim within the chain of title relied upon by the servicer when it made the offer to modify. AND it might well be that it reflects an actual payment in the case where the loan was securitized after a bona fide loan. AND it has entirely new terms with new principal, new interests and frequently a new term.

That sounds like a refinancing to me. If I am right, then the modification is subject to rescission, to wit: (1) 3 day TILA rescission, (2) 3 year TILA rescission and (3) common law rescission. In addition there are claims under RESPA and FDCPA that would appear to arise anew. The specific disclosures required are contained in Federal lending law (TILA) and state deceptive lending laws. ALl such laws are incorporated into contracts for lending by operation of law. So it is not only fraud it is a violation of statute.

The fraud in such situations is that an interloper falsely poses as a lender or agent of lender. The borrower is in financial emotional distress is induced to enter an agreement that the borrower reasonably believes is for (a) the benefit of the borrower and the (b) creditor who has paid for his debt and owns it — because that is the representation of the servicer who offered it. That is false. The borrower is injured because while seeking settlement or at least communication with the actual party who has paid for and owns his debt he was prevented from doing so and the borrower had no way of knowing that the servicer’s representations were untrue.

As always discovery is key to proving these allegations and without follow up motions to compel and motions for sanctions discovery won’t do you any good. They won’t answer because they can’t answer.

Filed under: burden of persuasion, burden of pleading, BURDEN OF PROOF, CASES, CORRUPTION, foreclosure, foreclosure defenses, forensic investigation, Pleading, prima facie case, Servicer | Tagged: FDCPA, statute of limitations | 9 Comments »

Repo Securities: Where is the value paid for the debt?

Posted on January 14, 2020 by Neil Garfield

Hidden far away from public view and mainstream media is an enormous fight over who should suffer what loss over the labyrinth of defaults in the “mortgage bonds” also known as “mortgage backed certificates.” Within this fight it is clear that current law is simply nonexistent and ineffectual in achieving a legal or just result. It is the investors and borrowers who are consistently left out in the cold.

The certificates are merely a promise to pay issued by a securities brokerage firm in the name of a trust. Those certificates promise periodic income to be paid to investors on behalf of the trust. The trust actually owns nothing and does no business and may even not exist at all under current law.

In the “repo” agreements the securities are subject to a requirement of buyback, to wit: if the payments that are promised in the certificates don’t materialize then the securities brokerage firm (in this case Bear Stearns) must buy them back. Insurance and other hedge products are issued to cover the risk of the repo or buyback. But they are payable to the securities brokerage firm (also known as investment bank).

The interesting zig and zag is that the securities brokerage firm can “declare” a “default” even if it is still making payments to investors. Under Goldman Sachs contracts this declaration is in the sole discretion of the securities brokerage firm and this is the model for other such insurance and hedge contracts. It triggers payments to the securities brokerage firm (investment bank) based upon a presumed decline in “value” of various attributes of the securities themselves, the loans upon which the securities are indexed (not not backed), interest rates, the value of collateral and other measures of value within the sole discretion of the securities brokerage firm.

This is how Goldman Sachs made a windfall profit in 2008. It had funded the origination and acquisition of loans using money advanced by investors for the purchase of these vague certificates. It never retained any risk of loss and the investors who had in substance paid value for the loans never acquired any right, title or interest in the loans. AIG, because Hank Paulson (Former CEO of Goldman Sachs) as Treasury Secretary through his entire career on the line to coerce a reluctant President Bush and Congress to bailout AIG who simply used the money to fund the insurance contracts with Goldman. Neither the investors nor the borrowers on the loans that were used as an index ever saw one penny of benefit from that insurance payout. In short it was the expectation of Goldman’s profit that was bailed out not any actual losses.

So the real question is whether these arrangements have any financial effect on anyone who is claiming the right to collect, process or enforce the loans that are claimed as part of the securitization scheme that produced the issuance of the certificates in the first place.

The answer appears to be in the negative because none of them were actually using their own money or credit to fund the origination or acquisition of the loans in the first place. Current law simply does not cover this situation so the banks are being allowed to make things up as they go along to the great detriment of both investors who were in substance the lenders and the borrowers who were in substance party to an undisclosed larger contract to issue and trade unregulated securities.

see 182887p In re Homebanc Mortg. Corp., 573 B.R. 495 (Bankr. D. Del. 2017)

If we really want to make meaningful changes in the way residential mortgage loans are funded, originated, acquired, collected, processed and enforced, there need to be changes in the law for every step of that process. Current law does not allow for unilateral appointment of a fictional creditor to be part of that scheme. While securitization of mortgage loans is perfectly sound finance in theory, there are basic and fundamental changes in the statutes that are needed to make securitization of such loans legal as practiced by Wall Street.

The assumption that this is capitalism and free markets will make the necessary corrections is false. Neither the investors nor the borrowers have received any meaningful disclosures upon which they can make decisions or bargain effectively for better asurances or better terms or both. Free Market forces are simply not present if the information is not freely available. Hence no correction of questionable practices can occur without statutory changes to the rules of disclosure and the rules of engagement.

The current trend of piling presumptions upon assumptions upon inferences in the courts is unsustainable. At some point the lack of any nexus between the loan documents and any party suffering injury is going to be revealed. Instead of waiting for things to collapse we should be proactive and lobby legislatures across the country for better laws, while allowing a new legal fiction created by law to allow for the designation of a creditor that passes constitutional muster to present a real case in controversy.

Filed under: foreclosure | 4 Comments »

2020 ROUNDUP: HOW TO WIN AND HOW TO LOSE FORECLOSURES

Posted on January 13, 2020 by Neil Garfield

This is where you start, subject to opinion of licensed local counsel.

Let me first stop you from referring to your nonpayment as a default. It is not a default if you stopped making payments to someone who lacked any authority to collect them. By saying you “defaulted” you are inadvertently admitting that it was a default and therefore tacitly admitting that the party demanding payment was entitled to do so. It’s all downhill from there. So don’t do that.

In most cases your originator appears to have been nothing more than that. In other words it was not your lender. It was mostly an independent entity that sold or brokered the loan or a subsidiary of a securities brokerage firm which went out of business and was acquired by a larger bank or securities brokerage firm without any payment or transfer of ownership for your debt.

YOU MUST TAKE ACTION IN ORDER TO PREVENT ANY FURTHER ACTION RELATING TO YOUR PROPERTY.

Based upon proprietary data accumulated by GTC Honors, Inc. over the last 13 years I have virtually no doubt in nearly all cases that the parties involved in collection, processing and enforcement of your loan have never paid value for the debt, which is to say that under the laws of most states means that they don’t own the debt. And under the laws of all states that adopted Article 9 §203 of the Uniform Commercial Code (all 50 states) a condition precedent to enforcement the mortgage is that the claimant must have paid value for the debt. See end of this article for explanation of securitization.

BUT such payment and ownership is often presumed from the apparent facial validity of (a) the original loan documentation and (b) transfer and apparent delivery of the promissory note and mortgage or deed of trust. You must rebut that presumption.

