McDonough v Smith: High Court Open Door on Fabrication of Evidence

This decision is extremely important for 2 reasons.

1st, it reaffirms a right under federal law to bring an action for damages for fabrication of evidence.

2nd, and equally important, it establishes that the time to bring such a claim does not start until the conclusion of litigation, whether successful or unsuccessful.

see Article on McDonough v Smith McDonough v. Smith, No. 18-485 (U.S. Jun. 20, 2019)

See U.S. Supreme Court mcdonough-v-smith-5

see 42 U.S.C. § 1983

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.

I am uncertain at the time of writing this as to whether or not any attorney has thought to bring an action for damages based upon this statute. but it certainly seems applicable to foreclosure actions in which assignments, endorsements, notices, correspondence, and even deeds are fabricated for the purposes of obtaining a judgment in court.

[Additional Comments: after analyzing the cases, it would appear that this federal statute provides the basis for a cause of action for money damages and injunction.

However, close analysis of the cases involved strongly indicates that a homeowner will be able to use this statute only if he prevails in the prior foreclosure action.

While many attorneys are bringing wrongful foreclosure claims, and claims based upon fraud, this federal statute is probably an important addition for 2 reasons: (1) the statute of limitations does not begin to run until the case and foreclosure is over and is probably tolled by active concealment; (2) it appears as though the burden of proof might be a mere preponderance of the evidence that fabricated instruments and fabricated testimony were used in the pursuit of a wrongful foreclosure.]

If I am right about the SOL, that eliminates a primary defense of the potential defendants. If I am right about the burden of proof, it makes it far easier to prove a case against the defendants than using a cause of action for fraud.

This statute could be used in conjunction with virtually all foreclosure defenses and which claims of securitization are made and documents are fabricated, robo-signed and forged.

At this point, as any foreclosure Defense Attorney and most pro se litigants can tell you, virtually all foreclosures are based upon some chain of title that includes various alleged transfers or apparent transfers of the subject debt, note or mortgage.

Nearly all such alleged transfers do not exist except for the paper on which a reference is made to an assignment, endorsement, power of attorney or some other document that may or may not exist, and in all probability has been fabricated, backdated, forged and/or robosigned. all such documents are only valid if they refer to an actual event in real life. In connection with loans, the only relevant events are transfers of money. And in real life, in nearly all cases, no transfer of money ever occurred in connection with the execution of documents that were fabricated for the sole purpose of obtaining a foreclosure sale.

if I am correct in my interpretation, the statute could be used to include multiple defendants that might otherwise escape liability for actions alleged in a complaint for damages related to the fabrication of evidence and the use of fabricated evidence in furtherance of the scheme to obtain a wrongful foreclosure.

Great Article on Discovery

While I have often expressed my opinions regarding how to conduct discovery, the article written by Donna Welch, Esq., and Kaitlin L. Coverstone of Kirkland and Ellis LP in Chicago Illinois presents a clearer and more concise blueprint for planning and executing discovery.

see SHAPING DISCOVERY

Some notable quotes:

Have a strategy. Rather than sending a huge number of overly broad requests and deciding later what’s relevant, think ahead about what facts will help you prove your case. If you are the plaintiff, consider what elements you need to prove for each claim and what kinds of documents would help establish those elements. If you are the defendant, approach discovery with your affirmative defenses or counterclaims already in mind. Tailored requests are more defensible if challenged, and can also avoid subjecting your client to equally broad requests. Courts are not fans of scorched-earth discovery with no reason, so be prepared to defend what you think you need and why.

  • Adjust the scope of your requests to the questions at issue. If a particular issue has been resolved and is now off the table, (i.e., through a decision on a Rule 12 motion), make sure the scope of your discovery requests reflects the narrowed scope of the case.
  • Send clear requests. In addition to being tailored, your requests need to be clear. Requests that include vague terminology, multiple subparts, or a series of “and/or” clauses can be unintelligible and make it difficult for you (or the judge) to police compliance. Sometimes it is better to split up a complicated request into multiple separate requests for the sake of clarity. If your opponent objects that requests are vague or overbroad, meet and confer and demand that they explain why. Then, consider whether you can reframe the requests to address the issue without sacrificing what you need
  • Make your objections clear and specific. The need for thoughtfulness also applies to your objections and responses. With recent changes to Federal Rule of Civil Procedure 34, an objection must state whether any responsive materials are being withheld on the basis of that objection. That means that your objections need to be intelligible and defensible. Don’t object to every request as “vague” or “overly burdensome”—courts hate it and you will live by the same objections.
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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Tough Love: Stop Attacking Judges as Stupid or Corrupt.

Without naming names, I recently responded to an email insisting that I take judges to task for “bad rulings.”

I’ve been a trial lawyer for more than 42 years, tried over 2,000 cases and I have reviewed the results of more than 10,000 foreclosure cases. While “bad rulings” are common they are neither produced by incompetence or corruption. Most bias is allowed on the correct premise that everyone has bias. Attacking a judge merely sends warning signals up that produce a response  — protect the judges.

All homeowners who have won have done so by persuasion of the judge — not by a judge becoming a pig digging for truffles. Homeowners and many lawyers misapprehend the role of judges and then criticise judges for failing to act in a manner consistent with what the homeowner or lawyer thinks will best produce a favorable result for the homeowner.

Here is what I wrote in response to that email I received insisting on the issue of corruption of judges.

You are entitled to your own opinion but not entitled to your own facts. Judges sit on the bench because they are there to call balls and strikes. If somebody fails to throw or hit a ball (most often the case in foreclosure defense) the Judge has no choice but to rule for the banks even if the Judge thinks something is fishy.

You are looking at the result and saying it is wrong. And you are correct. But law is about procedure and by definition procedure is right regardless of a bad result. This fact is completely ignored by lay people because it makes no sense to them. AND it is often ignored by lawyers who know better.
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Focusing on bad judges, while there are many, will get you nowhere unless you are piling up “Likes” on Facebook. Focusing on what balls should be thrown or should be hit by foreclosure defenders is where I have achieved success — and everyone else who has done the same thing will attest to the same thing.
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Plain Fact: Banks win because they have an effective legal team and an effective legal strategy. Homeowners lose because they enter the courtroom without any idea of what it means to have a good legal team and no idea about an effective legal strategy. 

Tonight! PMK!! How to Deal With Robo-witnesses In foreclosure Litigation

Thursdays LIVE! Click in to WEST COAST

The Neil Garfield Show

Hosted tonight by Charles Marshall and Bill Paatalo

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

  • Robosigning is the act of placing a signature on a document on behalf of a person who knows nothing about the document, and who probably has no authority to perform the act that appears facially valid on the document.
  • For the same reason that investment banks employ the services of companies who in turn use contract labor as robosignors, the perpetrators (investment banks) employ vendor and “servicers” (who are often in charge of robosigning) have the servicer select a “witness” to testify at trial as the “corporate representative” of the claimant. This is the robo-witness. See no evil. Hear no evil. Speak no evil.
  • The script given to such people is their only instruction on how to act as a witness.
  • No matter how bad it goes on cross examination the witness can neither testify nor admit to facts because the witness doesn’t know them. This limits the risks to the investment bank. And even if perjury is asserted or fraud it appears as the fraud of the “servicer” and not the investment bank who is calling the shots but is nowhere to be seen in the case — UNLESS of course the homeowner brings them in through a counterclaim or makes them relevant through an affirmative defense.

Today on the Neil Garfield Show Charles Marshall and Bill Paatalo will breakdown the topic of PMK aka Person Most Knowledgeable.

Charles and Bill will also address other issues related to the introduction of evidence, the needed standard of proof which courts are supposed to require, and otherwise get out details on how institutional players on the other side of borrowers–be those players on the plaintiff or the defendant side in any given case–all too often get away with using witnesses to successfully enter evidence, when those same witnesses have none of the bona fides evidence law requires, to get the evidence at issue admitted before the court in question.

Bill will greatly illuminate this topic by describing the details of the 2007 Texas Foreclosure Task Force, which 12 years ago looked into the troubling details of this important topic.

 

Help! I need somebody! How to convince an attorney to take your foreclosure case

We are inundated with requests for help. We will try to get to each request in timely fashion but in the meantime perhaps this post will be of some assistance.

Most people start off by bringing to us a case that is already in progress. But for those whose case is just starting this article should prove useful.

