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

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

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

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

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

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

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

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

 

“Court Bias” is an Unproductive Rabbit Hole

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

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

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

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There is no case in which humans are involved where there is no bias. To project failure on the basis of bias is like giving up one’s life because of the presence of air. Having bias and even acting upon it is not a crime under the constitution or any statute or common law precedent.
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We have all heard about cases in which an obviously guilty defendant was “acquitted.” And then people all get in an uproar about that and how the system failed to work properly.
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That is because they don’t understand constitutional and statutory law. A verdict of “not guilty” does not mean “innocent.” It means that the prosecution failed to prove their case beyond reasonable doubt — not that the defendant was innocent. That is our legal system.
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How does a defendant get a “not guilty” verdict? The lawyer attacks the predicates for the prima facie case against his client. If the search is bad the case is thrown out because our constitutional right to privacy was violated by law enforcement. that is how we keep them in line. The lawyer does not seek to prove his client is innocent because he need not do that to win. The lawyer must only undermine the factual or legal premise of the case filed against his client.
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So applying this to foreclosure cases, what you may be missing is the fact that homeowners win all the time. And the way they win is by undermining the case filed against the homeowner. They never win by proving that the opposition is composed of all crooks and liars. They win because they timely and properly bring up issues that the judge must decide in a manner in which the court is required to make a decision between the bias of the court and the procedure required to preserve the constitutional integrity of the legal system.
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I don’t deny that there are judges that will rule in favor of bias. But nearly all the examples of judges ruling by bias consist of decisions that I would have made myself if I was sitting on the bench. The judge is there to call balls and strikes and not to pick winners.
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If the homeowner brings up issues long after the appropriate time and place to do it, the homeowner has waived those defensive strategies in most cases. For example, you can’t refer to “the loan” and the “the servicer” and the “account” and then argue that they don’t exist. Here is another common example: objecting to hearsay after a string of 12 questions asked and answered. When the first question calling for a hearsay answer was put to a witness, THAT was the time to object. If not the objection is waived. Case over.

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

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

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

Neil F Garfield, MBA, JD, 75, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us. You will receive an email response from Mr. Garfield  usually within 24 hours. In  the meanwhile you can order any of the following:

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

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

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

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

Please visit www.lendinglies.com for more information.

Why the CFPB Announcement is Very Important

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

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

 

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

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

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

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

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

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

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Those records are the only thing that the dark side has to establish the existence of an unpaid debt and a creditor. U.S. Bank, N.A. for example does not receive documents or money out of the cash flow created by transactions with homeowners. The allegation, assertion, or claim has always been that it had “constructive possession” because the company that was named as the “servicer” had received the original documents.
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White will be revealed and highlighted by the policy announced by the CFPB, is that the named servicer does not receive any money or any documents. Instead, there are fabricated documents from which one might assume or presume that money and documents had flowed to the company that was named as a “Servicer.”
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Even if such companies, like Ocwen for example, came into actual possession of an original note (unlikely because notes are routinely destroyed contemporaneously with closing), it would mean nothing because they don’t have the right to enforce. People tend to forget the second part of the lawyers seeking Foreclosure use a variety of tactics to paper over that fatal deficiency.
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Wall Street investment banks invented a circuitous route to get around this fatal defect. They use documents that are labeled as “power of attorney” or they use the pooling and servicing agreement.
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The named plaintiff or beneficiary in a foreclosure is usually named as a bank not on its own behalf but as trustee of a named trust which may or may not exist. But neither the bank nor the trust maintains any accounting records reflecting ownership of assets consisting of obligations of homeowners.
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In plain language, this means that the Foreclosure mill is making allegations, assertions and argument regarding the existence and identity of a creditor owning the alleged obligation of the homeowner, but there is no testimony, exhibit or any evidence that those assertions are true. Pressed further, the inevitable conclusion is that they are not true.
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Therefore the appointment of a company that is self-described as a “servicer” is irrelevant to any case in which a party is seeking Foreclosure. In plain language, the agent has no more power than the principal.
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The announcement by the CFPB has Biden’s fingerprints all over it. His style is very underplayed and incremental.
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You could easily read the announcement as simply the intention to examine the business of companies that are described as FINTECH. The CFPB is saying that they are not simply technology companies.
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The CFPB is saying they are servicers — this puts the CFPB in direct conflict with all claims made on behalf of companies who are named as “servicers” but who perform no servicing functions in connection with the receipt, processing and accounting, and distribution of proceeds to any creditor.
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When you think about what that might mean and what we already know, the outcome of that investigation and monitoring will be an administrative finding that the real servicer has not been disclosed, and that the companies who are named as servicers have no relevant business records, because they never received any payments nor made any distributions.
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There is no possibility that the investigation will not lead to a question about how the FINTECH servicers are working and for whom they are doing this work.
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This is a pivotal point. If the real servicers are simply contractual agents of the designated companies who are named as services, it would strengthen the position of the investment banks. But I know that the real servicers (FINTECH) are working for the investment banks, and not the bank named as trustee for a REMIC trust — nor the company named as “servicer.”
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This will all lead to the inevitable conclusion that no company is actually performing servicing in the conventional sense. None of them are collecting money from homeowners and then distributing the payments to creditors. That is because of one fatal flaw and the business plan of the Wall Street securities firms. They eliminated the role of “creditor” or “successor lender” but they kept the labels.

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DID YOU LIKE THIS ARTICLE?
Nobody paid me to write this. I am self-funded, supported only by donations. My mission is to stop foreclosures and other collection efforts against homeowners and consumers without proof of loss. If you want to support this effort please click on this link and donate as much as you feel you can afford.Please Donate to Support Neil Garfield’s Efforts to Stop Foreclosure Fraud.
CLICK TO DONATENeil F Garfield, MBA, JD, 75, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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FREE REVIEW: Don’t wait, Act NOW!

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

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

Click here for Administrative Strategy ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
CLICK HERE TO ORDER CASE ANALYSIS 
*

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

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

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

Please visit www.lendinglies.com for more information.

How Bias Works Against Justice in Foreclosure Litigation

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

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

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

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

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

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

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

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I think it might be a task too large to prove the points I raised. But the reverse is possible and directly in line with what you are asserting in your brief. The neutral point of view would be that there must be a justiciable issue before the court which is universally defined as two or more parties in conflict about legal rights.
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In order for the justiciable issue to be presented in foreclosure cases, there should be a pleading requirement — given all the excesses and abuses that are revealed in settlements with Federal and state AGs — that
(1) requires the complaint to be signed under oath not by a servicer but by an officer of the bank that supposedly is a trustee of an alleged trust that is the plaintiff or beneficiary under a deed of trust,
(2) contains specific language warrantees title to the underlying obligation, legal debt, note, and mortgage,
(3) asserts an economic loss caused by its failure to receive payments from the homeowner that it had otherwise been receiving and
(4) acknowledging a specific servicing agreement, which should be attached, naming the currently named servicer to act and to specify the acts that are both authorized and performed.
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I also think that a certification from the company that is claimed to be a”servicer” that it received and disbursed money from the homeowner would end all foreclosure litigation. they don’t and their “records are merely an aggregation of data from third parties including unknown third parties.
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These FINTECH companies, effective yesterday are now being viewed as the real servicers by the CFPB. They are the ones receiving payments and they are the ones recording the receipt. So the Payment history” offered by the fake “servicer” is not a business record in the sense that it is not a record of business done or even managed by the “servicer.” it is inadmissible hearsay. And that means no case.
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But when homeowners raise any of those issues, usually inartfully, they are swept aside in a manner that is completely inconsistent with the customs and practice of judges thirty years ago — i.e., scrutinizing the document and asking the right questions even if the homeowner did not show up.
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A neutral judge would allow the homeowner to demand proof that the loan account exists and that the named plaintiff or beneficiary is the owner of it by virtue of having paid value for it. A neutral judge would automatically insist that the named plaintiff or beneficiary appear at least once by testimony or affidavit.
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A neutral judge keeps the burden of proof squarely on the claimant until the prima facie case is made. A neutral judge would not apply presumptions of fact drawn from documents whose source is a series of companies that admittedly fabricated millions of such documents containing false information — at least not without some corroboration (i.e., proof of payment for the loan account).
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Instead, the courts have swung the other way. And the use of nonjudicial foreclosure is an extreme example of what happens even in judicial foreclosures. Contrary to constitutional requirements, the homeowner must first produce evidence of a negative the nonexistence of the loan account — without any access to the records, data, and ledgers that would prove that.
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If one takes a neutral view there is an inescapable and undeniable conclusion: millions of homes have been forced to sale, depriving the owners of property and money, and causing untold damage to families and careers without the court knowing to a reasonable degree of certainty that the loan account even exists.
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I admit that many homeowners have cooked their own goose by referring to the existence of the loan account and accepting the status of the alleged servicer. But many people did not. And in any event the court should be careful before the property is allowed to be foreclosed.
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The courts have taken the view that it doesn’t;t matter whether the proceeds of foreclosure are paid to or on behalf of the named plaintiff or beneficiary. what matters only is if the homeowner owes the money. And the homeowner MUST owe the money because they signed loan papers including a promissory note.
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Thus was borne the court doctrine contrary to the statute and the constitution that says that anyone can enforce a claim as long as someone else doesn’t also make the same claim during the same time period. It doesn’t matter if the claim is valid, meritorious or just a scheme to generate more cash.
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They have swung that way, only in the niche of foreclosures, because of their fear and bias regarding a financial innovation to raise capital about which the judges know nothing. They assume from the outset that the claim is real. And that is the sole basis for failure to enforce discovery and pleading requirements. Whether conscious or unconscious, judges are rewriting the statutory laws and the state and federal constitutions.
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DID YOU LIKE THIS ARTICLE?
Nobody paid me to write this. I am self-funded, supported only by donations. My mission is to stop foreclosures and other collection efforts against homeowners and consumers without proof of loss. If you want to support this effort please click on this link and donate as much as you feel you can afford.