My interpretation of all that, based upon applicable case decisions, statutes, rules and regulations is that the following must be true in order for a foreclosure to be a valid exercise of legal rights that belong to a creditor:

The foreclosure is initiated on behalf of a creditor — i.e., one is who has paid value for the debt in exchange for legal ownership of the debt.
The forced sale of the property will result in a paydown of a legal debt owed to a disclosed creditor.
If a servicer is involved their authority to collect, process or enforce the debt must have come from the creditor who paid value for the debt in exchange for legal ownership of the debt.
Proper notice and demand for the correct amount due must have been delivered on behalf of the creditor and received by the borrower.
The creditor must be sufficiently identified so as to comply with ordinary rules and practices governing the requirements of legal pleading.

I don’t think any of the above elements apply to most cases. The foreclosure was most likely a ruse. The problem for you, like other homeowners, is that all of the above elements are assumed by the court based upon fabricated documents that are forged, back-dated and robosigned. On their face, these false documents are facially valid. And courts are required to basically take everything at face value unless challenged.

Thus you are faced with “proving” a negative. This is accomplished in discovery. By revealing to the court the unwillingness of the claimant’s attorneys to answer simple questions about the debt they say they are enforcing and the presumed agency relationships among them, the case turns against the claimant and its attorneys if you have aggressively pursued discovery with follow up motions to compel, motions for sanctions and motions in limine. The case turns in favor of the borrower many times because the litigation changes to a conflict between the foreclosure mill and the court and away from the named claimant and the borrower.

ONLY A COURT ORDER ISSUED BY A STATE OR FEDERAL COURT CAN STOP A FORECLOSURE SALE OR EVICTION. CONSULT WITH LOCAL COUNSEL ON ALL MATTERS.

Failure to challenge the foreclosure in a court of competent jurisdiction will ordinarily result in a sale of your property. This means that if you are served with process you have only a certain number of days to respond or else your property might be sold even though you have valid defenses.

This is not a substitute for getting advice from a lawyer who is licensed to practice law in the jurisdiction in which the property is located.

I am not offering any services that involve actively representing you or filing documents for you in court. My services are strictly offered in support for your local counsel and/or for your own use if you proceed pro se, which we advise against.

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In order to help you I need information and I need to analyze that information perhaps doing some additional research and investigation of my own. You should seek the services of legal counsel if only to get their advice on local procedure and substantive law.

The best way to find a lawyer is to be able to present that lawyer with a summary of your situation in a form that can be reviewed in just a few minutes. You should have a clear-cut set of goals that are realistic in the context of millions of foreclosures that were successfully completed as a result of default by the homeowner (failure to defend) or ineffectual defense. We can help with that.

Let’s take it one step at a time.

So if you want to get started, here is what you need to do:

1. If you want to submit a new registration form CLICK HERE.

2. If you already have a forensic report that includes a full title report with copies of all documents recorded in the chain of title, I will want to see that as part of my review of your case.

3. If you don’t have such a report you need to order one. We do that with our TERA report (see below). If you order the PDR PREMIUM you don’t need to order the TERA unless you need a written report. Remember that a report is not automatically admissible evidence and must be subject to live foundation testimony before its introduction as evidence except when an affidavit is used in motion practice.

4. In order to give you guidance on strategy and tactics, subject to opinion of local counsel, I will need to review court filings, notices, correspondence and statements. That is our Preliminary Document Review (PDR) — see below.

5. The PDR includes a phone consultation with me for either 30 minutes (PDR BASIC and PDR PLUS) or 60 minutes (PDR PREMIUM).

6. From what I already know you will get the best guidance by (a) ordering the TERA (or providing its equivalent) and (b) ordering the PDR including the CONSULT (see below).

7.It would be wise to order the PDR PLUS or BASIC.The Preliminary Document Review (PDR) includes a 30 minute consultation with me. It is recorded and a copy of the audio file is provided to you when we receive it from our conference bridge, www.freeconference.com. Most clients have it transcribed or ask us to order transcription at a cost of around $135 for each 30 minute segment — or they transcribe it themselves. Some get a friend who knows how to transcribe.

8. The way you get your documents to us is by uploading them by invitation to our ftp server account on www.box.com. You will get that invitation once you order a PDR. You’ll be able to use that folder to show anyone what is in it — but only by your providing them with the link. Otherwise it is very secure which is why I use it, along with governmental agencies, law enforcement and hundreds of law firms.

IT IS A GOOD IDEA TO KEEP OR CREATE A JOURNAL THAT YOU CAN SHARE WITH ME, BY UPLOADING IT AS A WORD OR PDF DOCUMENT TO YOUR FOLDER ON BOX.COM.

9. AFTER we have done at least preliminary analysis and AFTER we have spoken with you, we can agree on the scope and cost of engagement for us to write the narrative for your strategy and prospective tactics in court.

10. THEN I send you an email retainer agreement containing the scope of the engagement and the pricing and costs.

11. If you agree to the terms of the email retainer agreement, THEN I will bill you for the retainer payable as we have previously agreed.

12.Upon payment of the non refundable retainer we commence work on drafting your narrative, pleading, discovery or other scope of engagement.

CLICK HERE TO ORDER TERA

CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)

CLICK HERE TO ORDER CASE ANALYSIS (not yet)

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

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

EXPLANATION OF SECURITIZATION: The fundamental problem with securitization is not that it is illegal but rather than it encourages illegal behavior based upon false representations and misrepresentations to the courts.

*

The single reason for this lies in the start of virtually all securitization schemes. The money is coming from investors who make deposits with securities brokerage firms in exchange for an unsecured promise to pay in which the debtor is either a barely existing trust or the brokerage firm using the name of the “trust” as a business fictitious name.

*

Those investors are often referred to as certificate holders. Certificate holders are never beneficiaries of any trust and any claim by a “trustee” to represent the certificate holders is pure fiction.

*

Translation: Investors pay for the debt but they don’t get ownership of it. But the debt is funded before it even comes into existence with a loan to a borrower.

*

Common law and statutory law for centuries has held that a debt can only be enforced through foreclosure if the debt is owned by the party on whose behalf the foreclosure is initiated. All such law states that debt is only acquired by payment of value for it in exchange for ownership of it. The investors indirectly paid for it but they never received ownership of it. And they don’t get the payments from borrowers either monthly or through foreclosure.

*

Since payment was already made by investors, no party claiming to be a “successor” could or would make a payment to a preceding party who was not and could not demand payment — since the preceding party in the chain of paper instruments had not paid for the debt and therefore did not own the debt. That is the current and historical status of our laws.

*

The investors were not named as the payee on the note or the mortgagee (or beneficiary) on the mortgage (or deed of trust).

*

The securities brokerage firm (“investment bank”) who channeled the investor money to the closing table for loans through the escrow accounts of closing agents was never named as payee on the note or mortgagee (beneficiary) on the mortgage (or deed of trust).

*

The possibly existing trust was not named as Payee or mortgagee, but it was named as assignee on a fabricated assignment of mortgage in which the debt was not transferred by sale. Neither the trust nor the party named as trustee paid for for the debt. An assignment of mortgage without the debt is legal nullity in all applicable jurisdictions.

*

No trustor or settlor paid for the debt. Hence no debt was entrusted to the named “trustee.” The named “trustee” receives nothing except mention in an endorsement of the note or assignment of mortgage, which it holds not for investors but for the securities brokerage firm that started the securitization scheme.

*

In most cases both the original note and mortgage are not supported by consideration from the party named as payee on the note or mortgagee or beneficiary. Hence no consideration is actually paid to any predecessor and therefore no transfer of ownership of the debt has ever occurred. In cases where the origination was in fact paid by the “lender” the movement of money stops immediately after the originator is paid for the loan because the money came from the investors, and is not carried on the books as an asset of the securities brokerage firm, it at all, for more than 30 days.