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I would suggest that you find a way to bring the central issue, front and center, to wit: that without evidence of ownership of the debt and value having been paid pursuant to Article 9 §203, neither you nor the court can have any confidence that the proceeds of foreclosure, if successful will be used to pay down the debt. In fact, recent evidence suggests that this claimant regularly receives checks from foreclosure sales which it sends to a third party who in turn deposits the money into an account of an entity that does not own the debt and never paid value for it.
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This of course means that all the notices, modifications, negotiations were all a farce. No “investor’ was ever contacted nor was anyone assigned to the task of figuring out a reasonable settlement of the debt because none of the people worked for any entity that had any  financial interest in the success or failure of the loan.
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While most litigators are quick to point out defects in pleadings and proof, they usually fail to couple it with legal argument that such defects mean, by definition, that there is far more than reasonable doubt that the current foreclosure, if successful, will actually result in payment to a real creditor who really owns the debt because they really paid value for it.
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The latter argument is essential as it lifts the defense from a mere technicality to a more substantive defense of pointing out that the foreclosure is being conducted by parties who have no intention or desire to find any creditor, much less pay them.
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The players in your case are probably all securitization players. That means they are engaged in a pattern of fraud and deceit. Unfortunately that doesn’t mean you automatically win. Winning homeowners in foreclosure battles mostly get there by commitment, persistence, courage and patience. The central strategy of the banks is to undermine your confidence in your ability to defeat them. If that doesn’t work they will string you out as long as possible. They use both those strategies because they work. Most people back off or get worn out. Those that stay the course win the case more often than not. 
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As for finding a lawyer I know that is challenging because most lawyers view these cases as losers when in fact, properly litigated, more than 65% are winners. They also view the business proposition as a loser because they think their clients are too poor or unwilling to pay them a fair fee for their services. Our system requires payment for justice even though homeowners can appear pro se.
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Homeowners a reluctant to pay because they also erroneously perceive their chances of success as miniscule and because they erroneously perceive lawyers as part of the system that is rigged to screw them.
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I can help with finding a lawyer but you should not rely on me to do so, especially if you have not ordered any services from us. We also cannot work for free. But more important than finding a lawyer is presenting a compelling case that they can win and from which they can draw remuneration that is equal to the task.
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Preparing a case narrative that is compelling and likely to succeed in court is what we do. Because so many people end up pro se it is imperative that the fundamental reasons why the homeowner should win is presented with clarity and persuasiveness. It is not enough to show why the claimant should lose.
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Pro se litigants and lawyers alike make the error of believing that if they can point out enough technical deficiencies the court will rule in favor of the homeowner.
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No judge is going to feel comfortable ruling for the homeowner if he/she believes that a creditor is going to lose money as a result of the homeowners failure to pay a legitimate debt.
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Every judge starts out believing that the debt exists. Logically they presume that therefore a debtor exists and that is true. It is the borrower/homeowner. Logically they also presume that a creditor exists or at least existed and that is also true.
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So the job of the pro se litigant or attorney is to convince the judge that there is insufficient allegations and/or proof to show that the foreclosure is likely to result in paydown of the debt because the claimant is false and because the claim is false.
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The point, to every judge, is whether the foreclosure will result in payment to a creditor woning your debt. If the judge believes the answer is yes, the borrower/homeowner will either lose or at most simply delay the foreclosure. If the judge  doubts that the debt will be paid through foreclosure then the homeowner wins. Yes, it is as simple as that.
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So if your current attorney is losing interest or you are having problems locating an attorney in the first place then you probably need to order services from us so that we can convince an attorney that your cause is both meritorious and just and convince him/he that he/she will earn a good wage from advocating on your behalf.
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To do that we must perform testing and analysis of your data, like a doctor would do before diagnosing or prescribing intervention or medicine. Then we must structure a blueprint focusing on the facts in your case that will increase the likelihood you getting traction in court.
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In plain language we figure out what might turn the head of thn judge such that they too have questions in their head that they think should be answered. We do that in two parts — our title and encumbrance analysis  (TERA) and then the Preliminary Document Review (PDR) which includes a recorded 30 minute consultation with me. If you have a current attorney, their participation in the telephone consult usually makes the difference between winning and losing or whether or not the lawyer will accept the engagement.
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Generally we suggest that people start with the TERA and then  order the PDR PLUS. TERA looks only at title documents, signatures, notarization etc. while PDR looks at both title documents prepared under our analysis and report and unrecorded notices, pleadings, documentation and correspondence. PDR Basic looks at only a handful of such unrecorded documents. PDR PLUS usually suffices. PDR PREMIUM is generally used when pro se litigants or attorneys are using us to help them prepare for an appearance in court.
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Our Case Analysis is generally used for trial preparation or appeals.
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As a prerequisite to performing any service you MUST submit a registration form that accurately provides as much information as you have in your possession.
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If you want to submit your registration form click on the following link and give us as much information as you can. CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us.
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If you want to order services, after you have submitted the registration form, here are the links:
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CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
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Please visit www.lendinglies.com for more information.
 

Great Article Summarizing Securitization Risks

see http://www.ipsnews.net/2019/06/financialization-promotes-dangerous-speculation/

This was originally hailed as a brilliant financial innovation as US Fed chair Alan Greenspan believed that CDOs transferred risk from banks to investors able and willing to take it on. But securitization not only increased systemic risks, but also did not reduce risk to the originating banks who had sold off the loans.

The US subprime mortgage crisis, which started in 2007, quickly spread, via related CDOs and CDSs, to much of the rest of the financial system and across national borders, with repercussions for the real economy worldwide, not least through trade and other policy responses, including protectionism.

Risks and rewards have increased as collateral is rehypothecated, i.e., used by lenders for their own purposes. Such leveraging allows lenders to become borrowers. Mark-to-market practices, shorting and rehypothecation thus increase risks for the financial system. [e.s.]

CDO losses accounted for nearly half the total losses sustained by financial institutions between 2007 and early 2009, when the collapse of Lehman Brothers triggered a run on global repo markets that triggered banking and European sovereign debt crises.

Financial regulators recognize the systemic significance of these financial developments. Although the Financial Stability Board, created in the wake of the 2008 crisis, identified securitization and repo markets as critical priorities for shadow banking reform, securitization is back on financial development agendas, especially for developing countries.

Illinois Court of Appeals Cracks Code of Silence on Who Pays Foreclosure Mills

The wording of the decision strongly suggests that whether the claimant is US Bank, Deutsch or BONY Mellon et al, the third party who is actually paying the lawyer must be disclosed — at least if the homeowner asks.

Given the nature of the role that the alleged Trustee plays — i.e., none except to give the appearance of institutional involvement — this decision opens the door not only to disclosure but to possibly answering the question of who is pretending to be the creditor.

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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Hat tip Gregg DaGoose

Note that I endorse the reasoning here. The case should not used as authority as precedent except in the 1st District of Illinois. And of course the decision might further appealed.

see  https://jnswire.s3.amazonaws.com/jns-media/32/15/1386226/Margules_v_Beckstedt_appeal.pdf

We conclude that neither attorney-client privilege nor the Rules of Professional Conduct shield the identity of Steck’s third-party client, so affirm the judgment of the trial court and remand for further proceedings.

Relevant here, the citation requested “[a]ll documents evidencing any payments received by [Steck] or any others employed by [him] with respect to any representation of John Beckstedt [or When 2 Trade Group LLC] or by any other individual or entity acting on [their] behalf.” In addition, the citation requested “[a]ll documents evidencing any retainer received or held by No. 1-19-0012 – 3 – [Steck] or any others employed by or in partnership with [him] with respect to any representation of John Beckstedt [or When 2 Trade Group LLC] whether paid by [them] or by any other individual or entity acting on [their] behalf.” Steck, while noting and reserving some objections, denied having been paid by the debtors or anyone purporting to act on their behalf.

Steck responded that he had “no invoices, evidence of payment or other like records” because he had never billed or issued statements to Beckstedt or When 2 Trade. It was in this series of e-mails that Steck first asserted that “any information [he] ha[d] about [his] clients other than When 2 Trade and Beckstedt is privileged, including their identity.” [e.s.]

Attorney-client privilege “must be strictly confined within its narrowest possible limits.” (Internal quotation marks omitted.) People v. Radojcic, 2013 IL 114197, ¶ 41. Generally, the privilege does not protect a client’s identity. Cesena, 201 Ill. App. 3d at 104-05 (citing People v. Williams, 97 Ill. 2d 252, 295 (1983)). Two exceptions have been recognized: (i) where “the client will be prejudiced in ‘some substantial way’ if his identity were disclosed” (id. at 105 (quoting Williams, 97 Ill. 2d at 295)) and (ii) where protection would be in the public interest (id. (citing Shatkin, 128 Ill. App. 3d at 525); see also People v. Doe, 55 Ill. App. 3d 811, 815 (1977) (collecting cases)). The party asserting the privilege bears the burden of establishing that it applies. Shatkin, 128 Ill. App. 3d at 525.

plaintiffs cannot even attempt to put forward “some evidence” until they know the identity of the third party. Steck’s assertion of privilege as to his client’s identity has cut off the litigation before questions about plaintiffs’ evidentiary basis No. 1-19-0012 – 10 – could even be asked. Steck inserted the issue of attorney-client privilege into this case, and as the proponent of the privilege, he must show its application. [e.s.]

In Shatkin, the court recognized that a client’s identity is not protected by attorney-client privilege because “disclosure of the identity of an attorney’s client provides proof of the existence of the relationship, provides the opposing party with proof that his [or her] opponent is not solely a nominal party, and provides proof to the court that the client whose secret is treasured is actual flesh and blood.” (Internal quotation marks omitted.) Shatkin, 128 Ill. App. 3d at 525; see also Doe, 55 Ill. App. 3d at 814.

It follows then that requests could be made in discovery.

The first is whether the named claimant (e.g. US bank) has any retainer agreement with the foreclosure mill.  This is relevant to the issue of an award of fees in judicial foreclosure proceedings.

The second is “all documents evidencing any payments received by [foreclosure law firm] or any others employed by it with respect to any representation of [e.g. US Bank, BONY Mellon, Deutsch] or [e.g. Ocwen, SPS] or by any other individual or entity acting on [their] behalf.” In addition, the request for production should probably include “all documents evidencing any retainer received or held by [foreclosure law firm] or any others employed by or in partnership with it with respect to any representation of [e.g. US Bank, BONY Mellon Deutsch] whether paid by [them] or by any other individual or entity acting on their behalf.”

The third is possibly a subpoena making the same demand for discovery made to the alleged servicer and its predecessors. This is relevant to the issue of whether the named claimant is in fact the real party in interest or, as set forth in the defense narrative, is acting as a sham conduit or front for third party actors.

I Have a Plan Too. Statutory Changes Governing Loans and Foreclosures.

It is currently up to the homeowner to forcefully and convincingly persuade a judge that the party seeking foreclosure is unrelated to the debt and that foreclosure won’t result in paying down the debt — because the proceeds of foreclosure sale, contrary to popular assumption, are not going to any owner of the debt carrying a risk of loss on that debt.

While it is possible to reveal this under current statutes, the burden is unfairly placed on the homeowner to “prove” or reveal a defense to a claim that should never have been filed in the first place.

The fact that the current statutory scheme allows the false claimants to get to second base by fabricating and forging documents is an obvious defect in our current system of laws.

I recently received an email from a contributing reader who was complaining that judges are to blame for the foreclosure mess.