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

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

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

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

Click here for Administrative Strategy ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
CLICK HERE TO ORDER CASE ANALYSIS 
*

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

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

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

Please visit www.lendinglies.com for more information.

Living Truth: CFPB Moving Against FINTECH Companies

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

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

Here is part of the CFPB announcement:

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

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

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

 

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

Foreclosure litigation is a very special type of case. Normal rules of limitation and basic requirements of proof have been softened in favor of giving lawyers the opportunity of saying they represent a Bank that is the trustee of a trust. Those lawyers don’t need to assert that the trust owns any underlying obligation owed by the homeowner to the named Bank as trustee. It is all implied. And they never are required to show proof of authority to represent the bank. In fact, they have no contact with the bank.
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The virtually unanimous court doctrine in foreclosure cases is that the courts can be used as a shield against liability for illegal conduct. So this creates several different layers of litigation depending upon when the foreclosure defense lawyer picks up the case.
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An appeal is always an attractive opportunity for the layperson but lawyers know that (a) the appeal won’t stop the sale of the property unless the court issues a stay and (b) the odds of achieving any result that could be categorized as successful in the appeal of a foreclosure action are about 200:1 at best.
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Your next question is like a double-edged sword. On the one hand, the courts have treated the subject of wrongful foreclosure as not maturing until the Foreclosure case is complete. On the other hand, there is court doctrine that presumes the validity of all preceding orders arising from prior litigation — but only if they were favorable to the foreclosure mills.
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This comes partly from the doctrine of finality which is an important doctrine from the standpoint of bringing disputes to a close and partly from the mistaken widespread belief that disallowing foreclosures would destroy the sanctity of contracts that courts are sworn to uphold.
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So that is why I am always conflicted when guiding people into or out of litigation. Yes, I believe that all these foreclosures are scams and that the opposition would be unable to prove the basic elements of their claim if put to the test. But starting out — particularly when the case ruling is against the homeowner —- is daunting.
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Yet I believe that anyone with the resources to attack this scam at the trial level will most likely (3:1 odds) win. The odds get worse after an actual judgment is entered against the homeowner. But they get better when you add newly named parties discovered by forensic investigations. And the odds become very good when you get to the point where you are pressing for orders compelling responses to discovery demands.
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I have only seen a few cases in which homeowners were able to do it on their own and those were cases from 10-12 years ago. I’m speaking here in terms of actually getting a judgment or settlement that consists of real value to the homeowner — reducing or eliminating the debt, payment of damages and attorney fees, court costs etc.
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The successful cases (i.e., cases in which the homeowner received substantial relief or value) have the following attributes:
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  • They are buried and even scrubbed under both confidentiality (NDA) agreements and court-ordered expunging of the record
  • The homeowner was represented by aggressive trial counsel who had internalized the belief that the case was winnable.
  • Discovery demands were made and pursued.
  • Motion practice was aggressively employed.
  • The opposition had been shoved into a corner where they had no answer that wouldn’t put them in jail or under administrative procedures removing their charter or license.
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So my short answer is that homeowners who start early, perhaps before any foreclosure is initiated, are the ones most likely to get a favorable outcome.
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After the case is over and the judgment is against the homeowner, the odds are daunting. But a well-conceived complaint that is specific in its allegations that form the basis of a cause of action upon which relief could be granted is likely to survive a motion to dismiss or demurrer. Once you get past that milestone your chances are vastly improved.
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There are some early strategies and tactics that I outlined on my show 2 weeks ago. But it is too early to say if they will be successful. I have started using them and we’ll see what happens.
===============================
DID YOU LIKE THIS ARTICLE?
Nobody paid me to write this. I am self-funded, supported only by donations. My mission is to stop foreclosures and other collection efforts against homeowners and consumers without proof of loss. If you want to support this effort please click on this link and donate as much as you feel you can afford.Please Donate to Support Neil Garfield’s Efforts to Stop Foreclosure Fraud.
CLICK TO DONATENeil F Garfield, MBA, JD, 75, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
*
FREE REVIEW: Don’t wait, Act NOW!

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

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

Click here for Administrative Strategy ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
CLICK HERE TO ORDER CASE ANALYSIS 
*

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

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

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

Please visit www.lendinglies.com for more information.

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

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

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

JURISDICTIONAL CHALLENGES MUST NOT BE AIMED AT THE MERITS OF THE CLAIM
  1. The challenge must arise from the face of what is written in the complaint or in the exhibits. Or, it must arise from the presumptions in nonjudicial states based upon the recorded documentation.
    1. The usual XYZ Bank NA as trustee for the ABCDE Trust Series 2006-BC6 on behalf of the holders of the certificate series ABCDE Trust Series 2006-BC6 presents exactly that opportunity. XYZ Bank is not submitting itself to the jurisdiction of the court and neither is the putative trust even if it exists. (Both are named as acting on behalf of unidentified certificate holders).
      1. We know that because regardless of how many entities are framed in the style of the case, it is all on behalf of unidentified holders of certificates who have not been named. So you have no named Plaintiff submitting themselves to the jurisdiction of the court and therefore no case in controversy.
        1. A free-style test of this is easy: in the event that the homeowner wins and fees and costs are leveled against the claimant, who is responsible for paying those fees and costs.? It isn’t XYZ Bank. It might be the trust if it is properly identified and it certainly is not the certificate holders who have never been named.
        2. But how do you levy the judgment against anyone? Such judgments are routinely paid by or through the company named as the “servicer”  — but the claimed servicer is not even a party to the litigation. But what if it isn’t paid? That actually happens sometimes.
      2. If the Style of the case is XYZ Bank NA as trustee for the ABCDE Trust Series 2006-BC6 AND there is an allegation that the Plaintiff is a National Association, that is technically not true.
        1. The plaintiff is the putative trust. This is an important distinction.
        2. The trust is not a National Association (i.e. a nationally chartered bank) and the allegations in the complaint are missing the required components of a statement of how and where the trust was organized — which might be subject to a motion to dismiss or a motion to dismiss for lack of jurisdiction.
==============
DID YOU LIKE THIS ARTICLE?
Nobody paid me to write this. I am self-funded, supported only by donations. My mission is to stop foreclosures and other collection efforts against homeowners and consumers without proof of loss. If you want to support this effort please click on this link and donate as much as you feel you can afford.

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

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

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

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

Click here for Administrative Strategy ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
CLICK HERE TO ORDER CASE ANALYSIS 
*

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

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

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

Please visit www.lendinglies.com for more information.

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

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

*

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

  • Homeowner payments by check are sent to a PO Box that is in the control of a lockbox provider like FiServ or a depository bank providing lockbox services through a FINTECH company (frequently Wells Fargo).
    • The box is not owned by Ocwen but Ocwen is named as a DBA for the party that owns and controls the box.
    • Ocwen neither deposits the money nor can it access the money.
    • Its records showing payments and payment history are based upon reports FROM Fiserv who is operating under contract not with Ocwen but with an intermediary for the investment bank bookrunner.
    • Testimony from an Ocwen representative is hearsay on hearsay. It is excludable from evidence if a timely and proper objection is raised.
  • Homeowner electronic (EFT) payments (ACH, auto withdrawal etc.) are directed to an account owned and operated by the FINTECH company just like the paper check payments. The account is owned by Fiserv and maybe CoreLogic dba Ocwen.
    • Ocwen neither deposits the money nor can it access the money.
    • Its records showing payments and payment history are based upon reports FROM Fiserv who is operating under contract not with Ocwen but with an intermediary for the investment bank bookrunner.
    • Testimony from an Ocwen representative is hearsay on hearsay.
  • Homeowner correspondence and legal notices (QWR, DVL etc) are directed to another PO BOX that is owned and controlled by a FINTECH company running algorithms based on artificial intelligence producing stock answers to every letter. Once again this company is dba Ocwen. Things that don’t fit within the knowledge or programming of the server processing correspondence and notices are discarded.
    • No human hands or minds are involved in the receipt or processing of correspondence or notices from the homeowner.
    • Generally, no signature is attached to any of the correspondence, notices, or statements sent out under the Ocwen letterhead.
    • Ocwen knows nothing until foreclosure is initiated at which point Ocwen receives instructions and access to a limited set of data prepared for use in court by a FINTECH company who may or may not be the FINteCH who received and processed incoming homeowner payments.
*
The importance of all of this is that under the rules of civil procedure and the laws governing the definition of evidence Ocwen is irrelevant if it is not receiving the payments, processing them, and inputting data into an accounting ledger reflecting their receipt of the funds.
*
Unless an officer of the FINTECH company testifies that they processed the transaction, noted the receipt of payment, and produced a report for publication by Ocwen, there is (a) a lack of foundation to Ocwen representative’s testimony and (b) a very clear path to excluding Ocwen robowitness testimony without which no exhibit can be introduced.
*
There are two ways of attacking this. One is to issue a subpoena duces tecum to the FINTECH company and the other is to have the information already in hand. Caution: the FINTECH company gets very touchy when they are contacted directly by a homeowner.
*
But best practices in litigation would be to issue the subpoena while at the same time the lawyer is compiling evidence of who is performing what function — and therefore who could produce a business record showing what functions they performed.
*
The indemnification agreements between the servicers, FINTECH, and other vendors on the one hand, and the investment bank bookrunner on the other hand expressly state that nobody needs to get involved including but not limited to the servicer (e.g. Ocwen), the REMIC Trustee and the FINTECH company. FINTECH will not get involved in testimony or the introduction of exhibits as evidence.
*
If we can show that the named servicer is not receiving the funds, not disbursing the funds, and not processing funds then we can bar any “business record” as excludable under the hearsay rule even if the information on it is true. Barring the testimony of the robowitness forces the issue.
*
The result is
  • voluntary dismissal without prejudice.
  • An involuntary dismissal with prejudice
  • Judgment entered for the Homeowner.