**

ELEPHANT IN THE LIVING ROOM: Yes this produces an anomaly in which there is no legal owner of the debt. That is what Wall Street intended. It is what enabled them to make huge profits equal to vast multiples of the “loans” that were being granted. In reality those were not loans but merely a cost of doing business — in the business of issuing and trading unregulated securities. It is called “leveraging” or “laddering” depending upon whom you ask.

**

It is not borrowers saying “there ought to be a law” because the laws are already there.

*

It is the foreclosure mills and banks who want and get the courts to ratify illegal behavior. Wall Street changed the very essence of lending from risk of loss from nonpayment to elimination of risk of loss and still getting payment.

*

This was a change in the reasonable expectation of homeowners who appeared as borrowers that the laws (TILA and state lending laws) applied and that the lender was responsible for and cared about the viability of the loans. In fact, the “lender” was most often brokering the loan and papearing, for a fee, as Payee and mortgagee (beneficiary) despite the absence of any financial interest in the loan or its transfer.

*

Accordingly, nearly all foreclosures, if successful, result in a distribution of money to a variety of players who receive such money as fees, compensation, profits or commissions and not as payment for the debt (because they do not own the debt).

*

The question often posed is why should the homeowners get a “free house” as a result of all this. That is the wrong question. In the face of failure to disclose the gross revenue arising from origination or acquisition of the loans and the identities of the players involved, (a) why should such behavior be rewarded and (b) why shouldn’t the homeowners be able to exercise their legal rights to disgorgement of such undisclosed profits and compensation?

*

Translation: If securitization was performed in a legal manner there would have been detailed disclosure to investors and borrowers as to exactly what was happening with the money and changes in documents in which some entities would have been designated as possessing the right to foreclose even though they did not have actual ownership of the debt. The borrower would need to agree to that. Now what is needed is not twisting old law without regard to the intrinsic value of the transaction to both sides. Any law allowing such transactions would require full disclosure to investors and borrowers.

So an investor who is putting up money would then know that the underwriting of loans was no longer based upon risk of loss. And the investors would know that the incentive was to loan money in high risk loans in order to maximize the tier 2 yield spread premium. And thus the investor would either bargain for more stringent underwriting standards or a piece of the pie generated by liberating loans from risk of loss — or both.

And a borrower would know that his signature is triggering a highly profitable series of securities being issued on the basis of his signature, name, credit reputation and his home as collateral. The borrower would then know that the lender did not care about repayment, except in the abstract. The borrower would know that the the source of revenue was not so much interest income as it was profits from issuance and trading in securities. In short the borrower would know the entire contract not just the part where he signed loan documentation.

And then the borrower would have the opportunity to bargain — the key reason for passage of the Federal Truth in Lending Act — for greater assurances on the viability of the loan (including valid appraisals) or again a piece of the pie that was heretofore concealed from the borrower. As of now borrowers still do not know the risk they are assuming.

Whether the market forces will even out in a world where there is full disclosure is a matter of conjecture. But the point of our economic and legal system is to provide the greatest possible assurances that free market forces are operating — something that cannot happen where there is gross asymmetry of information.

Maybe the borrower will get paid enough to pay off the “loan” and maybe not. But one thing’s sure: if homeowners continue to win their cases, the “free house” will be the result of illegal activity by the foreclosure mills and investment banks — not the result of any misbehavior by borrowers.

Put another way, if a pie was created by investment banks why should they get all the slices unless the other parties were at least told about it?

Filed under: foreclosure | 1 Comment »

Giullermo give your correct email address

Posted on January 13, 2020 by Neil Garfield

Filed under: foreclosure | Leave a comment »

Loans Claimed to be Owned by Fannie Mae Have Probably Been Sold to Private Investors

Posted on January 10, 2020 by Neil Garfield

There is a shroud of mystery around the entire role of the FHA. Its purpose is to guarantee loans, which was expanded to buy loans. It was never a lender. But the process of buying loans was just as complicated as everything else where securitization of debt is claimed. In most cases it “bought” loans from parties who never owned the debt and therefore had nothing to sell.

Furthermore the purchase was “funded” by a complex process which culminated in giving “certificates” issued by so-called REMIC trusts in which Fannie or Freddie was the “Master Trustee.” Whether such transactions constituted payment of value for anything is up for debate since we here do not know if Fannie or Freddie ever paid for the certificates.

Following the trend of “resecuritization” we have found that most nonperforming and reperforming loans are being sold by the GSE’s at a brisk pace. But foreclosures are proceeding as if the the loans were never sold at all. So we conclude here that many if not most foreclosures in which the names of Fannie and Freddie are invoked are merely cloaks for further weaponizing foreclosure procedures to obtain revenue instead of restitution for an unpaid debt. Restitution could only go to someone who lost money. That can only mean someone who paid value for the debt as required by Article 9 §203 UCC as adopted in all U.S. jurisdictions.

Practice Note: Both lawyers and pro se litigants fall into the trap: They assume that there has been a default despite the fact that nobody who has paid for the debt has suffered any financial injury — nor are they the claimant in any foreclosure action. That is because they do not own the debt and have in fact disclaimed such ownership in exchange for a promise of unsecured payments from a third party (securities brokerage firm). The default is a fiction and the foreclosure results in forced sale of property to produce revenue for the foreclosure participants.

This is why it is so important to establish in discovery that the opposition cannot produce a shred of evidence of payment for the debt. There was no payment “for the debt.” Since this is so counterintuitive as to be dismissed by most practitioners they ignore it and go on to admit in judicial proceedings that the lawsuit is a foreclosure when in fact, it is not. By admitting that the action is a foreclosure you are tacitly admitting that this is about restitution of an unpaid debt through a contract in which the claimant is a party, when in fact it is not.

Check this out:

Non-performing Loan Sales

Fannie Mae’s sales of non-performing loans, which are part of the Federal Housing Finance Agency’s 2015 Conservatorship Scorecard, are intended to reduce the number of seriously-delinquent loans that Fannie Mae owns, to help stabilize neighborhoods and to help meet the portfolio reduction targets required under the Senior Preferred Stock Purchase Agreement with the United States Treasury.

On March 2, 2015, the Federal Housing Finance Agency (FHFA) announced guidelines for these sales to encourage broad buyer participation and provide safeguards for borrowers. These guidelines require the buyers of non-performing loans to offer loan modifications to borrowers and provide foreclosure alternatives whenever possible. If foreclosure cannot be prevented, property sales to owner-occupants and non-profit agencies must be prioritized.

Fannie Mae will work to sell these loans to investors, nonprofits and public sector organizations. The company anticipates bringing pools of loans to the market on a regular basis. Fannie Mae intends to offer a mix of both larger and smaller pools that may be more attractive to nonprofits, smaller investors and minority- and women-owned businesses.

Reperforming Loan Sales

On October 11, 2016, Fannie Mae began marketing its first sale of reperforming loans as part of the company’s ongoing effort to reduce the size of its retained mortgage portfolio as indicated above. Reperforming loans are mortgage loans that were previously delinquent, but are performing again because payments on the mortgage loan have become current with or without the use of a loan modification plan.

see https://www.fanniemae.com/portal/funding-the-market/npl/index.html

Filed under: foreclosure | 9 Comments »

Tonight! What’s in a label? Everything!