Correction. While judges might share some blame, it was the investment banks who did this, and their control over state legislatures and Congress has fostered an environment of moral hazard.

If you go to a doctor and tell him/her that your left foot  is hurting don’t be surprised if he/she fails to diagnose brain cancer. Maybe the doctor should have or could have discovered brain cancer but he/she had no reason to look.

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In court the judge is there to call balls and strikes. If a homeowner fails to present a viable defense the court is required to enter judgment for the party claiming foreclosure — even if the judge suspects that something is wrong. But is is also true that a judge is supposed to use their own eyes and ears and to determine if there is at least facial validity to the documents being presented. And it’s true that many judges came to the bench with biases that work against homeowners.
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But I can say from personal experience that while some cases are lost due to lazy, biased or even corrupt judges, the primary reason a homeowner loses is that both lawyers and pro se litigants have failed to persuasively rebut the presumption arising from facially valid documents.
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Both homeowners and lawyers often fail to adequately prepare before a hearing and instead focus their minds on why they are right without rehearsing how they will convince a judge that each step is subject to a viable challenge.
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When you go to court the case stops being about right and wrong and becomes a contest of who can be more persuasive. Instead of viewing the judge as an adversary litigants should view the judge as a jury who has no stake in the outcome — because most of them don’t.
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Your real beef is with the statutes that allow legal presumptions to arise from apparently facially valid documents and rules of civil procedure that allow a fake claimant with a fake claim to get to second base before the homeowner can even begin to mount a credible defense. By that time the foreclosure mill has virtually full control over the case narrative.
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While facial validity can and should be attacked, the statutes should be strengthened to assure that the claimant in foreclosure is actually a creditor who has paid value for the debt or has been authorized by an identified creditor who owns the debt.
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The statutes should explicitly require an evidentiary hearing similar to probable cause in which the claimant comes forward with a history of debt ownership and transfer and possession of documents. Nearly all foreclosures should and would fail, often with prejudice, at such a hearing.
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Such a statutory change would maintain the burden of proof on the claimant and prevent shifting the burden of proof to the homeowner who has minimal access to actual relevant data concerning the loan. Such statutory changes would require servicers to disclosure the party to whom they render payment after collection from a homeowner, and whether such party is yet another conduit or servicer and if so, for whom.
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Additional statutory changes should include provisions from the FDCPA and RESPA where a wrongful foreclosure results in an award of compensatory damages including emotional distress, punitive damages, sanctions, and required orders to correct the chain of title and cancel the instruments that were recorded in derogation of title.
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Further, a statutory change and require the claimant itself to be clearly identified would go a long way to curing the current and past tidal wave of wrongful foreclosures. The claimant should be identified as being both the creditor who owns the debt and the party who would be legally liable for courts, costs, sanctions or other relief ordered by a court in favor of the homeowner.
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Current statutes provide the raw material for such remedies but place an undue burden on homeowners who have no access to the information that is being against them and in violation of law.
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But it is currently up to the homeowner to forcefully and convincingly persuade a judge that the party seeking foreclosure is unrelated to the debt and that foreclosure won’t result in paying down the debt — because the proceeds of foreclosure sale, contrary to popular assumption, are not going to any owner of the debt carrying a risk of loss on that debt.

The Truth about US Bank

Lawyers and pro se litigants continue to ignore the basics when mounting a challenge to foreclosures in which US Bank is asserted to be a trustee of a name that is then treated as though it was trust or REMIC Trust. If you look closely, the name is word salad, containing references or names to several named entities and other categories of entities.
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 A typical presentation asserts no presence of US Bank in its individual capacity, so the institutional implication is false. It is appearing strictly in a representative capacity and an court award of costs against the “claimant” would not, according to US Bank, attach liability to US Bank but to rather whoever was being represented by US Bank “as trustee.” On that we have word salad presenting many options such as
  1. US Bank, as trustee
  2. as successor to Bank of America, as trustee
  3. as successor by merger to LaSalle Bank, as trustee
  4. for the holders of certificates entitled
  5. XYZ Corp.
  6. Mortgage pass through Certificates series 200x-a1

If anyone can tell me  from that description who would be liable for costs I applaud them. But I can tell you who would pay the costs regardless of actual legal liability. It would be a company claiming to be an authorized servicer who in fact is getting the money from the investment bank through conduits.

The issue of what if anything was transferred between LaSalle Bank and Bank of AMerica and thus what if anything was transferred between Bank of America and US Bank has actually not been litigated.

My answer is that LaSalle Bank had no duties as trustee, was subjected to the impact of three mergers — ABN AMRO, Citi and Bank of America — and that a trustee only exists for a legally existing trust in which the subject matter (Loan) was entrusted to the trustee for administration of the active affairs of the “trust.” With none of those elements present, nothing could have been transferred.

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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As to U.S. Bank, Deutsch, BONY etc. there are two categories that must be considered. If US Bank is named in a Pooling and Servicing agreement then the reasons for its non existence (or more specifically lack of legal presence in court or any other foreclosure proceeding) in fact and at law remain as previously stated in prior articles —- but exclude one central issue that has not been litigated.
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If US Bank has been asserted as successor to another alleged trustee then all sorts of other issues pop up. The main one that has not been litigated is whether the position of trustee can be transferred or sold like a commodity without consent of the beneficiaries or some other authorized party.
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In truth the only real “beneficiary” would be the investment bank — if only the trust legally existed. And in truth the investment bank indemnified US Bank from liability in exchange for the use of the US Bank name to create the illusion of institutional involvement.
*
And in truth the only real party in interest is the investment bank, and if the trust actually existed the investment bank would be the only real beneficiary in an arrangement in which the trust name is used as a shield or sham conduit to hold bare naked legal title to paper that fabricates the illusion of debt ownership, much like MERS.
*
And of course the whole use of the term “successor” is constantly used to distract lawyers, judges and homeowners from the fact that the previous party had no interest or right to administer, own, or enforce the subject debt, note or mortgage — unless they are able to produce authorization from the investment bank.
*
But the investment banks have been loath to even hint that they could or would issues such authorization because that would be an admission that they were or are the real party in interest — an admission which probably would subject them to many levels of liability for fraud and statutory violations.
*
It may well be that the pursuit of court costs and discovery available to do that might be the achilles heel of this house of imaginary cards. It would reveal the absence of any party to pay them, which would reveal the absence of a claimant, which would reveal the absence of a claim which would reveal the absence of a client, which would reveal false representations by the foreclosure mill.

Tonight! What’s the Point of Foreclosure Defense? MONEY!

Thursdays LIVE! Click into the Neil Garfield Show

with Neil Garfield

or prior episodes

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

Tonight we talk about how to be persuasive in court so that the Judge realizes that the foreclosure might not result in any proceeds being used to pay down the debt. Everything else is important but secondary. Until lawyers and homeowners stop running away from the debt, the majority of foreclosure defenses will fail. Embrace it because they don’t have it.

The point of defending a foreclosure is saving the house or getting compensation for losing the house. Saving the house means defending it. Getting compensation means filing a lawsuit for damages. In nonjudicial states you need to file for a TRO in order to challenge the foreclosure.

The central point of foreclosure defense in the current era is to reveal the fact that the foreclosure will not result in payment of the debt. Everyone seems to think that the central point is to avoid paying the debt. There used to be only one defense to foreclosure: payment. In the current era starting in the late 1990’s there is another defense — lack of payment.

The issue is wrapping your head around something that is completely counter-intuitive. Why would anyone foreclose unless they were looking for money to pay down a debt?

The answer to that question sends most people into a tailspin, stumbling over their own words. In the end the judge doesn’t know what you are talking about and you lose your home unless you present a clear and persuasive reason to prevent foreclosure — namely that the party claiming foreclosure is not in fact the owner of the debt and probably has never seen nor possessed the original promissory note.

That claimant has never loaned any money and they don’t say that they have loaned you money. That claimant has never paid value for the debt, note or mortgage, they don’t say they did. In most cases you were mislead into believing that the Payee named on the promissory note was lending you money.

No the Mortgages Are Not Securities, But the “Certificates” Do Not Qualify for Exemption As “Mortgaged Backed”

For those straining to find a way to categorize mortgage loans as securities I offer this based upon my licensing, training and experience as a Wall Street Broker and Investment Banker and as an attorney who has practiced law, including securities law for over 42 years.

You are climbing the right tree but you are on the wrong branch, in my opinion. Despite possible legal and logical arguments for your point of view there is no way any court is going to take the common mortgage loan and say it is a security, and therefore was subject to regulation, registration, disclosure and sales restrictions. And the secondary market does not rise to the level of a free exchange. While loans appear to be traded under the guise of securitization they are not actually traded.