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

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

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

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

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

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

Click here for Administrative Strategy ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
CLICK HERE TO ORDER CASE ANALYSIS 
*

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

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

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

Please visit www.lendinglies.com for more information.

Homeowner Beliefs and Fears Drive Losses in Court

There is no “YES”.

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

*

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

*

So here is my response:

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

*

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

*
But you are right when you get from my writing that homeowners share the blame for what happened and what is still happening.
*
The main point of this discussion is the ability and willingness to pay a good lawyer the fees required to do ALL of the work necessary. Homeowners all cry poverty when they are looking for a lawyer. They have already reduced their goals and expectations, to wit: instead of being in it to win it, they only want delay or settlement. So the value they put on a lawyer’s services are also diminished.
*
So the willingness of the homeowner to plunge into litigation that could turn out to be “expensive” results in retainer agreements with lawyers who are NOT paid to do all the investigation and research to narrow and sharpen the tip of the spear.
*
And the lawyer does not do the investigation and research and analysis. Such lawyers go to court with diminished expectations and without a strategic plan or tactical plan. The die is cast for nearly all such cases the moment that the issues are joined.
*
Everyone, including the homeowner themselves, believes that the transaction as a loan, it still exists and that the named “servicer” is performing servicing functions for a bona fide creditor. They admit to those presumptions directly or indirectly by referring to entities by the descriptive term used by the banks — all for the purpose of misleading the homeowner, the lawyer, and the court.
*
So the lawyer for the homeowner goes to court with no reasonable desire to win, a fact that is not lost on the judge who is simply playing the game of the appearance of due process. Homeowners will almost always slip up (and so does the lawyer) by calling the transaction a loan, by referring to the correspondent as a servicer, and by referring to the claimant as a bank.
*
This is not a philosophical discussion of what should be done. I deal with real-world realities. People challenge me all the time by pointing to cases where the homeowner lost. Did he or she ever think they deserved to win — or did they think that it would be great if they somehow escaped enforcement? The difference between losing and winning is in the intent of the homeowner and the lawyer.
*
The proof of the pudding is that the house, if it was free from any encumbrance, would represent a major asset that could be sold, thus providing a basis for a better lifestyle or retirement. But there is virtually no homeowner that I have ever spoken with who thinks that is a viable option. So they aim far lower and that is what they get — low results. In their hearts, homeowners believe that the loan is real because that is what they asked for and that is how it looked at “Closing.”
*
So they will admit and concede facts that are not true. The defense narrative in that scenario becomes “yes, but.” There is no “but”. If you have a legitimate debt owed to a creditor who is losing money because of your failure to make a payment, there is no “but.” But if you find that that there is no loan account and there is nothing to legally enforce, there is no “yes.”
=================
DID YOU LIKE THIS ARTICLE?
Nobody paid me to write this. I am self-funded, supported only by donations. My mission is to stop foreclosures and other collection efforts against homeowners and consumers without proof of loss. If you want to support this effort please click on this link and donate as much as you feel you can afford.

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

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

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

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

Click here for Administrative Strategy ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
CLICK HERE TO ORDER CASE ANALYSIS 
*

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

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

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

Please visit www.lendinglies.com for more information.

MERS and the problem of false agency

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

*
Here is the deal:
*
As was typical during the “securitization” era, the application for a loan is received as the commencement of the transaction. It is not the “closing.”
*
From your perspective, you asked for a loan, and you were given false paperwork for you to read and sign. From the perspective of the disclosed counterparty to your transaction, the originator was merely paid a fee for the service of selling the transaction to you as a “loan.”
*
The funding for your transaction is an elaborate scheme unto itself. Once the paperwork is completed by the investment bank, the investment bank borrows the amount of money needed to pay homeowners at or near the time of closing. There is frequently a waiting period after what the homeowners perceive as a loan closing. This is the final check to make sure that there are not multiple entities named as Plaintiffs or beneficiaries on mortgages and deeds of trust respectively.
*
The loan from, for example, Credit Suisse, is collateralized by the impending sale of certificates to investors. The certificates do NOT represent any status as beneficiaries of a trust nor any status as a creditor to whom the homeowners ‘payments set forth on the homeowners’ note are payable.
*
Payments of money to the investors are discretionary but they usually are made by the investment bank regardless of whether or not any homeowner makes a scheduled payment on the schedule described in the promissory note issued by the homeowner. Investors were sold and contractually accepted the idea that they and no right, title or interest to any homeowner payment, legal debt, underlying obligation, note, or mortgage (or deed of trust).
*

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

*
The sale of the certificates pays back the loan to Credit Suisse, plus a fairly large (e.g. 30%) profit partly directly arising from a yield spread premium (the difference between the amount of money paid by investors for unsecured IOUs from the investment bank and the amount paid to homeowners. Additional money is generated as the proceeds or revenue of either sale of the additional derivatives securities created and issued by the investment bank.
*
The problem for laypeople or even lawyers is that there is a choice between whether to analyze your transaction from the perspective of what you were seeking or whether to analyze the group of transactions from the perspective of the securitization scheme, without which there would have been no homeowner transaction. The consensus in the media and courtrooms is to simply analyze the transaction from the perspective of what the consumer wanted when he or she applied for a loan, regardless of where that is an accurate description of the transaction.
*
Contemporaneously with the origination of the transaction, several things are happening. In broad strokes, they are divided into the money trail and the paper trail. In the paper trail, none of the documents correctly identify or describe a transaction much less “memorialize” any transaction. Because everyone has received all the money they intended from participation in the “securitization” scheme the essential ingredient of a loan account receivable is eliminated thereby making nobody the “lender.”
*
Simply stated, since there isn’t anyone who maintains any record on the accounting ledger of an account receivable owed by you, there is no creditor. Nonetheless, in order for the securitization scheme to work (justifying more sales of certificates and other derivatives to investors), it must appear as though (a) an underlying obligation is created, owed to a specifically named lender and (b) that it has been transferred to a named business entity with caveats on the sale — namely that there is no warranty of title to the claims against homeowners.
*
When the origination cycle is complete, the status of the transaction is that there is no counterparty who has a stake in the viability or success of that transaction because nobody loses money if the homeowner does not make a scheduled payment — one that I maintain is simply not due to anyone. The absence of a lender — and all that entails under law — means there is no loan. The finance side of the transaction knows this but sets out to create a false paper trail to make it seem like “this is a standard mortgage loan” or ” this is standard foreclosure action.”
*
The financial community in coordination with lawyers willing to play the “game” used strategies and tactics to not only make it appear that the transaction was a loan but to actually have the court presume that the transaction was a loan and that the complaining party has hired counsel to seek a remedy. The status of such claims is always this: there is no obligation, loan account, or other claims for money allegedly due from the homeowner.
*
The primary tactic utilized by the financial community is the volume of paperwork. the thicker the pile of paperwork the more likely it is that a layperson sitting on the bench, will conclude that the transaction was real as a “loan.” And that is why we witnessed the birth of a major industry — creating false, fabricated, backdated documentation making it appear that several brand name institutions were trading, purchasing, and selling the “loans”. In reality, no such transactions existed, but the paperwork said the t transactions had occurred.
*
Considerable effort and coordination were devised by the financial sector to mislead the court system and they did so successfully in most cases. But even a casual look at your chain of title for the mortgage or deed of trust reveals inconsistencies in the paperwork especially when one realizes that the signature block one each document is on behalf of entities that (a) don’t exist at all, (b) exist but are irrelevant to the transaction and (c) are unclear from the face of the document.
*
Your case is almost certainly closely aligned with the typical playbook of strategies and tactics. Examining the document assignment of mortgage you find what is typical:
*
  1. No consideration. the law requires that value be paid by the claimant before it can file suit to enforce the claim. But that law does not impact the ability of the foreclosure players to make false claims of authority to administer, collect or enforce in correspondence, notices, and statements.
  2. “Corrective instruments” that correct nothing in order to establish more paper volume.
  3. Execution of assignment by a business entity that has no right, title or interest in the alleged obligation. For example, MERS is used to launder titles.
    1. People from  FINTECH companies regularly access the main servers that are maintained by MERS for the sole purpose of getting themselves automatically appointed, without board resolution, as an officer of MERS.
    2. MERS always is described as the nominee for the specifically named “lender” who is just an originator selling a financial product as described above. MERS is used as a cover-up. It effectively hides the title gap in plain sight.
    3. The execution of an assignment or corrective assignment presumes that it is acting as an agent for whoever is currently named as the current claimant, beneficiary, or Plaintiff. But no such agency exists in fact or at law.
    4. The execution of a security instrument (mortgage or loan) by a self-proclaimed “servicer” (which performs no servicing duties with respect to receipts data processing and disbursement of money from homeowners) on behalf of a new entity appointed to be the claimant, beneficiary or Plaintiff. But the execution of the assignment by MERS on behalf of Countrywide after the collapse of countrywide. it does not exist.
      1. And Bank of America did not acquire any ownership interest in any homeowner transactions because countrywide didn’t own any such interest.
      2. So while Bank of America was a successor to Countrywide, the foreclosure team is relying on appearances — in order to get the court to presume that the merger created a transfer of the ownership of the unpaid nonexistent loan account receivable of the mortgage rights from Countrywide as originator to Bank of America.
      3. In such mergers, there is no Mortgage Loan Schedule, nor any written assignment of mortgage. Since the law requires the assignment, the presumption that the transfer could occur without an assignment of mortgage is erroneous. But that fact will not stop foreclosure unless it is aggressively contested.
    5. The document is supposedly executed by someone calling themselves an “assistant secretary.” But note that it does not say that the signor was the assistant sectary of MERS.
    6. Every time there is mention of MERS it includes the phrase “its successors and assigns” such that it is unclear from the grammar utilized whether there is a successor to MERS or a successor for the principal in the agency agreement between MERS and the originator (Countrywide in this scenario).
    7. But there is no succession to either one unless (a) someone bought or merged with MERS or (b) someone bought loan accounts receivable from Countrywide. Such a sale would’ve been impossible because, by the time of the merger, Countrywide had only reserved “servicing rights” which really only meant the claim to receive “servicer advances” upon liquidation of a foreclosed property. So there is no MERS successor and there is no Countrywide successor as it relates to either the actual pr presumed transfer of the alleged underlying obligation.
    8. Any endorsements are undated. Under current law, this means that parole evidence must be offered to prove that the promissory note was transferred and delivered to the party named as claimant, beneficiary, or Plaintiff.
    9. Documents requiring the signature of the homeowner are in most cases completely fabricated even if the homeowner did sign similar documents. This has been sued to change the fact relevant to execution and delivery of the promissory note that in approximately 95% of all cases is destroyed within days of the time of closing that transaction with the homeowner.
      1. This becomes clearer when the homeowner is able to lay hands on the original note at least as an original, and when the original note contains coloration of signature or other marks that do not appear on the refabricated note made by electronic manipulation of images.
    10. The foreclosure mill will often utilize such fabricated documents even when they contain glaring facially invalid errors. For example, where a parent was the owner of the property and signed the “mortgage” paperwork, the instructions received by the law firm are turned into correspondence, notes, statements, and pleadings that reflect the grantors under a deed of trust or the mortgagors under a mortgage instrument become the heirs or successors to liability under the note.