Posted on January 9, 2020 by Neil Garfield

Picking the labels apart

PLAINTIFF THE BANK OF NEW YORK
MELLON

FKA THE BANK OF NEW YORK
AS TRUSTEE FOR THE
CERTIFICATEHOLDERS CWABS, INC.
ASSET-BACKED CERTIFICATES, SERIES
2006-11

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How do you lose a case to a claimant with no claim? It’s simple. Let them pretend to have a claim and then watch judgment be entered against you in favor of a claimant without a name. Musical foreclosure chairs.

It all starts with labelling. The banks have long been masters at labelling things to seem like something other than reality. Close reading of the name of the claimant is often a key to a successful defense. Tonight I show you how to do that.

Filed under: foreclosure | Leave a comment »

“Corridor Agreement” Opens More Questions on Role of BONY Mellon

Posted on January 8, 2020 by Neil Garfield

SO BONY mellon is known to be named as “trustee” over what is probably a nonexistent trust with nonexistent beneficiaries since investors do not qualify as beneficiaries of any trust. The authority of BONY Mellon to represent “certificate holders” is never described in any allegations or exhibits. It is only a label.

Dig deeper and you will find actual trust agreements that are kept from court view, and still others like the “Corridor Agreement” which raises more questions than it could possibly answer found at https://www.lawinsider.com/contracts/dSu5MtwMEFKTTYLOTpEZs/cwabs-asset-backed-certificates-trust-2006-11/corridor-contract-administration-agreement/2006-08-08

Some quotes from the Corridor Agreement

This CORRIDOR CONTRACT ADMINISTRATION AGREEMENT, dated as of June
29, 2006 (this "Agreement"), among THE BANK OF NEW YORK ("BNY"), as Corridor
Contract Administrator (in such capacity, the "Corridor Contract
Administrator") and not in its individual or corporate capacity but solely as
Trustee under the Pooling and Servicing Agreement referred to below (in such
capacity, the "Trustee"), and COUNTRYWIDE HOME LOANS, INC. ("CHL").

            WHEREAS, CHL is a party to an interest rate corridor agreement
between CHL and Bear Stearns Financial Products Inc. (the "Counterparty"),
with a Trade Date of June 22, 2006 and a reference number of FXNEC8436 (the
"Corridor Contract"), a copy of which is attached to this Agreement at Exhibit
A;

EDITOR'S NOTE: CHL is described as having some interest in some interest rate that appears
 to be a reference to the rate paid to certificate holders who received an unsecured
Promise to make payments to owners of certificates issued by Bear Stearns in the name
of a trust that either did not exist or barely existed with virtually no assets and certainly 
no ownership of loans.

WHEREAS, CHL is conveying certain mortgage loans and other related
assets to a trust fund (the "Trust Fund") created pursuant to a Pooling and
Servicing Agreement, dated as of June 1, 2006 (the "Pooling and Servicing
Agreement"), among CWABS, Inc., as depositor, CHL, as a seller, Park Monaco
Inc., as a seller, Park Sienna LLC, as a seller, Countrywide Home Loans
Servicing LP, as master servicer (the "Master Servicer"), the Trustee, and The
Bank of New York Trust Company, N.A., as co-trustee, with respect to the
CWABS, Inc. Asset-Backed Certificates, Series 2006-11;

            WHEREAS, simultaneously with the execution and delivery of this
Agreement, CHL is assigning all of its rights, and delegating all of its
duties and obligations (other than its obligation to pay the Fixed Amount and
any fees, if applicable (as defined in the Corridor Contract)), under the
Corridor Contract to the Corridor Contract Administrator, pursuant to the
Assignment Agreement, dated as of the date hereof (the "Assignment
Agreement"), among CHL, as assignor, the Corridor Contract Administrator, as
assignee, and the Counterparty;

            WHEREAS, CHL desires that the Net Payments (as defined below) on
the Corridor Contract be distributed to the Trustee on behalf of the Trust
Fund to be applied for the purposes specified in the Pooling and Servicing
Agreement and that the Excess Payments (as defined below) on the Corridor
Contract be distributed to CHL;

       
            Controlling Party: As defined in Section 5.

            Corridor Contract Account: The separate account created and
maintained by the Corridor Contract Administrator pursuant to Section 3 with a
depository institution in the name of the Corridor Contract Administrator for
the benefit of CHL and the Trustee on behalf of the Holders of the Benefited
Certificates and designated "The Bank of New York for Countrywide Home Loans,
Inc. and certain registered Holders of CWABS, Inc., Asset-Backed Certificates,
Series 2006-11". Funds in the Corridor Contract Account shall be held for CHL
and the Trustee on behalf of the Holders of the Benefited Certificates as set
forth in this Agreement.

            
EDITOR'S NOTE: You really need to read this carefully. CHL is assigning without 
any warranty of ownership because it has no ownership. It is using labels to create
a seller and other roles without any descriptions of ownership or authority or even 
a description of what is being sold and how the sale was consummated ---
mostly because there was no such sale except for purposes of getting the loans off 
the books of Bear Stearns and onto nonexistent financial records of the fictitious trust.
Notice also the specific wording that there are recipients of payments described as
 . certain holders of interests in those payments and excess payments. 

Unlike most contracts drafted by banks everything is left undefined. 
In most contracts "holders" would be specifically defined either in the 
agreement or by reference to a separate agreement where the information
could be found. Instead they are relying upon labels and confusion so nobody
asks questions. 

And then further down you see that BONY is not liable for anything done in its name.
So the question is how does BONY Mellon claim to be trustee and at the same time
have separate agreements inuring to the benefit of CHL (now Bank of America)
and a securities brokerage firm? Unless BONY Mellon is in fact trustee for Bear Stearns
there would be an bvious conflict of interest preventing BONY from being a trustee.

Filed under: foreclosure | 14 Comments »

Labels Lie: Everything They Say is a Lie

Posted on January 7, 2020 by Neil Garfield

The moral of the story is don’t admit anything, not even the default. There is no default if the party demanding payment has no right to do so.

Everything they are saying is a lie. Just because they use a label doesn’t mean it is accurate.

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

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

With some editing, here is a response to one of my clients who is battling with a fictitious trust and a fictitious trustee. The first step out of the playbook of the banks and foreclosure mills is to put a label on something that invites you to use it — thus creating the illusion that you admit to the accuracy of the label. This is the biggest trapdoor that lawyers and pro se litigants fall through.

The biggest example of this phenomenon is the style of foreclosure cases both judicial and nonjudicial. One such example is Bank of New York Mellon, as trustee on behalf of the certificateholders of the CHL-2007-1 series certificates. This “label” says absolutely nothing. It creates a vehicle for plausible deniability for all concerned — the lawyers, Bank of New York the servicers and the investors. If a lawsuit was filed and a judgment was entered against that label, nobody would be liable to satisfy the judgment.

So first thing you are invited to refer to the case as Bank of New York Mellon versus the borrower. It isn’t. It is the certificate owners versus the borrower suing through Bank of New York Mellon. But even that is a lie. The certificates don’t convey any right, title or interest to any debt, note or mortgage. So the owner of the certificate has no right, title or interest in the loan and cannot collect, process or enforce the loan.