BUT
I like your reasoning when applied to (a) certificates issued by investment banks in which the investment bank makes promises to pay a passive income stream and (b) derivative and hedge contracts issued on the basis of deriving their value from the certificates.
*
The specific challenge I think should be on the status of the certificates or “bonds” issued by the investment banks. If securitization in theory were a reality then under the 1998 exemption they would not be treated as securities and could not be regulated.
*
That would mean that the fictitious name used by the investment bank was a real entity, an existing Trust (or special purpose vehicle) (a) organized and existing under the laws of some jurisdiction and (b) the trust actually acquired loans through (i) purchase for value or (ii) through  conveyance from a trustor/settlor who owned the loans, debts, notes and mortgages.
*
But that isn’t what happened in practice. The entire business plan of the investment banks who participated in this scheme was predicated on their ability to sell the loans multiple times in multiple ways to multiple layers and classes of investors, thus creating profits far in excess of the amount of  the loan.
*
Right now each of those sales is considered a separate private contract that is (a) separate and apart from the loan agreement and (b) not subject to securities regulation due to exemption under the 1998 law that does not allow securities regulation of mortgage-backed instruments.
*
So the goal should be to show that
*
(a) the securitization scheme was entirely based on the loan agreement under the single transaction and step transaction doctrines and therefore was not separate from the loan transactions
*
(b) the certificates or bonds were not mortgage-backed because the holders have no right, title or interest to the loan agreements, debts, notes or mortgages and
*
(c) the derivative and hedge contracts deriving their value from the certificates were securities based upon the certificates (“bonds”) that are more in the nature of warrants and options on the value of the certificates rather than any direct interest in the debt, note or mortgage of any borrower.
*
Hence both the certificates and hedge contracts and all other derivatives of the certificates would be subject to regulation as securities. Based upon information I have that is very suggestive although not conclusive, it appears that the Internal Revenue Service has already arrived at the conclusion that the certificates are not mortgage-backed and the trusts are not viable entities because in order to have a valid trust it must have assets and active affairs. It must also have identifiable beneficiaries, a trustor etc.
*
None of those elements are present or even alleged or asserted by the lawyers for the foreclosure mills. The only “beneficiary” is the investment bank, not the certificate holders who all expressly or impliedly disclaim any right, title or interest in the loans, debts, notes or mortgages and have no right to enforce. This has already been decided in tax court. The owners of certificates are not the holders of secured debt.
*
There is no “res” or “thing” that is entrusted to the named Trustee of the so-called REMIC Trust for the benefit of identifiable beneficiaries. There is no settlor who conveyed loans to the Trustee to hold in trust for identifiable beneficiary except that as a catch-all the investment bank is named as beneficiary of any title to anything that might be attributed to the trust, if only the trust existed.
*
Attacking this from the top down is the job of regulators who refuse to do so. But the attack can occur from the bottom up in courts. As shown above, in any case where a trust is referenced in a foreclosure there is no legal standing. That is there is no existing entity that owns the debt. The investment bank funded the origination or acquisition of the loan but contemporaneously sold off the value of the debt, the risk of loss, the cash flow and other attributes of the loan.
*
The notes had to be destroyed and a new culture based upon images had to be put in place even if it violated law. The problem with the courts is not that they don;t get it; I think a lot of judges get it but don’t like the outcome of applying the law as it currently exists. So they wink and nod at fabricated notes, assignments and endorsements.
But those same judges, when confronted with unexplained deficiencies are forced to rule in favor of borrowers. And they do. This would best be done in mass joinder, class action or some other vehicle where resources could be pooled, but the procedural deck is stacked against such efforts.

===============================
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.
========================

Veira v PennyMac and JPM Chase 4th DCA Finds What Everyone has Known all along — that PennyMac never has standing and Chase, most of the time, doesn’t have standing

Another case showing shifting attitudes toward illegal foreclosures. At the trial level there have been many such decisions, some with an expanded finding of fact showing that the foreclosure was a sham. On appeal, the courts were always looking for ways to sustain the foreclosure; they still do that but more and more appellate courts are starting to understand that there is no party who has standing in most instances — especially a creditor who actually paid value for the debt.

Note how they instruct that judgment must be entered for the borrowers — not dismissal.

And the other thing is that PennyMac is generally a sham in foreclosures. It doesn’t own the debt, it doesn’t own the mortgage, it doesn’t own the note and it probably doesn’t even own the servicing rights.

The big issue continues to be missed. Pleading is different from proof. Asserting standing may meet the requirements of pleading. Proving standing is all about whether the party claiming to be the creditor is the owner of the debt who has paid value for the loan. The presumption arises if the claimant has possession of the original note (if it really is an original and not a fabrication).

The presumption can be rebutted by simply showing that the indorsement was a sham and the assignment of mortgage was sham because there was no transaction in real life in which either party received or paid any money or other value for the loan. Article (§203 UCC prohibits enforcement of the mortgage under those circumstances.

It is black letter law in all jurisdictions that an assignment of mortgage without an actual transfer (purchase and sale of the debt) is a nullity precisely because all jurisdictions have adopted Article 9 §203 UCC.

“However, although the statute makes clear that an assignee has the “same means and remedies the mortgagee may lawfully have,” we have previously held that “[t]he mortgage follows the assignment of the promissory note, but an assignment of the mortgage without an assignment of the debt creates no right in the assignee.” Tilus v. AS Michai LLC, 161 So.3d 1284, 1286 (Fla. 4th DCA 2015) (citing Bristol v. Wells Fargo Bank, Nat’l Ass’n, 137 So.3d 1130, 1133 (Fla. 4th DCA 2014) );”[e.s.]

see VIEIRA v. PENNYMAC CORP | FindLaw

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.
========================

Interesting quotes for foreclosure defense lawyers. As usual with PennyMac, the search was on for the “lost” note, which we all know was destroyed contemporaneously with closing.

The allonge was undated and contained a signature by a JP Morgan representative, but no signature by a Chase Bank representative. The JP Morgan witness could not say when the allonge was executed or when it was imaged into any system.

we perceive the critical issue to be whether sufficient proof was presented at trial to show that Chase Bank transferred the note to JP Morgan, the original plaintiff, prior to suit being filed.

 

Through the JP Morgan witness, PennyMac also introduced into evidence the assignment of mortgage from JP Morgan to PennyMac.

Because it was substituted as plaintiff after suit was filed, PennyMac had to prove at trial that JP Morgan had standing when the initial complaint was filed, as well as its own standing when the final judgment was entered. Lamb v. Nationstar Mortg., LLC, 174 So.3d 1039, 1040 (Fla. 4th DCA 2015). Throughout the proceedings below, the note was lost. Thus, PennyMac had to prove standing and the right to enforce the note, using section 673.3091, Fla. Stat. (2017). Section 673.3091(1)(a), requires in part that “[t]he person seeking to enforce the instrument was entitled to enforce the instrument when loss of possession occurred, or has directly or indirectly acquired ownership of the instrument from a person who was entitled to enforce the instrument when loss of possession occurred.” (emphasis added).

Standing may be established by possession of the note specially indorsed to the plaintiff or indorsed in blank. Peoples v. Sami II Tr. 2006–AR6, 178 So.3d 67, 69 (Fla. 4th DCA 2015); § 673.2031(1), Fla. Stat. (2017) (“An instrument is transferred when it is delivered by a person other than its issuer for the purpose of giving to the person receiving delivery the right to enforce the instrument.”); § 673.2031(2), Fla. Stat. (“Transfer of an instrument, whether or not the transfer is a negotiation, vests in the transferee any right of the transferor to enforce the instrument ,including any right as a holder in due course ”).A plaintiff may also prove standing “through evidence of a valid assignment, proof of purchase of the debt, or evidence of an effective transfer.” Stone, 115 So.3d at 413 (quoting BAC Funding Consortium Inc. ISAOA/ATIMA v. Jean–Jacques, 28 So.3d 936, 939 (Fla. 2d DCA 2010) ). That is because “if an instrument is transferred for value and the transferee does not become a holder because of lack of indorsement by the transferor, the transferee has a specifically enforceable right to the unqualified indorsement of the transferor ” § 673.2031(3), Fla. Stat.

there are problems with PennyMac’s “multi-tiered evidence” arguments. First, it is unclear in what way Chase Bank and JP Morgan are “related entities.” No evidence was presented that JP Morgan and Chase Bank merged or that Chase Bank was completely bought out by JP Morgan. As we have made clear in the past, separate corporate entities, even parent and subsidiary entities, are legally distinct entities. See Wright v. JPMorgan Chase Bank, N.A., 169 So.3d 251, 251–52 (Fla. 4th DCA 2015) (noting a parent corporation and its wholly-owned subsidiary are separate and distinct legal entities and a parent corporation cannot exercise the rights of the subsidiary corporation); see also Houk v. PennyMac Corp., 210 So.3d 726, 734 (Fla. 2d DCA 2017) (noting a conflict of allegations between affidavits and the complaint where the affidavits alleged PennyMac Loan Services, LLC was the servicer and the complaint alleged PennyMac Corp. was the servicer). There was no explicit testimony or other evidence that Chase Bank sold or equitably transferred the note to JP Morgan.

The major stumbling block is that the allonge was signed by a representative of JP Morgan, and there is no signature on the document by Chase Bank. Section 673.2041, Florida Statutes (2017), clearly requires a signature by the current note holder to constitute an indorsement and transfer of the note to another payee or bearer. § 673.2041, Fla. Stat. (“The term ‘indorsement’ means a signature for the purpose of negotiating the instrument [or] restricting payment of the instrument.”). We have previously said, “[t]o transfer a note, there must be an indorsement, which itself must be ‘on [the] instrument’ or on ‘a paper affixed to the instrument.’ ” Jelic v. BAC Home Loans Servicing, LP, 178 So.3d 523, 525 (Fla. 4th DCA 2015)(second alteration in original) (emphasis added)(quoting § 673.2041(1), Fla. Stat.).

 

Not all courts are ignoring the law. Some are ruling for homeowners based upon basic premises contained in my articles

Total hat tip to Bill Paatalo

There are two takeaways of major significance here.

  1. Review of electronic records is not review of original records.
  2. POssession of note does not mean that debt was paid for or transferred.
    We’re getting closer and closer to the truth when the high courts begin to demand and require proof; a burden they cannot meet.

    Plaintiff similarly failed to establish its standing by demonstrating that it had physical possession of the note at the time of the commencement of the action. In support of its motion for summary judgment, plaintiff submitted, among other things, a copy of its complaint, the mortgage, the unpaid note (indorsed in blank), the relevant assignments of the mortgage and proof of defendants’ default. Plaintiff also tendered the affidavit of the authorized officer for Caliber Home Loans, Inc., the mortgage loan servicing agent and attorney-in-fact for plaintiff [FN3]. The affidavit of the authorized officer indicates the source of her knowledge to be her “review of the electronic records of Caliber Home Loans, Inc.” regarding defendants’ delinquent account, which includes, among other things, “electronic images of the note and electronic records maintained by Caliber Home Loans, Inc.” Other than alleging that she reviewed these electronic records, the authorized officer’s affidavit fails to provide any indication that she actually examined the original note, nor did it provide any details with regard to whether plaintiff ever obtained possession thereof and, if so, how and when it came into its possession (see Wells Fargo Bank, N.A. v Walker, 141 AD3d 986, 988 [2016]; JP Morgan Chase Bank, N.A. v Hill, 133 AD3d 1057, 1058-1059 [2015]). Moreover, the complaint is equivocal and alleges in the alternative that plaintiff is “the current owner and holder of the subject mortgage and note, or has been delegated the authority to institute a mortgage foreclosure action by the owner and holder of the subject mortgage and note.” Such language is insufficient to establish that plaintiff had [*2]physical possession of the note at the time it commenced this action (see Bank of Am., N.A. v Kyle, 129 AD3d at 1169-1170). [e.s.]