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

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

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

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

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

Click here for Administrative Strategy ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
CLICK HERE TO ORDER CASE ANALYSIS 
*

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

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

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

Please visit www.lendinglies.com for more information.

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

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

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

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

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

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

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

There are three avenues for appeal.
(1) Appeal to Federal Circuit Appellate court where the likelihood of success is virtually zero.
(2) Appeal to Bankruptcy Appellate Panel, where chances are somewhat improved. and

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

People do not realize that BKR judges have limited jurisdiction and it might well be that the BKR judge went beyond her authority when she ruled against you. But in all events, if she was clearly wrong then you have the conventional reasons to appeal. And District Court judges are generally happy to assert themselves over the “lesser” BKR judges who at one time (when I started practicing) were not even considered judges.
I can review the situation if you want. I won’t appear as an attorney of record but I can write everything and prepare you for an oral argument in front of the Federal District Court judge if an appearance is necessary.
You will need to send me all relevant documents to this specific issue. That includes a screenshot of the docket from the beginning of the BKR proceeding. I will review them, order a new title search with copies of all relevant documents, and then set up a telephone conference with you. This is called the Click Here for Preliminary Document Review (PDR) [Basic, Plus, Premium). Generally speaking in roder for me to get brought up to speed you shoudl select the PREMIUM.
When we have the CONSULT we will decide on next steps. If it is the appeal I can draft all necessary documents but you should have local bankruptcy counsel advising you. This would be a limited retainer for which I would bill you $4500. That would cover all expenses and fees unless the judge orders me to appear. You must disclose where you are getting help.
If we go to a retainer, then I will send you a retainer agreement and upon execution, I will bill you through PayPal and upon receipt of payment I will commence work. The retainer fee can be s[rpead out over 60 days in three payments of $2500, $1,000 and $1,000.
Note that I am estimating fees not quoting them — and the fees paid to GTC Honors, Inc are in addition to the fees paid to local counsel.
PRACTICE NOTE: because of the statistics there is an inherent tactical advantage if you seek protection under chapters 13, 11, or 7. An erroneous ruling that is subject to interlocutory appeal has a far higher chance of success than anything you might find in the state court processes.
=====================
DID YOU LIKE THIS ARTICLE?
Nobody paid me to write this. I am self-funded, supported only by donations. My mission is to stop foreclosures and other collection efforts against homeowners and consumers without proof of loss. If you want to support this effort please click on this link and donate as much as you feel you can afford.Please Donate to Support Neil Garfield’s Efforts to Stop Foreclosure Fraud.
CLICK TO DONATE

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

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

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

Click here for Administrative Strategy ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
CLICK HERE TO ORDER CASE ANALYSIS 
*

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

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

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

Please visit www.lendinglies.com for more information.

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

Thursdays LIVE! Click in to the Neil Garfield Show

Tonight’s Show Hosted by Neil Garfield, Esq.

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

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

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

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

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

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

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

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

Here is the Agenda:

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

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

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

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

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

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COVID merely exposed a fundamental weakness in our economy. That weakness was caused by Wall Street securities firms. They drained out tens of trillions of dollars from U.S. wealth and the economy in general. And they are still doing it. Virtually all installment payment transactions are funded through securitization.
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But securitization does not mean what is believed by the general consensus. If securitization meant that loans were divided up into parts that were sold to investors there would have been no 2008 Great Recession. Prices would not have sailed far above home values and loans would have been created that were properly underwritten in which appraisals, assessment of viability, and disclosures were all within the parameters required by Federal and State statutes.
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That is not what happened. It takes a certain amount of financial sophistication to understand the basics of what did happen. Consumers thought they were getting a loan. They were wrong. A loan has two parties with a stake in the deal. That does not exist. A loan has a risk of loss on a normal common sense loan account receivable. That doesn’t exist either. In a loan transaction when someone stops paying, the other party loses money. That doesn’t happen.
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The payment that homeowners (and all consumers) received at the “closing” was merely an incentive to issue the instruments that were used to issue unregulated securities to investors. Contemporaneously with each homeowner transaction, the role of the lender, loan account, risk of loss, and compliance with statutes was completely eliminated. Instead, an infrastructure emerged that was focused on the appearance of debt collection without any debt held by any creditor.
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In Iceland, they took care of the problem by nationalizing the issue. They reduced all household debt by 25%. The problem was over. Their economy recovered in a few months. Ours has lingered on for more than 20 years. We also nationalized the issue by the takeover of the GSEs Fannie, Freddie etc. But that was to protect the perpetrators of the greatest scam in all human history.
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All of this information can be put to good use by consumers who are receiving claims to administer, collect or enforce a debt that is claimed to exist on the books of some creditor. There is no debt and there is no creditor. By freeing up the process from being actually tied to ownership of any loan, the Wall Street securities firms were able to sell multiple iterations of various hypothetical interests in the performance of the transaction rather than the transaction itself. On average they made at least $12 for each $1 paid to consumers or on their behalf in installment contracts like those that were falsely labeled as loans.
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Despite the complexity presented here, the message is simple. If there is no loan, debt, or underlying obligation, then the note and mortgage are evidence of nothing. *
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Homeowners who follow that simple message typically win or settle their cases on highly favorable terms. Candidates who are running an antibank platform need only say that under their plan banks would be forced to settle on highly favorable terms. This would produce a much-needed stimulus of real cash into a real economy.
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Up until now, litigation of false foreclosure claims has been arduous and expensive. Tomorrow night, on the Neil Garfield Show I will unveil some strategies and tactics that could end litigation early in favor of the consumer/homeowner.
====================
DID YOU LIKE THIS ARTICLE?
Nobody paid me to write this. I am self-funded, supported only by donations. My mission is to stop foreclosures and other collection efforts against homeowners and consumers without proof of loss. If you want to support this effort please click on this link and donate as much as you feel you can afford.

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

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

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

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

Click here for Administrative Strategy ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
CLICK HERE TO ORDER CASE ANALYSIS 
*

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

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

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

Please visit www.lendinglies.com for more information.

Law Practices at Foreclosure Mills Could Lead to Prosecution

In a statement made via a news release issued Wednesday about the suit, James said, “In failing to fulfill their basic responsibility, Balsamo [law firm] caused untold trauma, stress, and financial hardship to New York tenants throughout the city. With each housing case, there is far too much at stake for lawyers to cut corners. We are talking about people’s ability to have a roof over their head.”

I doubt if it comes as any real surprise to the many law firms that quickly organized to file claims against consumers — especially homeowners. But the money was just too good to turn it down.

In an article in the New York Law Journal by Jason Grant, he reveals that Attorney General Letitia James sued a law firm for “deceptive rent collection practices” and “initiating frivolous lawsuits,” according to the complaint and a news release. Although I would argue that criminal charges might apply, the AG has chosen to go the civil route.

The NY AG alleges that a Brooklyn landlord-tenant law firm runs “a high-volume debt collection and eviction litigation practice by copying and pasting assertions from an intake sheet.”

The AG attacks the practice by copying and pasting assertions from an intake sheet filled out by their clients without conducting any meaningful attorney review of cases, and have sued and even evicted tenants where there was no legal basis to do so.

I take note that the allegation is not that they copy and paste from other pleadings. All lawyers do that. They are allowing third parties to file suit using the law firm as a cover. And the reason is both plausible deniability and litigation immunity. A private party could be used for making baseless arguments and assertions in court, but a lawyer cannot.

This is a little-noticed breakthrough. For the past 20 years law firms have grown rich by getting vastly overpaid for cutting and pasting allegations, names of Plaintiffs, and citations to exhibits in foreclosures — all without ever receiving a single communication from their presumed “client.”

These law firms not only fail to perform the basic due diligence required of all lawyers, but they are also in fact paid to NOT ask questions of anyone.

When a lawsuit names U.S. Bank or Deutsch or Mellon as Plaintiff you can be virtually certain that U.S. Bank does not know anything about the lawsuit, has not authorized it, wants nothing to do with it, and won’t even acknowledge it. Try getting one of the alleged REMIC Trustees to acknowledge the settlement when a forbearance or modification is offered.