But it is even more insidious. They label Bank of New York Mellon as “Trustee.” Yet there is no reference to a trust and there is no explanation as to the authority of the Bank of New York to represent the certificate holders who have no rights against the borrower anyway.

“Trustee” is misrepresentation of the role of BONY Mellon. It is not a trustee in the sense that your loan has been entrusted to BONY to hold in trust. No trustor or settlor has ever transferred the debt to BONY Mellon. No transfer of the mortgage is legally effective under the laws of any U.S. jurisdiction without transfer of the debt. It is referred to as a legal nullity. If you ever get a copy of the actual trust agreement you will see that the trustee is like MERS — holding barenaked title to the mortgage without owning the debt or the note. BONY has absolutely no right to even inquire much less know or manage the affairs of any “portfolio” of loans. That is what the documents actually say.

Don’t fall through the trap doors of their paper instruments. Follow the money. In your case you find that the ONLY parties that paid value were the investors who purchased certificates and then the securities brokerage firm that used only part of that money to buy or originated loans.

And that is where the essential problem lies. The only parties who actually paid their own money did NOT get any right, title or interest to the debt, note or mortgage and in fact expressly waived such interest. The only intermediary that funded the origination or acquisition of the loan did not retain any possible risk of loss for more than 30 days and usually had no risk of loss because they had presold the loans before they existed.

Therefore under current law which states that a claimant must have paid value for the loan before it can enforced through foreclosure, there is nobody who can enforce. Argue that though and the judge will throw you out of court even though it is true.

So you must stay away from saying that while harping on the fact that the claimant (a) never paid value for the debt as required by Article 9 §203 UCC as adopted by state law and (b) that the claimant is not an agent for anyone who paid value for ownership of the debt. You want to leave open the idea that there is someone out there who owns the debt and that these people seeking to enforce are not connected to such a person or party — even though there is no such person or party.

It is a fundamental maxim of equity that “equity looks to substance rather than form.” See Applestein v. United Bd. Carton Corp., 60 N.J.Super. 333, 348, 159 A.2d 146 (Ch.Div.) aff’d o.b., 33 N.J. 72, 161 A.2d 474 (1960). The courts have applied that principle in dealing with mortgages in a variety of contexts. So it is that an assignment of a bond or note evidencing a secured obligation will operate as an assignment of the mortgage “in equity.” See 29 New Jersey Practice, Law of Mortgages § 11.2, at 748 (Myron C. Weinstein) (2d ed. 2001) (citing Stevenson v. Black 1 N.J.Eq. 338, 343 (Ch. 1831) and other cases). Conversely, commentators have noted the propriety of treating the assignment of a mortgage, without a specific reference to the underlying obligation, as effectively transferring both interests.

PAGE 348

The assignment from MERS was executed and recorded a short time after the complaint was filed. That document is dated February 18, 2009. It is captioned “Assignment of Mortgage.” It recites that MERS, as nominee for American Home, transfers and assigns the mortgage at issue to Bank of New York, as Trustee. The assignment refers to the mortgage as securing the note at issue. It recites the transfer of the mortgage “together with all rights therein and thereto, all liens created or secured thereby, all obligations therein described, the money due and to become due with interest, and all rights accrued or to accrue under such mortgage.” The assignment was executed by Linda Green, as Vice President of MERS, as nominee for American Home Acceptance. Green’s signature was notarized. The assignment was recorded with the Atlantic County Clerk on February 24, 2009. It does appear the assignment was intended to indicate that the debt in question had been transferred to the Bank of New York as Indenture Trustee in February 2009. It is now apparent that is not what occurred. (e.s.)

Legislative note: There are multiple possibilities for making such securitization legal but they all require high transparency which means disclosure to investors and borrowers alike as to the actual role of the intermediaries and the money they are generating from the investment by investors and the execution of loan documents by borrowers. The continuing struggle by U.S. State and Federal Courts to give life to loans that are functionally and actually illegal and unenforceable must yield to the express directions contained in the U.S. Constitution. It is entirely up to the legislative branches, not the judicial branches of government, to make changes in the law.

Right now it is not possible under existing law to securitize in the manner used by Wall Street since the mid 1990’s. Wall Street knows it. The current methods split the payment of value for the debt from ownership of the debt. This is impossible under current law. And fundamentally this is the achilles heal of the entire scheme of securitization – and why persistent lawyers and homeowners win most of the time.

A change in the law is possible only if there is informed consent by the participants — that the owner of the debt and thus the party entitled to collect, process and enforce the debt is be clearly identified and accepted. It is only through such disclosure that the implied contract becomes actual and the parties are able to bargain for their share of the true transaction and business plan which is the issuance and trading of securities, which should fall back under the rubric of securities regulation.

And probably the most fundamental change in disclosure requirements should be the identification of the party who is responsible for compliance with state and federal lending laws — something that is well hidden by what the industry calls “remote vehicles.” At the moment the use of disingenuous labels creates the illusion of bridging the gap but American jurisprudence has always favored substance over form. The day of reckoning is coming and it is going to hurt. Plausible deniability works but only at the beginning. Eventually the chickens come home to roost.

Filed under: foreclosure | 8 Comments »

Are You a Lawyer Looking to Make Money? I can refer clients to you. No cost.

Posted on January 3, 2020 by Neil Garfield

There are hundreds of thousands of prospective good paying clients with a high likelihood of success that lawyers are ignoring. This herd mentality is shifting lawyers away from their primary function: representation of people whose rights are being violated on a systematic basis.

The influx of requests for me to represent people who are engaged in a battle for their homes is reaching a feverish pitch. Here is the scoop. Except for a few legacy cases, I do not accept engagements for appearances as attorney of record nor as the advocate for any new cases. I refer cases out but the number of lawyers accepting such referrals has substantially diminished.

This is the result of misinformation and disinformation in mainstream media making it appear as though cases involving defense of foreclosure, ejectment, eviction, unlawful detainer are unwinnable and that the clients are deadbeats who cannot pay fees. The Wall Street banks pay big money to get that message out since it discourages homeowners from even considering a defense.

Both of those premises are untrue. Foreclosure defense and the filing of various causes of action centering around wrongful foreclosure or wrongful eviction can be very successful and profitable — both in hourly fees and contingency fees.

Any competent trial lawyer can win these cases and if they do their work right, they will win at least 2/3 of their cases. There are always judges who simply won’t listen to anything but they can be overturned on appeal.

The bottom line is that virtually all foreclosures are based upon a false premise that is not supported by law: the claimant is not the owner of the debt and thus the “foreclosure” is not really an action for restitution of an unpaid debt. Under current law in all U.S. jurisdictions, once this fact is inferred, presumed or established, the foreclosure fails.

I coach both attorneys and pro se litigants on methods, strategies and tactics to create the inference or presumption or to even establish the fact that the claimant did not pay for the debt, that the assignment is a legal nullity and therefore the foreclosure sought is not legally available. I have had judges specifically rule on the deficiencies of the case brought in foreclosure because in the end it was all smoke and mirrors presented. In many cases even when a claimant is named it doesn’t even exist.

I do not solicit nor accept split fees or referral fees since I will not be attorney of record. So a referral from me comes without cost to the trial attorney. If you accept an engagement, the client is yours and is not subject to any control by me. As the only legal decision-maker you can either choose to employ GTC services as a consultant or not —without any obligation to do so.