    Defendants also specifically sought discovery with respect to when plaintiff took physical possession of the original note, from what entity it received it, what it paid for same, as well as “a first generation copy of the original [n]ote and all original [a]llonges to the note” and “evidence of the physical transfer of the original [n]ote from origination to its current location.” Plaintiff, however, failed to provide any discovery prior to filing its motion for summary judgment. Accordingly, inasmuch as the proof submitted was not sufficient to establish that plaintiff had standing through assignment or actual physical possession of the note at the time it commenced the instant mortgage foreclosure action, plaintiff failed to demonstrate its entitlement to summary judgment. Rather, Supreme Court should have compelled plaintiff’s disclosure of the original note pursuant to defendants’ discovery request prior to granting plaintiff’s motion for summary judgment (see JP Morgan Chase Bank, N.A. v Hill, 133 AD3d at 1058-1059; compare Green Tree Servicing LLC v Bormann, 157 AD3d 1112, 1115 [2018]; Bank of N.Y. Mellon v McClintock, 138 AD3d 1372, 1374-1375 [2016]).” [e.s.]

    Bill Paatalo
    Oregon Private Investigator – PSID#49411

    BP Investigative Agency, LLC
    Mailing Address:
    476 LaBrie Drive
    Whitefish, MT 59937
    Office: 1-(888)-582-0961

 

Finding a Lawyer to Win Foreclosure Cases

No lawyer is an expert in everything. Every case is a learning experience for the lawyer. That includes me despite my extensive background in law and finance. All successful litigators will tell you that there is a subjective factor is the deciding issue in all litigation — passion, persuasiveness and knowledgeable plan of the litigator to get to a desired result.

In foreclosure litigation the banks have totally succeed in getting almost all members of the legal profession, including jurists, to believe that foreclosures are serving a useful function for society because they preserve the sanctity of contract.

Lawyers must start off with knowledge of what really happened, not hypotheticals and seem to corroborate claims of technical defects in the documents and testimony used to obtain foreclosure. Specifically they need to have detailed knowledge of property law, contract law, bills and notes (negotiable instruments), enforcement of security instruments, SEC rules and the use of SEC.gov, securities underwriting, trading in unregulated securities or contracts, and the actual chain of events in the real world. Without that kind of research and investigation, the layer is limited to attacking a few technical aspects of the claim brought against the homeowner.

For those who use this knowledge, thousands of homeowners have won their cases and tens of thousands of homeowners have settled cases under strict seals of confidentiality.

For the  public they assume that when they go to a lawyer that he or she understands every aspect of Wall Street finance and all the other factors described above. This is not true nor could it be true. There are some lawyers who have sufficient working knowledge to know that current foreclosures almost never pay down the debt when the foreclosed property is sold. They know that the parties initiating foreclosure are using fictitious names, documents, claims and testimony and they attack the case on those grounds. More often than not (65% in my my estimation) they win the case or settle it on terms that are entirely satisfactory to the homeowner.

But even the judges who rule for homeowners do so out of duty rather than belief that the judicial system has been unfairly weaponized by players representing Wall Street interests. Judges, and truth be told most borrowers and their attorneys believe they really have a debt to pay and that the chain of people who are seeking foreclosure contains someone who owns the debt and who will receive  the proceeds of sale as a paydown of the debt originated when the mortgage documents were signed.

The lawyers who “get it” are in high demand and float in and out of availability; and they get become increasingly choosy as to which cases to accept. They are also expensive. To my knowledge, winning cases has ranged from as low as $10,000 in fees and costs to a high, so far, of over $200,000. The average, based upon fee awards appears to be between $40,000 and $60,000. In our system of justice it is rationed based upon a claimant or defender’s ability to pay for costs and fees.

Most lawyers view foreclosure defense as a losing proposition. First they correctly assume that their prospective clients lack the resources or willingness to fully litigate the case. The bank playbook contains a simple strategy of using every rule in civil procedure to wear down, discourage and even intimidate or ridicule the homeowner or the lawyer for the homeowner. They almost never settle early which means persistence and expense must be pursued to the 11th hour. Their initial offers are designed to produce a feeling of despair in the homeowner and their lawyer. They use this strategy because it works. Most people walk away, dejected.

Most people lack the financial resources to fight the foreclosure “to the mattresses.” So what homeowners should be looking for are lawyers who are willing to work on a mixed retainer of fees, paid up front, hourly billing and a contingency fee. If the case is litigated to conclusion successfully there is a good prospect of securing an award of damages and even fees for wrongful foreclosure, breach of statutory responsibilities and breach of common law duties.

In order to get to the point of winning a homeowner has two choices. First they can pay the lawyer to do all the research, interviews and analysis necessary to develop strategies and tactics for a result in which he or she truly believes can and should win. This can be very expensive even with lawyers who have some familiarity with securitization and foreclosures by or in the name of “trustees for “REMIC Trusts” based upon fabricated, forged and robosigned documentation.

That is where we come in. I got into this to provide a bridge between the homeowner, who knows virtually nothing other than some snippets on the internet, and the lawyer who wants a winning case and to make a high profit from representation of a homeowner who is being unlawfully attacked by strangers, pretenders lenders. Because of our knowledge base I am able to provide drafts of pleadings, discovery, motions, strategy   and tactics on a fraction of the time that it would take a lawyer with n little or no familiarity with the facts and the law governing these real and false transactions.

My usual advice is to obtain preliminary information from us, have us prepare a summary report of the issues and how to beat them, schedule a CONSULT with the lawyer and “sell” the lawyer on taking the case and on taking some guidance and direction from us, subject to his ultimate decision making in consultation with the homeowner as his client.

These cases are won based upon aggressive litigation performed by an experienced litigator. Don’t send a dermatologist to do brain surgery. Don’t send a brain surgeon to perform skin grafts. The judicial climate is weighed so heavily against homeowners that selling the really good lawyers on taking your case is going to be a challenge, but I can tell you where to look. Personal injury lawyers are very accustomed to going into knock down battles with larger forces like insurance companies. Even young PI lawyers usually have good courtroom experience and access of investigators. Other lawyers whose name appears on decisions favorable to homeowners might also be a stop.

But all lawyers are concerned about the prospective client’s willingness and capability to pay, the need to do extra hand holding that is difficult to bill for the time spent, and the efficacy of the case. No lawyer wants to go out and lose a bunch of cases.  Clients are cautioned to remember that the lawyer is not a ter paist and has no obligation to listen to how much you are upset or hurting except when the claim of intentional infliction of emotional distress arises. But such claims ordinarily arises AFTER you beat back their attempt to foreclose.

Yes I have contact information on hundreds of lawyers. But they are subatomic particles who float in an out of existence in the foreclosure defense market. My recommendation of a case usually causes the lawyer to at least look at it. But that is no guarantee that the lawyer will ultimate decide to accept it.

Many lawyers are asking me to do the initial vetting and recommendations. I can do that. What homeowners must realize is that while I am extensive general knowledge about the workings of foreclosure, securitization and Wall Street Finance, I don’t know (a) the particulars of their case. (b) the procedural status of the case and (c) the current likelihood of success based upon events leading up to this date. So I cannot formulate a recommendation that will have any credibility with potential attorney until I have done that work and provided a blueprint for defense strategies and tactics.

This is why I offer the following four simple services, for which you would otherwise get charged far more money if you hired a new attorney to perform the work. And I often get retained to do the actual drafting of pleadings, motions, discovery and preparation memos for appearances in court. But this ONLY happens when I know the details of the specific case.

Tonight! Two Big Topics on the Neil Garfield Show

Thursdays LIVE! Click in to current episodes of

Co-Hosts Charles Marshall and Bill Paatalo

or prior episodes

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

*******************************

 

Today’s Show involves two important topics:

1. First Circuit US Court of Appeals case, Thompson v. Chase, in which the appellate court reversed the lower district court, essentially strictly construing the Mass. judicial foreclosure statutory framework.

2. Real Estate brokers are being used as institutional stand-ins for certain evidentiary purposes, particularly in non-judicial foreclosure states like California. Bill Paatalo has a great blog item about this issue, on his blog, from May 17, 2019. Gives the appearance of real estate brokers paying illegal referral fees to sub-servicers, in violation of the Real Estate Settlement & Procedures Act (RESPA). Details to follow on today’s Show.

EDITOR’S NOTE: I have it on good authority that both real estate brokers and especially mortgage brokers executed indorsements of the note shortly after loan closings. Isn’t that interesting? It explains a lot about the illegal bonuses and compensation that was not disclosed to borrowers.

See MA Appeal Win – Chase foreclosure invalidated

This is an interesting case. In my mind this decision harkens back to the day when all elements of a claim in foreclosure were strictly construed — as a matter of public policy. The  conesus of everyone including the judiciary was that if someone is going to lose their homestead, that is a draconian remedy that is the judicial civil equivalent of capital punishment in criminal law.