For an outlandish fee, such Banks are allowing their names to be used as Trustees but they too know full well that they are probably going to be exposed to substantial liability for renting out their names for use in illegal collections and foreclosures. The documents do everything possible to protect those banks who enter the fray not as banks or even as trustees, but as participants in a civil conspiracy.

In the documents, they are prohibited from exercising any monitoring,  knowledge, control or even ratification of acts performed in their name. All states have laws that say that no material acts governing the administration of affairs of a trust can be performed by anyone other than a trustee.

But there is no trustee authorized to administer the active affairs or property of the REMIC trust because (a) it isn’t a trust and (b) there is property or res that has been conveyed into the trust or to the named Trustee either on its own behalf or in any representative capacity. I might add (c) which is that the REMIC trusts are not just entities that are not trusts, they are also not REMIC entities and in many cases, they are not legal entities at all.

Instead of producing a Trust Agreement that according to all b basic treatises on trust, including states and common law, the Wall Street community produces a Pooling and Servicing Agreement (PSA) which is (a) not a trust agreement and (b) a statement of future intention. It does not recite that anyone ever purchased, sold, or conveyed any asset to anyone, least of all a loan account receivable.

Foreclosures brought in the name of such trustees strongly imply the existence of a REMIC trust without ever asserting the words “REMIC trust.” This is probably because it is not a Real Estate Mortgage Investment Conduit.

These implied REMIC trustees are not even allowed to inquire. nor confirm the identity and authority of a “subservicer” who is supplying the witness for trial and whose name is used for the production of documents that were fabricated for trial. Documents that did not exist and would not exist but for purposes of trial.

So back to the subjects at hand. The NY AG is correct and this could have a ripple effect throughout the country. Lawyers are not supposed to take any action on behalf of anyone before that person, or business entity becomes a client. the banks are not clients of the foreclosure mill and they won’t say that they are clients. They are not billed or contacted by the law firm before, during, or after the foreclosure action is filed and executed.

  • These law firms are receiving an “intake” electronically on their desktops where it is converted without human thought into the necessary documents for initiating a foreclosure.
  • There is not a single lawyer, investigator, paralegal, or clerk who has any idea whether the instruction to name U.S. Bank., N.A., is based upon any factual foundation.
  • There is not a single lawyer, investigator, paralegal, or clerk who has any idea whether the instruction to plead any facts or use any exhibit is based upon any factual foundation.
  • There is not a single lawyer, investigator, paralegal, or clerk who has any idea whether the institution named as REMIC Trustee or named as their client is based upon any factual foundation.

From the article, quoting from the NY AG complaint:

“Law firms and attorneys that send rent demands or file non-payment proceedings under their name are representing that an attorney was meaningfully involved in assessing the legal merits of the claims,” states the complaint, which is signed by two members of the Housing Protection Unit of the Attorney General’s Office.

“Such a representation is false or misleading if, in fact, there has been only superficial, ministerial attorney involvement,” the complaint further says. “Likewise, when attorneys sign their names on court papers they represent to the litigants and the court that what they allege is true and based on a reasonable inquiry.”

The suit brings seven causes of actions and alleges that actions taken for years by the boutique firm in its “housing court practice” have violated state Executive Law, the Federal Debt Collection Practices Act, and state General Business Law.

Foreclosure defense lawyers should take note of this. This is not just bad practice. It is an opening to win the case outright. Because if neither the lawyers nor the client has any basis upon which they could make any allegation of facts the described behavior of a homeowner that caused financial injury, they have no proof that such facts are true.

So, for all their clever manipulations and carefully worded scripts, you can defeat them consistently by challenging at every turn whether they do represent the REMIC trustee, whether the fabricated documents are reciting events in the real world and whether the stated claimant or Plaintiff or creditor actually has any legal right or even moral right to assert claims to administer, collect or enforce alleged debts from homeowners.

Simple example: If an assignment says there is a grantor or grantee, start asking questions and demanding answers under RESPA, FDCPA, and court discovery. They don’t have the answers. You don’t need to prove fraud. You only need to undermine their ability to prove a prima facie case — something they won’t be allowed to even try if they have refused to comply with discovery, court orders, and even sanctions. The beauty is that they will always refuse. That is your ticket.

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

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

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

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

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

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

Click here for Administrative Strategy ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
CLICK HERE TO ORDER CASE ANALYSIS 
*

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

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

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

Please visit www.lendinglies.com for more information.

Why it is important that it is not PennyMac or Ocwen etc. (It’s usually Fiserv)

The biggest problem for nearly everyone viewing these pages is that besides the legal and financial jargon, the concepts are difficult to understand. So I keep getting questions and comments that basically amount to “So what” What difference does it make whether the named servicer is performing those functions or it is someone else?”

The simple answer is that if you want to keep your home, or if you want to pursue the real gold in the deal you signed, then understanding the difference is key to a successful conclusion. One of my contributors just wrote to me (I can’t remember which one) that she finally got it: this has been all about selling certificates and debt collection — without the debt. She’s right. And why should homeowners be making scheduled payments on a debt that not only does not exist but should not exist?

If you were paid to execute and issue instruments that were part of the sale of certificates to investors, then why should you pay it back, much less with interest? The sales and trading of those certificates and other derivatives based on the existence of those certificates results in at least $12 for every $1 paid to homeowners at “closing.” So homeowners were paid 8% of the deal. But if they are required to pay that back then they’re paid nothing —- and if they are also required to pay additional money (falsely labeled “interest”), they are paid less than nothing.

So some of our intrepid contributors, Summer Chic especially have been pressing the issue. and she has squeezed out some admissions that are very revealing and which regulators as usual are ignoring. So here is what I wrote to her about pressing further:

I think you need to get their attention by starting off with something they might care about. Everything you’re saying is correct but I think it would have far more punch if you said that you believe you have uncovered civil and criminal acts of conspiracy conducted for profit and that the representations we have all previously taken as true are not true. Specifically, you have been subject to claims by PennyMac that it was either the owner or servicer of an unpaid loan.

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Correspondence, statements and notices were sent to me not by PennyMac but by another company, Fiserv, who is a payment and ATM processor. Based on what they now admit, and my research, FiServ receives, processes, and accounts for payments from homeowners, depositing the money into an account controlled by an investment bank that uses it not to reduce the balance of any claimed loan account, but as operating capital.
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But it is PennyMac whose name is used to present evidence in a court of the right to administer, collect and enforce the alleged loan. And it is a “representative” (robowitness) who provides testimony that is intended to establish the existence of PennyMac business records in order to justify foreclosure.
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There are no PennyMac business records related to receipt, processing, or disbursement of payments received from homeowners. All of that data is input by Fiserv people and systems. Fiserv work is NOT contractually governed by any relationship with PennyMac.
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This enables investment banks who have no financial stake in the alleged loan to control and receive the money, instead of whoever is named as a claimant in any attempt to administer, collect or enforce the alleged loan. It is the keystone in setting up an infrastructure of sham conduits to conduct debt collection activities on what is probably a non-existent debt — i.e., there is no company or person who maintains a loan account receivable due from the homeowner to anyone. There are only reports issued by PennyMac that are claimed to be “servicer” reports of activities never performed by PennyMac. 

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There is not a single “REMIC Trustee” foreclosure in which the REMIC Trust or Trustee has ever received a single penny of homeowner payments or proceeds from the forced sale of their property. It does not happen and it is not intended to happen. the money from foreclosures is distributed as compensation to multiple foreclosure players.
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This is vitally important in court if you know what to do with it and it completely accounts for why there are major battles over discovery on items that before the era of “securitization” were routinely delivered to the homeowner or their attorney upon request. The reason is simple: If they open the door to discovery and release all the information required by statute, then they will reveal the absence of any existing unpaid loan account receivable on the books of any creditor.
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In order to sell the data from homeowner transactions multiple times, they had to avoid the fraudulent practice of selling the same transaction multiple times. That meant there was no sale and frequently no funding at all even at origination and even though homeowners were led to believe that money had exchanged hands. But in order to “enforce” the nonexisting “loans” they had to create the impression that the loan not only existed but was being bought and sold in the “secondary market.”
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Those “sales” never occurred. And that is why the entire industry turned to the fabrication of false, forged, backdated and robosigned documents to create the illusion of a loan market when in fact they were trading in deception.
  • Fabricated because there was no purchase and sale of the debt, note or mortgage.
  • False because it reported a transaction that never existed.
  • Forged using stamped or mechanical signatures so nobody could be pinned with signing it
  • Backdated because they were constructing an alternate fact universe in retrospect
  • Robosigned using stamped or mechanical signatures so nobody could be pinned with signing it

The grotesque error of the last 4 presidential administrations — Bush, Obama, Trump, and Biden — is the failure to reign in the banks and to allow them to compound the fractures they caused in our society.

*

Does that help?

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

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

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

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

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

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

Click here for Administrative Strategy ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
CLICK HERE TO ORDER CASE ANALYSIS 
*

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

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

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

Please visit www.lendinglies.com for more information.

Why the UCC Matters in Foreclosure Cases

The problem as illustrated by many scholarly articles and articles on this blog is that courts are given to treat plaintiffs and claimants as holders in due course without anyone asking them to do so.

The first thing you need to know about Foreclosure is that it is only about money. If you have the money and you pay it, there is no claim — or at least no claim against you. You might have a claim against a “debt collector” seeking to enforce a nonexistent debt for a nonexistent claimant.

The second thing to remember is that, by definition, foreclosure is a lawsuit or claim based upon enforcement of the mortgage or deed of trust. The promissory note is usually introduced as evidence of the existence of the obligation and the duty to make scheduled payments. But enforcement of the note alone can only result in a monetary judgment that could be discharged in bankruptcy.