So YES I can refer cases to you and you will prosper in both reputation and wealth as a result — but only if you have the trial skills necessary to defeat opponents whose only hope for victory lies in effective use of procedure and legal presumptions. And one thing more — you must have the willingness to persevere and be relentless. Until the very last minute the only offers you get are going to be specifically designed to undermine your confidence in the case.

I don’t care if you know anything about property law or foreclosures. The requirements are simple and can be learned in a matter of minutes. If you know trial law you can win most of these cases. Many lawyers before you have made millions of dollars based upon business plans that I designed back in 2008. It’s time to step it up a notch.

If you are a trial lawyer with experience then you are candidate for these referrals. That means you have been lead attorney in both bench and jury trials and verdicts have been entered in favor of your client.

If you think you qualify for this, simply write me an email at neilfgarfield@hotmail.com. I will call you if you want.

Filed under: foreclosure | 6 Comments »

Collection Letters Can Renew Statute of Limitations

Posted on January 2, 2020 by Neil Garfield

The courts had previously protected borrowers as much as possible. Now there is a distinct trend in which even claims barred by SOL can be renewed and energized.

For homeowners facing foreclosure they may be waiving a very powerful defense: statute of limitations.

They are being lured into waiving such defense by solicitations to engage in in some payment plan in which the homeowner acknowledges the debt. This case, approved by 9th Circuit court of Appeals, affirms that holding thus permitting creditors to trick borrowers into renewing claims that didn’t exist in the first place.

The moral of the story is that you should not even respond to such solicitations without consulting an attorney who understands the issues.

see Stimpson v. Midland Credit Mgmt., Inc., 347 F. Supp. 3d 538 (D. Idaho 2018)

See Stimpson Case

So the moral of the story is that the now conservative courts say that even if the statute of limitations has run, a servicer or collection company can offer you a payment plan on the debt. By acknowledging the debt and/or by paying on the debt, you are probably renewing the statute of limitations and removing it as a defense to enforcement.

So the banks are sending solicitations for you to pay off debts that are barred, in whole or in part, by the statute of limitations. If you engage with them, you are probably waiving the defense of the statute of limitations.

So before responding to any service or other debt collector make sure that the statute of limitations has not already run. If it has, an appropriate response would be to tell them that the SOL has run and please don’t contact you again about the debt (if the entire amount is barred by SOL) or to limit their correspondence to claims not barred by SOL.

Filed under: foreclosure | 6 Comments »

OFAMA: Acronym for 2020

Posted on December 31, 2019 by Neil Garfield

As you are no doubt aware on a daily basis I seek more information, research, and analysis about the residential loan market. In addition I spend a lot of my time trying to simplify the task of presentation in court in a competent, credible and convincing manner. Don’t think you are a lawyer because you read this. Get advice from local counsel before deciding or acting.

Toward that end I have currently landed on the acronym OFAMA meaning Ownership — Fabrication — Agency — Money — Authority.

OWNERSHIP: The plain fact is that the “loans” do not qualify as loans or gifts. That puts them in a legal purgatory because it is impossible under current law to own a debt without paying for it. And it is impossible to enforce a mortgage without owning the debt. So even the receipt of money for a “loan” does not create or even allow for a valid promissory note or mortgage if the named Payee and Mortgagee did not pay for the loan. All “transfers” are a legal nullity if the transferee did not pay for the debt. Execution of the note creates a separate distinct liability from the debt created by receipt of money for the loan. Even if the loan was a genuine loan from the originator Payee or Mortgagee, the transfers of the note and mortgage are subject to the same problems. There is no consideration after the loan is subject to claims of securitization.

FABRICATION: In order to initiate foreclosure proceedings, companies are organized around the practice of fabricating, forging, backdating and robosigning documents that appear to be facially valid in order to raise certain legal presumptions of ownership, agency and authority. Those presumptions are easily rebutted if the homeowner is very aggressive in getting an order from the court commanding the opposition to produce proof of payment.

AGENCY: By inserting MERS and dozens of other intermediaries, the activity alone is meant to and does give rise to an judicial assumption that the documents are genuine and even if they are not the foreclosure will result in restitution of an unpaid debt. That belief is the reason why most judges bend over backwards in allowing foreclosures to proceed whereas in prior decades they would have thrown the case out even if the homeowner didn’t even show up. Your opposition will attempt to use sleight of hand by creating the illusion of agency. The agency they are supposedly promoting is both real — as to parties who don’t own the debt — and unreal — as to parties who own debt.

MONEY: Your loan is solely about money. The documents are about money. The procedures are intended to be about money. Foreclosure is meant to and is assumed to be a remedy for restitution of an unpaid debt — not simple enforcement of a contract. If money is not involved then there is no foreclosure process that applies. If the claimant in your foreclosure is not the owner of the debt then the case is not about restitution of debt to the claimant by definition. But a problem emerges when judges presume that even if the claimant is not the owner of tehd ebt, the proceeds of the foreclosure sale will be paid to the parties who paid for the debt. Most judges have little or no experience with complex finance. So their ignorance is understandable. The truth is that almost every residential loan has been subject to claims of securitization and from the moment those claims arose, the parties who paid for the origination or acquisition were investors but they failed to become owners of the debt, leaving it to anyone who wanted to claim it. Current law does not allow for that. Changes in the law will be explored in the current year such that securitization is possible but that means comprehensive change in disclosure and practices.

AUTHORITY: Ultimately all of the cases boil down to a general belief that somehow all the parties are related and are on the same team. Nothing could be further from the truth. The parties who cooperate in each foreclosure are actually engaged in weaponizing the procedures for foreclosure into a scheme to generate revenue. We know that because in no case do the money proceeds from a foreclosure sale or REO sale go to anyone whose money funded the origination or purchase of the debt. Those investors only received an unsecured promise to pay from a securities brokerage house (“Investment bank”) whose promise was conditioned on a variety of events and who never retained any risk of loss on any loan — thus changing the entire business dynamic of lending in which borrowers and regulators realistically presumed that lenders would be worried about lack of performance on the loan. Instead, under the new securitization dynamic, they were using their apparent authority and their relationships with sham conduit entities to profit from (a) steering borrowers into loans with interest rates higher than the return promised to investors (2d tier yield spread premium) and (b) “trading profits” arising from the issuance and trading in various contracts, hedge instruments, and other options and insurance that paid off when the loans or the certificates failed. In short the worse the loan the more money the securities brokerage firms made. Receiving the proceeds of foreclosure is just the cherry on top of a much larger scheme to generate revenue that averaged 12 times the amount of the loans.

Don’t try to educate the judge as to all of this. Just attack the basic premise of the foreclosure but in doing so attack the authority and agency of the parties claiming to be servicers, trustees or other administrators so that in the end it is apparent in court that (a) the claimant does not own the debt and (b) is seeking to enforce the debt on behalf of persons or entities that are not carrying the debt as an asset on their own books and records. Eliminate the presumptions and rest. There won’t be any real evidence to replace the destroyed presumptions.

Filed under: foreclosure | 3 Comments »

PennyMac Laundromat: Is anything real there?

Posted on December 27, 2019 by Neil Garfield

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

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

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GET FREE HELP: Just click here and submit the confidential, free, no obligation, private REGISTRATION FORM. The key to victory lies in understanding your own case.

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I provide advice and consultation to many people and lawyers so they can spot the key required elements of a scam — in and out of court. If you have a deal you want skimmed for red flags order the Consult and fill out the REGISTRATION FORM.