*
I did hundreds of foreclosures when I was younger and I occasionally got sloppy. Even if the motion for default or for judgment on default was unopposed, the Judge would carefully review the paperwork. If the Judge found anything amiss, I would lose my motion and be required to come back and refile it with corrected documents. I know of situations where after a few tried the judge dismissed the case with prejudice without any filing or appearance of the homeowner in person or through counsel.
*
This case seems to stem from the same line of thinking, veering away from the the paradigm shift in judicial consensus that all foreclosures are probably valid. Defensive claims from the bank against the borrower’s defenses and claims cannot be based upon a showing or absence of an allegation of harm. In order to force title to be taken away from the homeowner, any claimant must be in strict compliance with the documentary provisions AND statutory provisions  governing foreclosures. I would add that the implied covenant of good faith is part of any agreement and that would include loan agreements.
*
The only problem I noticed was the court’s assumption that Chase became the mortgagee, which is a major victory for Chase considering the fact that Chase did not become  the mortgagee in fact or in law. It was presumed that Chase was the mortgagee because it was presumed that WAMU owned the subject loan at the time of the Purchase And Assumption Agreement on 9/25/08.
*
There is no evidence that WAMU owned any such loans and in fact all evidence points to the fact that virtually all loans in WAMU was the proxy of an investment bank or the “originator” of the loan were either presold before the loan closing (into the secondary market) (i.e., they were funding by third party lender) or contemporaneously sold to an investment bank acting through conduits, in this case probably Credit Suisse. By the time Chase took over WAMU it was acquiring — at best —servicing rights. There was no mortgage loan schedule nor any assignments of mortgage.
*
The importance of this error should not be overlooked. The reason is that while strict compliance helps homeowners it does not remove the bias of the judges who believe that the claimant is attempting to recover losses on a debt which it owns.
*
Unless Credit Suisse (or whoever was the investment bank) (a) establishes privity with WAMU and (b) establishes it still has a financial interest in the debt, the judicial bias is misplaced.
*
But the bias still exists; and as long as judges believe that the defense did not reveal an inherent flaw, indeed fraud, judges will continue to believe that all defenses are an attempt to get free from an perfectly valid debt. Like all judges, if they perceive a party who SHOULD win, in their estimation, they will make rulings to support a final decision in favor of the party who they think should prevail.

Right in Front of Our Eyes: Black Knight and U.S. Bank

Anyone who knows about foreclosure litigation and securitization of residential debt knows that the only way the banks could succeed is if they had a central repository and central command center from which all documents were fabricated and all instructions were issued.

For nearly all loans the central command was Lender Processing Systems, aided by DOCX. While DOCX is technically defunct and Loraine Brown went to jail taking one for the team, the functions of LPS remained the same.

LPS  changed its name to Black Knight and in a PR coup transformed itself into the publisher of what is largely viewed as comprehensive data on mortgage lending and foreclosures.

Hence it went from the purveyor of false, fraudulent, forged documentation to the purveyor of data perceived as reliable and thence became a trusted source whose data is considered worthy of legal presumptions.

Systems at LPS/Black Knight include data processing on virtually all residential loans subject to claims of securitization many of which are represented by data on the MERS  Platform which is a workaround to hide separate split transfers of the debt, the note and the mortgage or deed of trust.

The systems on LPS/Black Knight are designed for the the express purpose of presenting consistent data in foreclosure claims. As such it also enables the rotation of apparent servicers, none of whom perform bookkeeping functions even if some of them interact with borrowers as if they were actually the servicers.

The rotation of servicers comes with the false representation and illusion of boarding in which the process is falsely represented as meaning that the new servicer inspected, audited, reviewed and input the data into their own system. None of that occurred. Instead the new servicer merely gained access to the same LPS system as the last servicer with a new login and password.

All evidence shows that the functions for fabricated, forging and robosigning documents continue to be performed under the direction of LPS/Black Knight which receives all instructions from various investment banks who have each started their own securitization scheme masking apparent trades in the secondary market for loans and trades in the shadow banking market where “private contracts” are regularly traded without any securities regulation.

Far from dropping their connection with LPS/DOCX the major banks have completely embraced this central repository of all loan data, all of which is subject to manual and algorithmic manipulation to suit the needs of the banks; thus they produce a report that creates the illusion of credibility, reliability and even independence even though none of those things are true.

So now U.S. Bank is further embracing LPS/Black Knight technology in the form of “Empower” for loan originations. U.S. bank is of course the major player whose name is used in foreclosures despite the fact that it has no interest in the loans and does not receive one cent from foreclosure sales of property. It merely receives a royalty for the use of its name as part of a fictitious name of a nonexistent trust which is falsely represented to have engaged in a transaction in which the trust acquired the debt, note and mortgage on multiple loans.

This deal furthers the PR myth. It strengthens Black Knight as having the attributes of a legitimate player when in fact it is a central figure in the greatest economic crime in human history.

see https://www.prnewswire.com/news-releases/us-bank-expands-relationship-with-black-knight-to-correspondent-and-hfa-lending-channels-on-empower-loan-origination-system-300859760.html

US Bank will implement the Empower LOS to manage loans purchased via its correspondent and HFA lending channels. The bank already uses Black Knight’s MSP servicing solution which integrates with the LOS; and its artificial intelligent virtual assistant AIVA.

“Aligning with Black Knight’s Empower for our Correspondent and HFA business serves our forward-looking vision of providing innovative capabilities that advance the lending process and provide a better client experience,” said Tom Wind, executive vice president, US Bank. “Expanding our enterprise relationship with Black Knight allows us to enhance our digital capabilities and customer experience throughout the entire homeownership cycle.”

 

How the loan was sold multiple times.

 

THE CLAIM FOR HOMEOWNER ROYALTIES

It is like any hedge contract. The buyer of the hedge contract is the investment bank, sometimes working through sham conduits. It is saying it wishes to ensure stability of its “portfolio.” It provides triple agency rating and “insurance” from AIG for instance while at the same time buying insurance from  AIG based on the premise that hedge funds are selling hedge contracts. It looks like a safe bet as long as you don’t peek under the hood where you see that the debt, note and mortgage were split at inception and the enforcement of the debt, note and mortgage is at best a long shot if all the facts are revealed.

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The hedge funds and insurance companies make money because they are receiving fees from the investment bank for assuming the risk. It’s income pure and simple. The risk is seen as nonexistent. But in fact a small move in the value of the certificates whose value is entirely derived from the investment bank’s promise to pay certificate holders is a discretionary promise controlled exclusively by the vinestment bank. So Goldman can reduce payments and cause the certificates to decrease in value thus triggering the insurance and hedge contracts. Goldman can also, in its sole discretion declare that the value has reached the trigger point. And the counterparties expressly disclaim subrogation or any claims to the certificates, debts, notes or mortgages.
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In many cases the initial hedge contract was created for the highest tier of the tranches containing AAA rated mortgages. But the tier 1 tranche had received fees for issuing a hedge contract on the lowest tranche. The certificates were based upon the value of the tranche including the hedge contracts which investors thought were exclusively to protect the Tier 1 tranche but in fact contained a commitment to absorb losses for the Z tranche that contained 15% mortgages. So the modest but lucrative fees paid to hedge funds to assume the risk for stabilizing the Tier 1 tranche was in fact a guarantee of the entire Z tranche.
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When Z tranche failed as everyone knew it would, it took down the tier 1 tranche and through similar devices the entire issuance of that “trust” was reduced to rubble with investment bank getting the full amount of the investment (by certificate investors) paid to the investment bank (not the certificate investors) in mortgages that had (a) not failed and (b) did not have nearly the effect on perceived loss of value that was reported.
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Hence the investment bank sold, using the trust name as a fictitious name for the investment bank, to the investors who bought certificates whose value was perceived as derived from “underlying mortgages” and then sold again the same mortgages under guise of hedge fund and insurance contracts. In fact the value of the certificates was entirely derived from the value of the promise made by the  viestment bank with no right, title or interest to the indexed fictitious portfolio of debts, notes and mortgages arising out of the origination of or acquisition of residential mortgage loans.
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When the credit market collapsed (nobody was willing to trade in derivatives) Goldman and others had insurance contracts pending with AIG et al. The bailout was used to fund AIG so that GOldman could receive $150 Billion on losses never incurred by Goldman and which were never attributed to anyone who might be construed as having purchased the debt. Goldman was not lobbying to recover losses made from risky investments. Goldman was lobbying and did so successfully in protecting a windfall expectancy from hedge contracts and insurance procured through false pretenses. Losses on the loans had nothing to do with it.
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Goldman and Citi were successful at manipulating the story. TARP and FED and US Treasury and FDIC bailouts were at first predicated on losses caused by defaults on mortgages. But that is only part of the story. Mortgage Defaults actually were not a major cause of any collapse except in a few instances that Goldman PR seized on to make it appear that was what was happening marketwide. Most mortgage debt and all risk of loss had been sold multiple times. There simple was no owner of any debt in which the claimed “holder” had an pecuniary interest. Hence today we have no creditor — a proposition that virtually everyone finds unacceptable.
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So TARP evolved from Troubled mortgages to troubled Certificates. And when the promise was revealed to come not from homeowners but form the investment banks, TARP evolved again into a generic ill-defined “troubled asset ” classification that meant anything the banks decided. The stuff that simply could not be reconciled was put into the maiden lane entities and then later recycled out as new securitizations as though there was nothing wrong with the inherently defective and illegal nature of lending, servicing, selling and profiting from the sale of loan products that were guaranteed to fail in many instances and whose failure was central to the bank business model in which they would profit from the failure.
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What I am saying is that the infrastructure for all of that was established before the loans were made. That infrastructure and the expectancy of windfall revenues and profits from the origination or acquisition of loans was absolutely essential (condition precedent) to granting loans, whether they were viable or not. The funding of the loan was essential to getting the borrower’s name, signature and reputation as well as their house as collateral. Without that all the tranches, insurance contracts, hedge products and more advanced derivative products were never have been written, much less sold. This process did not, as was advertised, diversify risk. It concentrated it on borrowers, government and investors in that order.
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Note that the banks are left out of that equation because they were intermediaries as it relates to risk and they were principals as it relates to profits. It is my contention that this was an implied contract in which the homeowners should be compensated for their essential part and focal point, but for which the rest of the scheme, undisclosed to borrowers, could not have occurred.
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Consulting with insiders the average gross revenue from the loan of $1 was between $10 and $20 dollars. So for an average loan of $250,000 the gross revenue was in excess of $2, 500,000 and frequently topped $5,000,000. The average was $8,000,000. Royalties and license fees usually run from as low as 1.5% to an average of 6% and are applied to gross revenues. The implied contract that included the borrower and the investment bank thus computes as $480,000 plus statutory interest which at this point would average around 9% per year for an average of $43,200 per year for an average of 10 years or $432,000. Hence the value of the claim by each borrower is on average $900,000 for each $250,000 loan.
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In addition there exists a further claim for recovery of all undisclosed compensation as outlined above amounting to several times the above estimate. this presents an unparalleled profitable opportunities to good litigators. Pro se litigators are not invited. The theory is simple and if presented correctly will almost definitely survive a motion to dismiss and could be the subject of mass joinder, class action and even Qui Tam relief.
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While a DC group is forming I would be willing to help in the creation and development of a new group whose sole focus was on this theory.