According to the law in every U.S. jurisdiction (adopting 9-203 UCC) the mortgage or deed of trust can only be foreclosed to satisfy an unpaid existing obligation owed by the homeowner to the named claimant. Lawyers and judges have adopted various strategies to allow foreclosures when they are only based upon the enforcement rights of a holder of a promissory note and often without regard to whether the claimant is a legal “holder.”

In fact, most courts treat the claimant as though it had established its exalted status of a holder in due course — without anyone asserting that status. And the common failure to object to such treatment is the principal reason why homeowners fail to successfully defend foreclosure actions based upon a nonexistent loan account and often even a nonexistent claimant.

In 2007, the Fordham Law review published an article entitled “Will the real holder in due course please stand up?” I republished that article later on this blog. The answer to the question, in cases where foreclosure was claimed as a legal remedy by some alleged REMIC trust structure, was that there was no holder in due course.

You’ll be surprised to learn that there have been many cases where a credible offer to pay the claim has been declined if it required confirmation from the named Plaintiff or claimant.

This is standard industry practice in circumstances where a prior “loan” is being been financed or paid off through sale or other means. Many states have laws specifically requiring that the payoff information includes such information and assurances — in order to prevent a payoff to a party with no claim. It is basic common sense and basic law to assure continuous clear title to the property free from claims of clouded or unmarketable title.

In each case where I have been involved, opposing counsel basically took the position that they didn’t want the money they wanted the foreclosure. And in each case, the judge was surprised by that position.

But most homeowners are not in a position to make a credible offer to pay off the entire amount as demanded. Those who can make that offer are utilizing the AMGAR strategy that I developed 16 years ago.

Those who cannot make that offer must litigate to make the same point — that in the final analysis (trial) the attorney for the named claimant will be unable to proffer credible evidence of the existence, ownership, and authority to administer, collect or enforce any debt.

Instead, they will proffer fabricated documents and argue that the judge should apply legal presumptions to conclude that an obligation exists, the named claimant owns it and the homeowner is in breach of a duty to make scheduled payments.

In reverse logic, the foreclosure lawyer simply takes an uncontested fact (usually) and bootstraps it into a case that the judge thinks is real. And what nearly everyone forgets is that the absence of a scheduled payment, even after making such payments, is not evidence of default nor a license to declare a default unless the payment was actually legally required to be paid to the party seeking to collect it.

If you skip a car payment I have no business, right or justification in declaring that to be a default. But current law is hazy on the subject of what happens if I do declare the default and then bring a claim based upon my declaration of default and my claim that I represent the loan company.

In a 2016 article just brought to my attention that was published by Franklin Pierce School of Law of New Hampshire University, a lawyer in Miami published an article about the nonconforming use of the UCC to support nonconforming claims. At the time of publication, he was associated with a Florida law firm representing lenders. 14 U.N.H. L. REV. 267 (2016), available at http://scholars.unh.edu/unh_lr/vol14/iss2/2. 

See

The Non-Uniform Commercial Code: The Creeping, Problematic Application of Article 9 to Determine Outcomes in Foreclosure Cases

Morgan L. Weinstein

Senior Attorney at Van Ness Law Firm, PLC, Miami, FL

The Non-Uniform Commercial Code_ The Creeping Problematic Applic

Weinstein makes a clear presentation of fact and law with respect to the application of UCC Article 3 (notes) and Article 9 (Security instruments, mortgages deeds of trust etc.).

Keep in mind here that a holder in due course (HDC) is ONLY one who has paid value for the ownership of the note in good faith and without knowledge of the maker’s defenses. In plain language, the HDC can enforce even though there are potentially many defenses that would be available to the maker of the note if the claimant was merely an alleged “holder.”

In every instance where a REMIC trust structure is alleged, there is only an allegation or assertion that the “trustee” or trust is a holder, not a holder in due course. Earlier (2001-2005) assertions of HDC status were removed from the script.

Also, keep in mind that a legal holder of a note has two attributes: POSSESSION and RIGHT TO ENFORCE. The latter is overlooked. The only party with the power to grant the right to enforce is ultimately the creditor who owns the underlying obligation.

So the claimant attempting to enforce a note may file a complaint (and win a judgment if there is no contest) based upon the technical allegation that it is a “holder”. But it still loses at trial or summary judgment if it fails to respond to discovery requests asking for the source of its authority to enforce (given that they are not a holder in due course).

The problem as illustrated by many scholarly articles and articles on this blog is that courts are given to treat plaintiffs and claimants as holders in due course without anyone asking them to do so. Although I have seen many transcripts in which the lawyer Argues that his “client” is a holder in due course without any reference to payment of value in exchange for ownership of the debt, note or mortgage.

Such “misstatements” are protected under the doctrine of litigation immunity unless you can prove that the lawyer speaking absolutely had knowledge that he or she was lying when the statement was made.

He begins with a discussion of negotiability:

Negotiability presents the possibility of a transferee taking a position that is better than the transferor.The Uniform Commercial Code defines a number of different possible parties to a negotiation. There are three general positions that a transferee can occupy in a transfer under a negotiable instrument: the transferee can occupy a better position, a same position, or a worse position, with each position being relative to the transferor. [e.s.]

Typically, lenders in foreclosure actions occupy the same or worse position, given their frequent status as a “holder,”rather than the better position of a “holder in due course.”

Under Article 3, a “holder in due course” occupies a privileged position.Specifically, a holder in due course is insulated from numerous defenses to the right to enforce an instrument. A holder in due course is susceptible only to the “real defenses” of a borrower or other interested party.The real defenses include claims of infancy, essential fraud, insolvency, duress, incapacity, or illegality.Though there is an assumption of good faith in Article 3 dealings,a holder in due course is still protected from many defenses to the right to enforce.

 

Weinstein makes the following point, though:

it is generally understood that a note-holder may foreclose a mortgage, and a plaintiff need only establish entitlement to enforce the note in order to demonstrate its ability to foreclose the incidental mortgage; such a plaintiff need not demonstrate ownership of the note.

Although he correctly states the current status of legal consensus, this statement overlooks the issue presented above — that the right to enforce emanates solely and ultimately from the creditor owning the underlying obligation. Otherwise, the whole concept is meaningless.

The prima facie case of the claimant need not prove that line of authority and grants but the defense can undermine and eliminate the prima facie case if it can be shown that the claimant has not received such authorization or that the claimant cannot produce evidence of such authorization in discovery and even under court order in the discovery process.

Thus whether one relies on Article 3 or Article 9 the UCC result is the same: there is no remedy of foreclosure for a party who has not paid value for the underlying obligation or at the very least can show the foreclosure sale will be used to pay the creditor owning the underlying obligation thus reducing the alleged loan balance.

This goes to the root of foreclosure. Nobody in the courts would agree that anyone with knowledge of the original transaction with a homeowner should be allowed to enforce a contract to which he she or it was not a party. And if the proceeds of a foreclosure sale are not intended to decrease the loan account receivable of a creditor who paid value, then there can and should be no foreclosure or any other claim for that matter.

As far as I can determine, contrary to the belief of most lawyers and judges, there is no single instance where the forced sale of residential property in which the claimant was an alleged REMIC trustee, for an alleged REMIC trust resulted in payment to anyone who was owed the money. In fact, there is no single instance in which the alleged REMIC trustee or the alleged REMIC trust even received one single penny at any time.

My conclusion: all alleged REMIC trust structures are basically trade names (fictitious names) for the investment bank. None of them ever see a penny of payments received from homeowners or their homes.

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

Please Donate to Support Neil Garfield’s Efforts to Stop Foreclosure Fraud.
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Neil F Garfield, MBA, JD, 75, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.

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

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

Please visit www.lendinglies.com for more information.

 

You Don’t Need to Call a Forensic Investigator as an Expert: He or she can be called as a fact witness thus avoiding any requirements to qualify an expert.

I keep getting messages from homeowners who are furious with the corrupt system of the courts because they tried to call a witness to testify as an expert and they failed. Calling an expert means you must fulfill numerous requirements. One of them, the threshold question, is whether an expert is even needed.

The Judge determines if an expert is needed, And as the trier of the facts, he or she considers whether the court possesses sufficient Information about how foreclosures work. No, the court need not know about how securitization works because the case is not about whether securitization was proper or improper. The case is about whether the plaintiff is the owner of an unpaid debt owed by the homeowner to the claimant. It is about whether the declaration of default was properly and timely issued by a party with full authority to make such a declaration.

The case in foreclosure is not about whether the opposition consists entirely of thieves even if they are thieves. That is for later after you’d defeat their case against the homeowner. And that is where both pro se litigants and lawyers often go off the rails. In court, there is specified order in which actions can be taken. If you go out of order you are either taken out of the contest or put to the back of the line. the fact that you don’t understand that order is not a problem for the court. ANd it is not a sign that the court is corrupt.

So it is not unusual for a court to refuse to allow someone to testify as an expert even if they are an expert. And it is a mistake for a forensic expert to offer opinions for which the proposed expert possesses no special qualifications, education, licensing, or training.

But that person may still testify. If they have done work doing research or investigating the documents or events, they can testify as to what work they performed. The court will not stop them from testifying about that. And they can testify about apparent inconsistencies without offering an expert opinion (for which they are ordinarily not legally qualified to render).

The investigator can testify that he was asked to investigate who paid for the alleged underlying obligation, whether that obligation still exists and whether the documents proferred by the opposition are consistent with the allegations of the claim —- as long as it is not a legal opinion, which will be excluded.

So the moral of this story is don’t call your investigators to testify as experts unless they actually do have some legally recognized expertise that is relevant to the issues in the case. Call them as fact witnesses and during their testimony, they can offer their opinions unsolicited if there is no objection and no motion to strike.

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

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

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

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

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

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

Click here for Administrative Strategy ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
CLICK HERE TO ORDER CASE ANALYSIS 
*

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

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

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

Please visit www.lendinglies.com for more information.