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THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.

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PennyMac is generally used as a vehicle to launder bad title and pursue foreclosures on behalf of entities that have no right, title or interest in the debt, note or mortgage. Generally speaking all of the documents that purport to involve PennyMac and its predecessors are fabricated and false. They are false because they falsely imply the existence of financial transactions in which value was paid for the debt.

All residential home loans are about money and nothing else. The banks seek to distract you and the courts from looking at the money and instead, direct you into looking to documents. If I produced a document that looked facially valid, a judge might accept it as valid and true even though the matter asserted in the document is actually untrue. So for example if I were to produce a “facially valid” document saying I am your father, it wouldn’t be true but it would still be taken as true until you rebut the presumption arising from the “facially valid document.

So the first step is really examining a document to determine whether it is facially valid. There are times, strategies and tactics where it might be wise to direct the court’s attention to this issue by simply filing a motion that disputes the facial validity of a particular pleading oir document and asks for an evidentiary hearing on the subject. Some judges grant such motions because a ruling from such a proceeding might propel the case to an early end.

A facially valid means what is says. If the document recites all the elements required by statute and it is properly signed (and notarized if so required), the document is facially valid and the legal presumptions are available to the proponent of such a document or pleading.

So the court takes as true all assertions on the face of the document. A document is not facially valid if it is impossible to determine what is asserted as factually true.

A reference to an external document that is not attached or even identified frequently results in a dispute over the facial validity of the document which may require an evidentiary hearing on the validity and authenticity of the document. But if the opposing party fails to raise such an objection the document will be accepted as facially valid and then the factual assertions contained or implied by the document will generally be taken as true.

The debt lies at the root of the loan, the servicing, the collection, and the enforcement of the loan. Without the debt, there is no authority. Without the debt the action is not a foreclosure even though the lawyers label it as a foreclosure. The lawsuit or notice of sale is merely a device to generate revenue which is expressly void against public policy and law.

The problem is that the banks developed a scheme by which investors paid for the debt and never received ownership of the debt, note or mortgage. This means that third parties receive borrower payments, insurance payments, bailout payments and proceeds of foreclosure sales — something which is not allowed under current law, nor should it be allowed.

None of these third parties ever turn over such money to the investors who paid for value but did not pay value in exchange for ownership of the debt. As a result, any document implying the transfer of the debt through payment of value is substantively invalid because no such transaction ever occurred in the real world.

There is no reason for a “successor” to pay a “predecessor” if neither of them owned the debt. The only way you get to own a debt is by paying for it with real value which means money. When you ask for a description of such transactions you will be met with a variety of obscure objections whereas if they had it, they would gleefully reveal it. Neither the note nor the mortgage (or deed of trust) can be actually fully separated from the debt because the obligation to make payment on the debt is all that those documents are about.

I’m not saying the debt doesn’t exist. I’m saying based upon review and analysis of documents, there is nobody in the chain of title relied upon by your opposition who has ever participated in a transaction in which value was paid for the debt. Ownership of the debt can only be accomplished, based upon my research, by payment of value for the debt. See Article 9 §203 of the Uniform Commercial Code as adopted by all U.S. jurisdictions including your own.

Payment of value for the debt is a condition precedent to enforcement of the debt. This is both common sense and statutory law. If “servicing”, administration, collection or enforcement of the debt is performed on behalf of a claimant that does not own the debt, then the condition precedent is not met. Such actions are illegal and any documents that are created to support such illegal actions are void.

If the “servicer” or holder of a limited power of attorney, as in many cases, is not the legally authorized representative of a party who possesses ownership of the debt (i.e., they paid for it) then their actions are illegal, unauthorized and probably fraudulent. In a foreclosure the court must know (not hope) that the proceeds of the foreclosure sale will go to a party or group of parties who paid value in exchange for ownership of the debt. If the court does not know that, it isn’t a foreclosure, which is a remedy exclusively designed to provide restitution of an unpaid debt.

The issue confronting you is that the documents, at first blush, appear to be facially valid. But the reference to an unidentified unattached external document like a Power of Attorney in lieu of an actual servicing agreement reciting the authority of the parties, makes such documents facially invalid but still subject to proof. Upon proving authority as I have outlined above, the document could be deemed valid, if the proffering party proves the line of succession that starts with an owner of the debt. In virtually all “securitization” cases I don’t think any such line of succession exists.

Filed under: burden of persuasion, burden of pleading, BURDEN OF PROOF, discovery, Discovery -Subpoena, evidence, foreclosure, foreclosure defenses, Pleading, Presumptions, prima facie case, sham transactions, standing | Tagged: Citimortgage, facially valid, Pennymac | 7 Comments »

What We Do At GTC Honors, Inc. d/b/a Livinglies.me

Posted on December 26, 2019 by Neil Garfield

I want to be clear about my involvement. First of all I serve as consultant, not attorney of record in any new matter. I do not actually file with any court nor appear in court as advocate anymore. I am licensed to do so but I don’t. And I am only licensed to do so in Florida, Federal and Washington DC. Any work done for you or anyone else is predicated on the assumption that the recipient is either a lawyer or someone who will go to a lawyer who is licensed in the jurisdiction in which the property is located. If there is any conflict between my suggestions and the opinion of local counsel I defer to local counsel.

Second despite the mountain of evidence of systemic fraud, theft, perjury, fabrication, forgery, robosigning etc., there is no guarantee of success. A corollary to that is that because of the required commitment of time, money and effort, the best personal decision could be to settle or just walk away. Sometimes getting on with your life is the best revenge.

Third, at GTC Honors, Inc. we spend most of our time and resources performing work for the public at large, without compensation. We do get donations but they are not nearly enough to sustain the huge effort we make every day to help homeowners in distress and consumers in general.

So we must charge for any time spent on individual cases, including reviews or telephone conversations. In fact, we offer a Preliminary Document Review (PDR) in three stages — Basic, Plus, and Premium — depending upon the volume of documents that need to be reviewed and the length of those documents. This also includes consults which must be preceded by submission of a registration statement. The registration statement is forwarded to an email account, and I respond by email to some salient points that come to mind.

Fourth if you are seeking to propose any type of business alliance, we are open to anything that adds value and reduces the time it takes for GTC Honors, Inc. to do its work. If you wish to submit a proposal then I strongly recommend you follow the normal elements of a business plan proposal that is short, to the point, and addresses specific issues. Anything else is not likely to get a response.

If you want to submit a new registration form CLICK HERE.

CLICK HERE TO ORDER TERA

CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)

CLICK HERE TO ORDER CASE ANALYSIS (not yet)

CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR PLUS or BASIC includes 30 minute recorded CONSULT. PREMIUM includes 60 minute CONSULT.)

Please visit www.lendinglies.com for more information.

Regards,

Neil F Garfield, Esq. M.B.A., J.D.

GTC Honors, Inc.

Filed under: foreclosure | Leave a comment »

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

Posted on December 26, 2019 by Neil Garfield

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

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

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

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

GET FREE HELP: Just click here and submit the confidential, free, no obligation, private REGISTRATION FORM. The key to victory lies in understanding your own case.

Let us help you plan for trial and draft your foreclosure defense strategy, discovery requests and defense narrative: 954-451-1230. Ask for a Consult or check us out on www.lendinglies.com. Order a PDR BASIC to have us review and comment on your notice of TILA Rescission or similar document.