Partial Transcript from Last Night’s Neil Garfield Show on Attacking Facial Validity of Documents Used in Foreclosure

Hello, Neil Garfield here and this is Thursday May 30, 2019. As everyone knows who is involved in foreclosure litigation, things are not what they appear. And revealing the absence of facts that would constitute legally required foundation for the introduction of key elements of a case is the key to beating back fraudulent foreclosures. Every lawyer should carefully examine the cases on facial validity. They frequently go to the heart of the claim.And revealing the absence of facial validity creates a strong argument against the legal presumptions, without which the banks cannot prevail.
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Tonight I talk about the specific ways you can challenge the facial validity of the loan documents, assignments, foreclosure complaint and notice of substitution of trustee, notice of default and notice of sale. Remember this is all being recorded and you can always come back to this recording or any of our other shows by going to blogtalkradio.com and searching for the NeilGarfield Show. 
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I’ll be revealing tonight the specific structural analysis I use and which the LivingLies team uses under my direction to analyze the facial validity of documents that are being used to initiate fraudulent, yet legally effective foreclosures and sales of property. If you don’t challenge it the foreclosure becomes legal, valid and enforceable in unlawful detainer or eviction.
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And remember despite what you might hear from those who are not regulated licensed professionals ONLY a court order can stop a foreclosure or foreclosure sale; and that order, contrary to what I have seen on the internet, must say that the foreclosure is dismissed, vacated or stayed and not just contain general  rulings about the pendency of the current action.
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You can ONLY get a court order by filing a lawsuit or a motion in court depending upon the type of proceeding that has started. There is no letter or notice that stops the foreclosure even if its recorded, although recording it does potentially cloud title for the foreclosing party.
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As usual I have two things to talk about relating to this topic and foreclosures in general.
If your lawyer cannot explain a successful defense to you so that you understand it and believe it then it is not likely that the lawyer will have any greater success with the judge. I continually have reminded my associate attorneys and attorneys who come to me for litigation assistance that lawyers must have a clear picture of why their client should win.
Otherwise the lawyer seems disinterested, apathetic, uninteresting and not persuasive even when they are technically right on everything they are saying in court.
The judge falls asleep and rules based upon the more compelling argument inc court which usually involves specific citations to specific law contained ins statutes and cases.
If the lawyer has not explained clearly why you should win such that you understand it and are persuaded that you should win, the appropriate response is to say that you want the lawyer’s argument,ent to be more clear and more persuasive. Firing the lawyer merely sends you down the road of going from lawyer to lawyer.
The second thing that I want to talk about is the new theory of action for compensatory damages or equitable distribution arising from the the original transaction in which the loan contract was only one of several moving parts. I believe I have hit on something here and I continue to invite comments.
Since the sales of certificates and hedge contracts and trading on those instruments and the loan documents were inherently a part of the deal for the investment bank that either originated the loan or acquired the loan, my theory is that all of those transactions were contemplated but not revealed to the borrower when the loan closing supposedly occurred.
Most theories of attack go to negating the foreclosure or decreasing the amount due by offset in defenses or claims. My new theory does the opposite. It reaffirms the loan contract and then goes on to assert that the revenue and compensation derived from the rest of the transaction, taken in its entirety, gives rise to an implied contract in which the borrower is essentially entitled to compensation or royalties arising from the transaction taken as a whole.
The transaction, taken as a whole includes all of the moving parts upon which the investment bank was completely relying, but for which it would never have authorized the loan of money or purchase of a loan.
In the case where the investment bank actually originated the loan using sham conduits, the single transaction doctrine and the step transaction doctrine make it clear that the loan strictly because the investment bank expected windfall profits about of the origination of the loan because it was selling certificates to some investors and hedge product based on those loans and certificates to other investors.
In both the single transaction and step transaction doctrines the essential issue is who are the real parties in interest. In this case it is the investment bank in most cases and the borrower. everything in between represents part of the transaction even if it was not disclosed to the borrower. Both parties are entitled to the benefit of the bargain for both he express written contract and the implied unwritten contract.
TILA requires disclosure of all compensation arising out of the origination of the loan. And compensation is very broadly defined.
Under doctrines that evolved from the term “assumpsit” that now include, for example, quantum merit or unjust enrichment, a claim can be made that the borrower gave his name, signature, credit reputation and his house as his or her part of the bargain and that an implied contract arose that he or she or they would receive the benefit of the implied bargain for the undisclosed portion of the transaction. This is classic assumpsit.
This theory avoids all the pitfalls of attacking securitization and attacking foreclosures. If successful though it results in an award of damages that could be equal to or even exceed the amount demanded as due on the loan. Since the prints and compensation in ,most cases were 10 to 20 times the amount of the loan even a 5% rate of compensation to the only other real party (the borrower) would result in damages, plus interest that would be between 60% and 150% on average of the loan amount. The investors would all be protected because they are not being sued. The investment banks are being sued.
Comments and suggestions are hereby solicited. Write to neilfgarfield@hotmail.com.
 I am broadcasting live from Duval County Florida and this show is brought to you by the livinglies blog, GTC honors, Lendinglies, AMGAR, and the Garfield firm, and this show is specially brought to you because of donations to the livinglies blog from listeners like you. Thank you.
Folks I am trying my best here for the last 5 years on radio and the last 13 years in articles, seminars and appearances one adios’s and television to get the point across that homeowners  can, do and should win most of the foreclosure cases brought against them. Neither the blog nor the radio shows are supported by anything other than donations. AND the seminars cannot occur unless we have a substantial increase in donations to offset the costs of creating and presenting the seminar such that the cost can be brought within an affordable range for homeowners and lawyers.
So HIT THE DONATE BUTTON ON THE THE BLOG OR call 954-451-1230 or
202-838-6345  and pledge whatever you think you can afford. If this show has value for you, if  our work on the blog and our radio shows, without payment or other support has value to you then chip in. Please make a contribution to help us continue helping you and all consumers. It’s not just me who is on this mission. It’s you as well.
The basic premise of all foreclosures is that foreclosure is necessary and legal to compensate and protect a party who is losing money because a borrower homeowner is not paying their legal debt to the party that owns that debt. They must assert the position that they are losing money because they loaned money or bought the debt. One of those two things must be true.
See Article 9 UCC §203 which requires payment of value as a condition precedent to enforcement of a mortgage or deed of trust. Remember this is to be distinguished from Article 3 which enables a non-owner of the debt to enforce the note and get a judgment against the maker of the note.
One of the things that most lawyers and judges forget is that the UCC is not some theoretical treatise on commercial paper. It is law. And it isn’t just common law, it is statutory law adopted in all US jurisdictions. And most efforts to construe the wording of the statute by courts attempting to tilt justice in direction of the bank have been rejected eventually on appeal. The law is clear, it is expressly and explicitly stated.
A condition precedent means by definition that it is something that must occur first before anyone can take the next step. As you might remember that sounds a lot like standing doesn’t it.? That’s because ti is the same thing. All the legislators of all US jurisdictions have decided by adoption of Article 9 203 UCC that while they allow for notes to be enforced more freely, the loss of someone’s property must only be at the hands of someone who has first, before attempting to enforce, has loaned money or purchased the debt.
The essential elements of a defense must, in the end reveal that there are more questions than there is confidence that the proceeds of foreclosure will go to pay down the debt to an owner of that d debt. that will get traction and which has been the focus of the thousands of cases in which homeowners have prevailed with a dismissal of the foreclosure, vacation of the sale, judgment for the homeowner or a settlement to keep the homeowner quiet about basic flaws in the entire scheme of residential mortgage loans and the foreclosures.
And one side note that illustrates and highlights the importance of this work defending homes from foreclosure: I have recently received information from a few homeowners who literally have received notices of two foreclosures from two different services representing two different Trustees — US Bank and Deutsch Bank for the same trust. This is important because it shows that the documents — all of them — are fabricated including the pooling and servicing agreement, assignments, etc. For a successful defense you must accept the reasonable probability that every part of the claim brought against the homeowner is a lie.
So let’s look at an example with six layers which Goldman Sachs investment bank, the mother of all this chaos, calls laddering.
In the fictional example Mary Jones’ name as appears as authorized signor for Ocwen Servicing as attorney in fact for US Bank as trustee as successor to Bank of America, as trustee as successor to LaSalle Bank as trustee for the XYZ trust 2006. This is designed to be intimidating and confusing  because it usually works until some enterprising lawyer starts to pick it apart to reveal there is nobody home.
You have six layers here, which are not readily apparent if you read too quickly. Some layers are susceptible to challenge on facial validity and then facial validity of the foreclosure lawsuit or the notice of default. Other layers are subject to later investigations, discovery cross examination etc.
  1. You have Mary Jones who may or may not exist and whose signature might be forged or robosigned, and whose authority as “Authorized signor” is yet to be tested. This can be attacked during litigation but is generally not a ripe target for attacking facial validity.
  2. You have Ocwen who supposedly is attorney int act as attested to by Mary Jones whose knowledge is unknown and in all probability have no knowledge of Ocwen’s authority just as she probably has no knowledge of the existence of the document on which her name appears. More importantly there is nothing recorded anywhere giving Ocwen as servicer who only operated under servicing agreements, power of attorney to execute anything for anyone. They can still prove they had the power of attorney but it is not apparent from the face of the document nor is it available in public records. And in order to prove the power existed, in the absence of any power of attorney in the public records or attached to the current document, they must allege that Ocwen had a power of attorney that was valid, unrevoked and effective as of the date they filed the instrument — and that is was executed by someone with authority to sign the power of attorney on behalf of a party who had a specific financial interest in the debt. Who signed the power of attorney? does the power of attorney exist? Did it exist at the time of the execution of the complaint, notice of substitution or notice of default? Probably not. But even if it did the notice is defective because it relies on the facial validity of implied but unstated other isntruments.  Failing that the foreclosure complaint must be dismissed with leave to amend alleging the proper elements to prove foundation for the attached documents and a new document must be attached to the complaint, which is the power of attorney; and or notice of default or notice of substitution of trustee must be canceled. If you don’t raise the issue it is waived.
  3. The you have the third level which is the XYZ Trust-2006. Look closely and there are no beneficiaries except the investment bank, no named trustee with any right to know about muchness administer the active affairs of the trust, no active affairs of the trust, no settlor, no trustor, and no thing which has been entrusted to a named trustee for the benefit of named beneficiaries. In all probability the trust doesn’t exist and it certainly has no relevance to the loan if the loan was not acquired by the trust either though a purchase by the trustee LaSalle using trust assets to pay or by convenience by a settlor to the trust where the settlor owned the debt. That didn’t happen in any case that I have ever seen. What is missing from facial validity of any document here is legal and proper and customary identification of the alleged trust by stating its state of organization or under what jurisdiction it exists. Like the power of attorney no trust instrument is referenced or identified and there is no trust instrument in official records. SEC.gov is not official records because it is no more than Dropbox or Box.com for uploading self-serving documents. The SEC has nothing to do with the documents other than providing the platform for the uploading of documents. Reference to the trust is facially invalid because it cannot be actually identified. Reference to the Trust is facially irrelevant although the trustee could still prove the existence of the trust and prove that the trust actually owns the debt.
  4. So then you have the fourth level. LaSalle Bank who was in a reverse merger with ABN AMRO which as acquired by Citi. Was the subject loan ever entrusted to LaSalle to own and administer the loan on behalf of beneficiaries of a trust? Did LaSalle Bank ever enter into a transaction where it paid value from the trust to the owner of the debt? Does the trust exist? If the trust is nonexistent in terms of facial analysis that leaves LaSalle Bank who disclaims any right, title or interest in the debt, note or mortgage related to any loan. It’s all smoke and mirrors. LaSalle merely received a fee for allowing its name to be used. It does nothing else.
  5. The fifth level is Bank of America as successor by merger to LaSalle. BOA acquired LaSalle Bank presumably from Citi who had acquired ABN AMRO from the shareholders of ABN AMRO. Who gained a controlling share of LaSalle in a reverse merger. But all questions of fact as to the mergers aside, what interest or right to the subject loan, debt, note or mortgage was transferred in the mortgage. The customary and normal business practice in banking is to have a mortgage loan schedule if a new party is the owner in title or substance. But here we have a different problem. There is nothing on any of the documentation warranting or even asserting title to the debt, note or mortgage by anyone. The documents and claims thereon are therefore facially invalid.
  6. The 6th level is US Bank who is said to have bought the trustee rights from Bank of America. This is facially invalid because there is no law suggesting that the position of trustee of any trust can be bought and sold like a commodity. Nor is there any reference, assertion or even suggestion that any specific loans were transferred to the Bank of America for administration over the loan including receipt of payments and tendering of those payments less expenses, to the owners of the debt. That is because neither US Bank or any servicer actually tenders the borrower’s money to anyone who owns the debt as payment of the debt.