It’s the small stuff that reveals the fraud

Several contributors to the blog have identified specific information regarding the true owner and operator of physical mail addresses used in connection with correspondence, statements, and notices sent out under the letterhead of some company that is claimed to be a servicer.

This is important information as it supports the premise about the role of companies who are named “servicers.” In plain language, the named “servicer” can honestly say that they never said that. In plain language, they can honestly say that they were only hired to report on data provided by third parties. This information they have uncovered shows that previously unknown third parties were the actual parties who were using these mailing addresses. This is important because there is no disclosure about the source of data.

*
This is an obtuse concept to virtually anyone who is not a trial lawyer. Why would anyone other than the named “servicer” be allowing a third party to receive and send correspondence, notices, and statements in its name? Their answer of course is that they can outsource anything and it is their right to do so. But in order to outsource a function, you must have the right and duty to perform the function in the first instance.
*
The next level of analysis is even more important: If third parties are physically handling the checks through the hidden use of these mailing addresses, and they are physically receiving the money sent in by homeowners and third parties are receiving the notices of electronic payment, then those are the only parties who are receiving the checks and notice of electronic payments. This is not rocket science. You can’t account for a transaction in which you were not the least bit involved. If you produce such an accounting it is fictional and not evidence. At best it is a report of a report which is clearly barred by hearsay.
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And if the deposits are made to an account not controlled by the named “Servicer,” then there is no legal basis for asserting that records of receipts are records of the “servicer.” The servicer in such instances is merely reporting on the receipt of reports issued by third parties.
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Here is a fictional summary of real testimony. This is not complete nor necessarily accurate, but it is a reliable guide for the practitioner who is seeking to blow the witness up at trial. I publish it simply because there is nothing any law firm can do about it. They have no client and there is no claim.
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The plain truth is that companies named as servicers do not receive or disburse money from homeowners. Therefore their records consist entirely of reports received from others. Accordingly, they are not admissible in evidence because they are barred by the hearsay rule. You can get them out with a motion to strike or keep them out with objections after voir dire. Without them, there is no case. There is no case because there is no real claim.
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NOTE: You can use the same structure to show that the law firm might represent the company named as servicer but does not represent or have an attorney-client relationship with the “trustee” named as claimant or Plaintiff in the foreclosure action.
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FICTIONAL TESTIMONY: CROSS-EXAMINATION (POSSIBLY VOIR DIRE DEPENDING UPON TOLERANCE BY THE JUDGE)
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The witness has testified that he is an authorized representative of a company that has been named (by someone) as a “servicer.”
*
Neil: Do you believe that you have seen all the pertinent records of your employer regarding any transactions with the defendants?
Witness: Yes.
Neil: Is there anything that was withheld from you about which you are aware?
Witness: No
Neil: So you are completely satisfied that you have all the information necessary to testify about the existence, status, and ownership of an unpaid loan account due from the defendants?
Witness: Yes
Neil: Referring to Exhibit X which is entitled “Payment History” is it your understanding that this represents all the data about the transactions known to your employer regarding an obligation owed by defendants to U.S. Bank?
Witness: Yes
Neil: Is it your testimony that your employer performs servicing functions with respect to an obligation owed by the defendants to U.S. Bank, N.A.?
Witness: Yes
Neil: And by servicing functions would you agree that means several functions including receiving payments, accounting for them, and making disbursements to creditors?
Witness: Yes
Neil: So you are testifying that your employer is engaged in receiving payments, accounting for them, and making disbursements to creditors?
Witness: Yes.
Neil: Can you show me where this Exhibit shows any disbursements to any creditor to whom defendants owe money?
Witness: No
Neil: Have you seen any record of your employer that shows data entries upon your employer’s disbursement to any creditor of the defendants?
Witness: No
Neil: Do you know if your employer ever made a disbursement of money to any creditor of the defendants?
Witness: No
Neil: Can you identify the department in your employer that physically receives checks or notices of electronic payments from homeowners?
Witness: No
Neil: Do you know whether the checks or electronic payments are deposited into a bank account owned or controlled by your employer in the ordinary course of business?
Witness: No
Neil: Are you testifying that you know for a fact that your employer receives money from homeowners including defendants when they were making payments?
Witness: No
Neil: Your testimony is based upon your review of reports you received on-screen on a computer, is that right?
Witness: Yes
Neil: So when you testified that your employer performs servicing functions with respect to an obligation owed by the defendants to U.S. Bank, N.A., you were making an assumption based upon things that were told to you, is that right?
Witness: Yes
Neil: And you have no personal knowledge about the flow of money deposits and money withdrawals into or out of bank accounts owned or controlled by your employer, is that right?
Witness: Yes
Neil: Have you ever made a single or bulk deposit of money received from homeowners to an account designated by your employer?
Witness: No
Neil; Have your ever been authorized to make a withdrawal of money from any bank account maintained, owned, operated or controlled by your employer?
Witness: No
Neil: Have you spoken with other people whom you believed to be in the employment of your employer?
Witness: Yes
Neil: Have any of those people ever indicated that they had ever performed any tasks relating to the receipt or disbursement of money that had been received from homeowners?
Witness: No
Neil: Have you spoken with any other people whom you believed to be in the employment of any employer regarding receipts and distributions of money received from homeowners?
Witness: No
Neil: So you have no personal knowledge about what person or company actually received any money or how they accounted for that receipt, correct?
Witness: Yes
Neil: And you have no personal knowledge about the location, ownership or control of the computers on which any data reflecting money deposits or money withdrawals are made, is that right?
Witness: Yes
Neil: So your introduction of the Payment History is your testimony that this is what you printed out from a computer screen that contained a report of when certain payments were made and what charges were applied, is that true?
Witness: Yes
Neil: You do not have any personal knowledge about who made any data entries, why they did so or how that data appeared so it could be reported, is that true?
Witness: yes
Neil: Have you ever seen any accounting ledger or financial record of any type that reflected any financial activity or data from U.S. Bank, N.A.?
Witness: No.
===============
DID YOU LIKE THIS ARTICLE?
Nobody paid me to write this. I am self-funded, supported only by donations. My mission is to stop foreclosures and other collection efforts against homeowners and consumers without proof of loss. If you want to support this effort please click on this link and donate as much as you feel you can afford.

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

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

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

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

Click here for Administrative Strategy ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
CLICK HERE TO ORDER CASE ANALYSIS 
*

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

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

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

Please visit www.lendinglies.com for more information.

Gary Dubin on the Attack in California: Simple Truths About Foreclosure Defense

Dubin reports that the status of judicial consensus in California is pretty much the way it was before he entered the battle in Hawaii. I think he is starting to change that with inventive ways to educate the courts and give them pause before they rubber-stamp another foreclosure.

see Dubin Graphic Foreclosure Defense

The simple truth is that unless the person is steeped in education, experience, and training in investment banking and specifically the structuring of transactions, they cannot imagine how it could be true that an apparent transaction could have occurred with homeowners, leaving the homeowner with no liability.

Foreclosure today is largely about winning at all costs without regard to whether the “dark side” has any right to the remedies they are seeking.

Foreclosure defense is all about focusing the judge’s attention away from the documents and on the presence or absence of admissible evidence — i.e., testimony from a competent witness providing a proper foundation for introducing a document into evidence where that document was NOT prepared strictly for use in a trial proceeding.

Foreclosures are about money. Only people who are owed money are allowed to sue for it or get any known legal or equitable remedy. In today’s judicial arena there is an absence of any legally recognizable entity, person or company who receives such a judgment because none of the names used as claimants in foreclosure are expecting to receive any remedy. And they don’t — directly or indirectly.

Ask any officer with knowledge of this fake REMIC scheme whether they have ever received the money proceeds from the forced sale of property and they will admit that (a) they never owned any loan account and (b) they never received any money, title or anything else.

I think the underlying theme or thread is simple: this is a case where the attorneys themselves propagate these false claims and not U.S. Bank. They have no admissible document or testimony that is not fabricated.

Accordingly, everything they do in court is geared to one purpose ONLY: avoid admissible evidence requirements and stick with presumptions raised from fabricated documents.

There are and were many lawyers who easily recognize the absence of credible admissible evidence, starting with the fact that the records of a company whom the lawyer claims is a servicer are (a) not records of that company but more importantly (b) the reports from a company who has an existential interest in the outcome of litigation — i.e., that the foreclosure case MUST be won.

By definition, such reports are not credible and may not be admitted into evidence to prove the truth of any matter asserted unless there is corroborating testimony or exhibits that can be independently confirmed to show that the transactions memorialized in the purported documents are events that did happen and not just imaginary reports that some robowitness says or testified happened — despite the obvious absence of any personal knowledge regarding the origination or “servicing” of payments that homeowners were falsely induced to make.

But it is obvious that the lawyers who possess the requisite amount of legal knowledge, experience, and training to handle that matter at trial in pretrial litigation, do not accept these cases — despite the prospects of an easy win, satisfied clients, achieving justice and making money doing it.

Why? The answer is simple: the more they win the larger the target on their back and virtually all of them have been targets of prosecution by the FTC, Bar Associations, and other agencies.

Here is a modest proposal. the FTC and the Bar associations should be doing their jobs. Virtually all foreclosures are business ventures for profit led by law firms that were often created for the sole purpose of receiving outsized fees and profits for prospecting false claims of debt, default, and foreclosure.

If the lawyers are successful at misleading the court then they are successful at forcing the sale of homestead property where the money proceeds will all be distributed into the operating or off-balance-sheet accounts of several companies.

This is a business venture whose principal characteristic is fraud and deceit.