I provide advice and consultation to many people and lawyers so they can spot the key required elements of a scam — in and out of court. If you have a deal you want skimmed for red flags order the Consult and fill out the REGISTRATION FORM.

PLEASE FILL OUT AND SUBMIT OUR FREE REGISTRATION FORM

Get a Consult and TERA (Title & Encumbrances Analysis and & Report) 954-451-1230. The TERA replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).

THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.

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RULE #1: STOP CALLING THEM “THE BANK.” THEY ARE MOST LIKELY NOT THE BANK — AND THEY DO NOT EVEN QUALIFY AS SERVICERS IN MOST INSTANCES. THINK OF THEM AS SCAM ARTISTS WHO HAVE GAINED YOUR CONFIDENCE (I.E. CON MEN) TO PREVENT YOU FROM INQUIRING ABOUT WHO SHOULD BE RECEIVING YOUR PAYMENTS OR THE PROCEEDS OF A FORECLOSURE SALE.

Technically you are most likely NOT dealing with anyone who qualifies as a creditor nor even a debt collector, who could only be functioning on authority from an actual creditor. So theoretically you would be well within your legal rights to simply not pay money to a party who is not entitled to receive them.

Reality is different from theory. While in past times anyone attempting to collect, process or enforce a debt would be required to disclose everything about their ownership, agency or authority, today virtually everyone presumes that any such party has legal status. Because of that presumption, refusing to make payments as demanded is fraught with the risk that (1) the pretender lender will declare you to be in default and (2) start enforcement proceedings against you based upon fabricated but nonetheless facially valid documentation.

So my usual and primary advice is to refrain from any action or inaction that puts you in a worse position than the one you find yourself. And I always recommend at least consulting with local counsel before deciding on any course of action.

That usually means you make the payments.

The only other alternative is to file a lawsuit in which you ask to deposit the funds in the court registry because you want to make the payments but you don’t believe the party demanding those payments has any actual legal right to do so.

INTERPLEADER: An interesting twist on this type of pleading could be that you file your lawsuit, asking for attorney fees, and name both the servicer demanding payment and the investment bank (securities brokerage firm(s)) that is/are most likely behind the securitization scheme. This would be an interpleader lawsuit that basically says I have this money, it is for a debt I owe, Party A demands it, but I think Party B might be the one to whom it is owed. I have no assurance from Party A that the money would be given to Party B or any other entity that has paid for the debt and is therefore entitled to receive the proceeds of my payments. I don’t care who gets it. I just want to know who to pay.

In a further twist (which could negate your right to receive attorney fees) such an action could also include a count for disgorgement if the court finds that the party demanding payment was not entitled to receive it. That could mean return or deposit of all money ever received by the parties named as respondents in the interpleader action.

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

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

Federal jurisdiction could apply.

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

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

In all events any attempts at communication or payment that are frustrated by the party demanding that payment should be documented by U.S. Postal Service, Certified Mail, return receipt requested — because your attempts will be denied. The robowitness or affiant on an affidavit will say there is no record of such attempts. LIke the above, an interim measure would be to pay the money into a trust account administered by an attorney or some other legally recognized escrow agent.

I have seen many judges ask the borrower who relates this story what they did with the money after it was refused. If there answer is that they spent it, the judge often construes that as undermining the credibility of the borrower’s testimony. But if the borrower says it was paid into escrow where it still remains most judges regard that in a light favorable to the borrower and it raises their antagonism toward the lawyers and the servicer who are now presumed to have screwed things up even if they were actually entitled to collect, process or enforce the debt.

PRACTICE NOTE: While actual tender of actual payment certainly bars any legal enforcement action to collect the tendered payment, it does not render the entire lien unenforceable. BUT if the notice of default and end of month statements show an amount due that should have been reduced by the amount of the tendered payment then the notice of default and subsequent notice of sale or lawsuit could be defective. And if the refusal to accept payment was part of a larger scheme to steer the borrower into foreclosure, that i sone building block in a case for illegal, fraudulent and/or wrongful foreclosure.

Beware of the proof requirements against a court bias that the borrower was probably trying to game the system. We all know that it is the other side gaming the system but the court presumes otherwise, partly because it is legally required to do so based upon the facial validity of the documents presented — even if they are fabricated. For that reason I frequently suggest attempts at payment or delivery of documents in person at a branch or regional office, witnesses to such attempts, photos, and even video, where it is legal to do so. Signs posted to the effect that there is video surveillance might suffice as permission to record. Check with local counsel.

In addition, in litigation you can demand copies of recordings made at particular locations and/or times. The response will be they don’t have that recording but if you can get a judge to require them to produce the recordings on either side of the time frame in which the contact occurred, they will likely retreat because the absence of the video or audio recording will speak volumes about their conduct.

Filed under: burden of persuasion, burden of pleading, BURDEN OF PROOF, discovery, Discovery -Subpoena, evidence, Fabrication of documents, foreclosure, foreclosure defenses, Pleading, Presumptions, prima facie case | Tagged: ATTORNEY FEES, damages, disgorgement, interpleader, sending documents to servicer, tender of payment, wrongful foreclosure | 1 Comment »

HAPPY HOLIDAYS!!! Now It’s Our Turn.

Posted on December 24, 2019 by Neil Garfield

I would like you to think about the coming year as an opportunity to show your true powers. Everyone has them.

If you have an opinion about the state of our government and politics, then vote.

If you don’t know the issues or candidates, then learn.

If you don’t like your job, then get the help you need to change it.

If you don’t like how you feel about yourself, then associate with those (professional and otherwise) who will reflect back to you your good attributes.

If someone is violating your legal rights (e.g. foreclosure) then fight — or move on to something better.

If you don’t like a relationship you are in then seek to change how you react and proact.

It all starts with you. If you want the world to be a better place, then be a better person as often as you can.

On a more practical note, I want to thank all of the readers, contributors and others who have donated their thoughts, time and money to this blog.

Filed under: foreclosure | 7 Comments »

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

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I provide advice and consultation to many people and lawyers so they can spot the key required elements of a scam — in and out of court. If you have a deal you want skimmed for red flags order the Consult and fill out the REGISTRATION FORM.

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I provide advice and consultation to many people and lawyers so they can spot the key required elements of a scam — in and out of court. If you have a deal you want skimmed for red flags order the Consult and fill out the REGISTRATION FORM.

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I provide advice and consultation to many people and lawyers so they can spot the key required elements of a scam — in and out of court. If you have a deal you want skimmed for red flags order the Consult and fill out the REGISTRATION FORM.

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Get a Consult and TERA (Title & Encumbrances Analysis and & Report) 954-451-1230. The TERA replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).

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I provide advice and consultation to many people and lawyers so they can spot the key required elements of a scam — in and out of court. If you have a deal you want skimmed for red flags order the Consult and fill out the REGISTRATION FORM.

PLEASE FILL OUT AND SUBMIT OUR FREE REGISTRATION FORM

Get a Consult and TERA (Title & Encumbrances Analysis and & Report) 954-451-1230. The TERA replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).

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PLAINTIFF THE BANK OF NEW YORK
MELLON

FKA THE BANK OF NEW YORK
AS TRUSTEE FOR THE
CERTIFICATEHOLDERS CWABS, INC.
ASSET-BACKED CERTIFICATES, SERIES
2006-11