Tonight! How to Attack the Facial validity of Documents, Complaints and Notices Used in Foreclosure 6PM EDT Neil Garfield Show

Thursdays LIVE! Click in to the Neil Garfield Show

Tonight’s Show Hosted by Neil F Garfield

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

I’m revealing tonight the specific structural analysis I use and which the LivingLies team uses under my direction to analyze the facial validity of documents that are being used to initiate fraudulent, yet legally effective foreclosures and sales of property. If you don’t challenge it the foreclosure becomes legal, valid and enforceable in unlawful detainer or eviction.

The basic premise of all foreclosures is that foreclosure is necessary and legal to compensate and protect a party who is losing money because a borrower-homeowner is not paying their legal debt to the party that owns that debt. They must assert the position that they are losing money because they loaned money or bought the debt. One of those two things must be true.

By attacking facial validity of documents you are starting at the beginning. You are attacking the foreclosure complaint, or the notices of substitution, default and sale. Properly done it removes all of the protective gear worn by your opposition and forces them to prove facts that don’t exist. That is how homeowners have won thousands of cases.

Article 9 UCC §203 requires payment of value as a condition precedent to enforcement of a mortgage or deed of trust. Remember this is to be distinguished from Article 3 which enables a non-owner of the debt to enforce the note and get a money judgment against the maker of the note. That’s different than a foreclosure judgment.

Most lawyers and judges forget that the UCC is not some theoretical treatise on commercial paper. It is law. It isn’t just common law, it is statutory law adopted in all US jurisdictions.

Facial analysis of documents is critical to success in court.

LISTEN LIVE TONIGHT OR CLICK ON THE NEIL GARFIELD SHOW

Scheduling a Consult with Neil Garfield

So many people have asked questions about the CONSULT that I decided to make a blog article about it to avoid answering the same questions repeatedly.

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ONLY A COURT ORDER ISSUED BY A STATE OR FEDERAL COURT CAN STOP A FORECLOSURE SALE. THIS IS USUALLY DONE BY PETITION FOR TRO OR BY FILING A PETITION FOR BANKRUPTCY (if you qualify). CONSULT WITH LOCAL COUNSEL ON ALL MATTERS.
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Failure to challenge the foreclosure in a court of competent jurisdiction will ordinarily result in a sale of your property.
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Neither this email nor any work performed including any CONSULT should be taken as a substitute for advice from a licensed attorney in your jurisdiction. Anything we prepare must be filed by you. Any deadlines, at this point, are your responsibility. We are not and cannot agree to be your attorney of record nor appear for you in arguing any cause before any court. Sales can also be stopped by the party who filed the notice but it is unwise to rely upon their representation that they have canceled the sale.
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You can directly order a CONSULT with Neil Garfield with or without document reviews and analysis. A consult with review of documents is a PDR – Preliminary Document Review.
  1. If you only want a consult without review of specific documents, click the link for ordering and paying for the CONSULT.
  2. You will be directed to fill out at least some information concerning your identity and your location as well as the location of the property. We must know your timezone in order to schedule the CONSULT.
  3. That will take you to Acuity Scheduling in which you can select the time and date of the Consult. Just follow the instructions and select the time and date you want the Consult.
  4. This will automatically put the CONSULT on my Calendar.
  5. It will also automatically send me an email notifying me that you have paid for a consult and you have scheduled the consult.
  6. I will set up a recorded CONSULT on our conference bridge FreeConference.com.
  7. You will receive a confirmation email inviting you to participate in the CONSULT.
    1. The email invitation will contain the CALL IN NUMBER which most likely be 605-475-6333.
    2. The email invitation will contain the ACCESS NUMBER you must enter to join the CONSULT. The ACCESS NUMBER is unique for each CONSULT to maintain confidentiality and privacy.
  8. Having a local attorney on the call is ordinarily helpful for homeowners or borrowers.
  9. Our Preliminary Document Review (PDR) includes a 30 minute CONSULT. It comes in three flavors, each with increasing levels of analysis and scope of review.
    1. Ordinarily it is at least advisable to order, at a minimum, the PDR Basic. We usually suggest ordering the PDR PLUS which includes more review and analysis prior to the CONSULT.
      1. The PDR Basic is designed for us to look at one page or a couple of pages of documents and provide guidance on the content of those pages and perhaps suggest some strategies or tactics that could be employed. 30 minutes of recorded CONSULT is included.
      2. The PDR PLUS is designed for us to look at recorded documents in the chain of title and some documents from either pending court action or recent notices and correspondence. Here our suggestions for strategies and tactics are more definite because we know more about your case. 30 minutes of recorded CONSULT is included.
      3. The PDR PREMIUM is designed to be a short-term abbreviated substitute for a thorough Case Analysis including all relevant documents including documents in chain of title, documents filed in court(s), notices, forensic reports, correspondence and other documents uploaded to our ftp server on Box.com. 45 minutes of recorded CONSULT is included.
    2. If time is of the essence and specific direction and guidance is requested then it is advisable to first order our TERA if you don’t already have a full title analysis with copies of the documentation.
    3. If you do have the title analysis with copies of the recorded documentation in your chain of title and you have pending court proceeding it is advisable to order the PDR PREMIUM.
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KEEP IN MIND: Assuming the technology at freeconference.com works properly which is nearly always the case, the CONSULT will be recorded in its entirety. You will receive the link and most likely the audio file itself as an attachment to an email from us. Most people elect to have it transcribed so they can cut and paste what was said or dictated by me. For my dictation and transcription I use www.speakwrite.com but you can use any service or person of your choosing.
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The reason I mention this is that some people waste their time on the CONSULT with asking me to repeat things during my “brain dump.” That is not necessary if the consult is recorded. Your consult is set for recording.
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You will be receiving an invitation from our conference bridge service provider, www.freeconference.com to attend the conference. Please accept the invitation to confirm the date and time.
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