  • The FTC should be pursuing those ventures and not just those of defense lawyers and other parties who attempt to create vehicles for mass joinder actions against the monolith investment banking industry.
  • The Bar associations should be prosecuting lawyers for telling the court that they have a client who is named as a plaintiff or claimant when they don’t have any client relationship, contact, or instructions received from such companies named as “claimants.”
    • Such lawyers should be liable for restitution to homeowners whose homes were forced into an apparent auction sale.
    • Those homes were the property of the homeowners and the lawyers had no right, justification, or excuse for pursuing any attempt to take their property.

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

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

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

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

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

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

Click here for Administrative Strategy ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
CLICK HERE TO ORDER CASE ANALYSIS 
*

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

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

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

Please visit www.lendinglies.com for more information.

So do I owe the money or not?

I think that the best answer you can give is no, there is not any money owed. You can only “go there” (money owed) if you describe the transaction as a loan. But every loan has some basic common sense characteristics or attributes:

  1. There is no other reason or intent to give the consumer any money.
  2. The transaction is legal — i.e., it complies with all federal and state laws, rules, and regulations governing lending and servicing.
  3. The transaction creates a loan account reflected on the general ledger of the lender as an asset receivable.
  4. The lender has an actual risk of loss if scheduled payments are not received.
  5. The lender has funded the transaction by using its own assets or its own credit, wherein the lender is liable for repayment of the funds loaned to the lender.
  6. The lender owns the loan account receivable when the transaction cycle is complete.
  7. The lender’s business plan is to earn a profit through repayment of the loan together with interest and other fees or, as is frequently asserted, the profit is earned through the sale of the loan.
  8. If the loan originated with the intent to sell it in the secondary market, the intent is to receive payment in exchange for a conveyance of the underlying obligation.
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After some 50 years of experience in dealing with securities and investment banking issues, as a trained security analyst and having close ties with those who play on Wall Street, I can state unequivocally that no investment bank has ever wanted to loan money to any consumer — and no investment bank has ever done so. In fact, no investment bank goes into any deal without passing the risk on to someone else.
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In the current iteration of securitization, Wall Street found and launched the holy grail of investment banking: what if you could underwrite the sale of securities and keep all of the proceeds? This notion throws out the role of every securities firm that ever existed and inserts a new role.
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No longer acting as a broker, it is creating, issuing, and selling “certificates” that were redefined in 1998-1999 as “Not Securities” and therefore not subject to regulation, but which could nonetheless be offered for sale and trading in wide distribution.
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By simply indexing on the prima data of a transaction with a homeowner, the investment firm can attribute a value of the certificate as a “secured” instrument despite no collateral guarantee for payments as set forth under the certificate indenture.
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By simply indexing the present value of various investment grade products, the investment firms were able to price the certificates far higher than the value of any transaction with a homeowner or a group of homeowners.
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By commingling funds and data with other securitization infrastructures, re-underwriting the same payment to homeowners into new certificates, the investment firm was able to sell the same transaction in dollars as though it was a new transaction without limit — or any accountability.
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So the bottom line is that the securitization plan was created to multiply the dollars originally paid to start the first level of what was in actuality a pyramid scheme. The money paid to the homeowner was in exchange for the issuance of the primary or base certificate or securities — the note and mortgage. The revenue generated for the investment firms skyrocketed from and been underwriting fees of at most 15% to underwriting profits of 1200%.
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Underwriting standards were ignored in terms of lending but followed with respect to creating the foundation for sale of securities. This created the added benefit of knowing that many “loans” would “fail” and that the investment firm could then take even more money from the sale of the property while at the same time giving apparent substance to the illusion that the transaction was a loan.
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In addition, knowing that the homeowners would eventually en masse stop making scheduled payments, the investment firms tricked and deceived insurance carriers and hedge funds into “swap” contracts and other hedge products and insurance policies that were strictly paid to the investment firm and not to the investor who bought certificates.
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And finally, the people at the top of the pyramid knew that the market would collapse from the weight of foreclosure cases, creating another opportunity to underwrite more certificates that were sold to investors who thought that the “buyers” were third party investors, thus starting a whole new round of continuing securitization.
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The Achilles heel of this plan was of course that the homeowner had to agree to pay back the only consideration he or she was receiving to execute the primary or base securities. And the only way homeowners would do that is if they knew nothing about the true nature of the transaction and they were successfully deceived into thinking the transaction was a loan.
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So given all that, let’s look at the above attributes of a loan again. The inescapable conclusion is that the homeowner believes it to be a loan but that is not enough to make it a loan.
  1. There is no other reason or intent to give the consumer any money. Now we know that there was no reason to make a loan but there were plenty of reasons to sell securities. 
  2. The transaction is legal — i.e., it complies with all federal and state laws, rules and regulations. Now we know that the disclosure requirements and underwriting requirements contained in lending and servicing laws were regularly violated to cover up what the securities firms were doing. 
  3. The transaction creates a loan account reflected on the general ledger of the lender as an asset receivable. Now we know that there is no loan account and there is no accounting ledger that reflects a loan account receivable. Nobody wanted that risk of loss. 
  4. The lender has an actual risk of loss if scheduled payments are not received. Now we know that there was no risk of loss to the originator because the transaction was structured as a warehouse loan but in substance, the transaction was a fee for service. I argue that was the nature of the transaction with the homeowner — fee for service — and so far, not one person from the industry has corrected me. 
    1. There also was no risk of loss to the investment firm (bank( because they were borrowing money to fund payments to sellers of the property but repaying those loans with the much greater amount of money proceeds from the sale of certificates. 
    2. And there was no risk of loss to the investors, at least initially, because they were not the owners of the homeowners’ promises to make scheduled payments. They were the owners of a conditional, discretionary promise to make scheduled payments made by the underwriting investment firm. Unknown to the investors (or perhaps they didn’t care) the investment firm would continue making payments from a reserve fund created by withholding from the gross profit of the sale of certificates for that particular securitization structure plus the proceeds of sales of other certificates. 
      1. In fact, this was yet another opportunity to sell yet another round of certificates. The payments made to investors were designated as “Servicer advances” even though the funds came from the investors. Under the indenture, the “servicer” could recoup the “advance” upon liquidation of the property — which is why most foreclosure threats become reality rather than a “workout” that preserves the property and the transaction. 
      2. Servicer advances became receivable. This resulted in the securitization of servicer advances which was realized through the forced sale of the property.
  5. The lender has funded the transaction by using its own assets or its own credit, wherein the lender is liable for repayment of the funds loaned to the lender. Now we know this was never true. 
  6. The lender owns the loan account receivable when the transaction cycle is complete. Now we know that this never happens even if a brand name bank did the “loan” underwriting.”
  7. The lender’s business plan is to earn a profit through repayment of the loan together with interest and other fees or, as is frequently asserted, the profit is earned through sale of the loan. Now we know that rather than earning profit from payments of interest, the goal was to create revenue and profits on an unprecedented level from the sale of certificates dubbed “MBS” (even though they were neither securities nor backed by any obligation, note or mortgage from any homeowner) — giving rise to the “factor of 10” payment scale that was used to compensate anyone who participated in this scheme — all except the homeowner who received literally less than nothing once you deduct the principal and “interest” that is “owed” on a nonexistent loan account. 
  8. If the loan originated with the intent to sell it in the secondary market, the intent is to receive payment in exchange for a conveyance of the underlying obligation. Now we know that with very few exceptions no originator ever received payment from a buyer of any alleged obligation due from the homeowner. And we also know that means that anyone claiming rights to administer, collect or enforce based upon such purchase and sale is committing an act of deception. This explains why there was fraud bloom — the sudden appearance of hundreds of thousands of fabricated documents containing false information and forged signatures to make it appear that such a sale occurred.
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Think I am wrong? Find one qualified person with securities and law license who disagrees with this assessment. I have been baiting the opposition for 16 years now and they still have not come up with anyone.
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Think it doesn’t matter? I have been lead or lead consulting attorney in thousands of foreclosure cases over the past 16 years. For those cases where we followed the script — “show me the loan account on the books of the designated creditor” — 80% were paid off in confidential settlements. I have had cases with home values as high as $5 million and as low as $15,000. Those who and the resources to create and aggressively litigate a coherent defense narrative based on what is contained in this email have an 80% chance of winning flat out which means no debt, no lien, and payment of money.
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Emerging from the rubble of litigation for the 20 years are some strategies I am now exploring strategies and tactics in which an early termination of the foreclosure claim might be obtained. I will report later on my success. Or you might see it yourself when the “market” for “MBS” collapses again.
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BOTTOM LINE: THIS PLAN OF SECURITIZATION WOULD HAVE WORKED JUST AS WELL IF INVESTORS AND HOMEOWNERS RECEIVED TRUE DISCLOSURES AND WERE COMPENSATED FOR THE TRUE RISKS.
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THE ONLY REASON THAT DIDN’T HAPPEN IS THAT THE INVESTMENT BANK CORRECTLY ASCERTAINED THAT THEY HAD ENOUGH POLITICAL AND LEGAL POWER TO GET AWAY WITH IT IN MOST INSTANCES.
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THEY LOSE ONLY ABOUT 1/4%-1/2% OF CASES WHICH IS NOT EVEN A ROUNDING ERROR.
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YOUR JOB IS TO GET INTO THAT FRAME OF 1/4%  to 1/2%.
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One final note: Why did NOT those fund managers who purchased those worthless certificates demand a share of at least the insurance proceeds? 
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DID YOU LIKE THIS ARTICLE?
Nobody paid me to write this. I am self-funded, supported only by donations. My mission is to stop foreclosures and other collection efforts against homeowners and consumers without proof of loss. If you want to support this effort please click on this link and donate as much as you feel you can afford.Please Donate to Support Neil Garfield’s Efforts to Stop Foreclosure Fraud.
CLICK TO DONATENeil F Garfield, MBA, JD, 75, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.

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

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

Please visit www.lendinglies.com for more information.

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