Who Can Foreclose?

The plain truth of SAP — Securitization in Practice — is that nobody who paid value received ownership of the debt and nobody who received an instrument of ownership of the mortgage paid value. 

Thus SAP — securitization in practice — splits payment of value from ownership of the debt which produces an extra legal situation because all US law requires that transfer of a mortgage or beneficial interest under the deed of trust is a legal nullity unless accompanied by a transfer of the debt. All US law requires that transfer of the debt can only be accomplished by payment for the debt.

The bottom line is only a claimant who paid value in exchange for ownership of the debt can satisfy the condition precedent in Article 9 §203 of the UCC as adopted in all US jurisdictions. Everything else is just an attempt at justification or rationalization for how the claimant has satisfied that condition.

Understanding the above explains completely why all documents after the loan closing are fabricated, false, forged, backdated and supported by  perjurious testimony. Foreclosure mills are bridging a gap created by investment banks through false statements.

So don’t get lost in the weeds. Most courts and therefore most attorneys get irretrievably confused when the discussion turns to possession, holding or rights to enforce a note. And lawyers fail to object when legal presumptions are applied to situations where possession of the note does NOT imply ownership of the note or the debt.

Note that there is huge difference between standing in the pleading and standing in the proof. In pleading the mere allegation of facts is sufficient to establish standing to proceed. But at trial the claimant is required to actually prove standing, not merely assert it. In practice this means the use of presumptions to arrive at the factual conclusion that the claimant paid for the debt when in fact that never happened.

Point #1: In situations where there is a claim of securitization, there is no case (not ever) in which the claimant (trust, trustee, certificates, certificate holder etc.) is ever alleged to be or ever proven to be the holder in due course (HDC). HDC status means that the claimant can avoid nearly all potential defenses of the borrower. Securitization claimants don’t have this status because they did not purchase the debt for value without knowledge of the borrower’s defenses. Very simple. The object of foreclosure mills is to be treated as HDC without asking for it. The defense narrative is to reveal that HDC status does not apply — not  necessarily because they didn’t pay for it but because the foreclosure mill has never asked for HDC status. Thus the court has no business applying HDC rules.

Point #2: The claimant must own the debt as a creditor — i.e., as a party who paid value in exchange for receiving evidence of ownership of the debt. This is the only party who can claim injury from non performance of the obligation and therefore the only party with standing to bring the claim.

Point #3: Standing to seek judgement on a promissory note does not equal standing to foreclose unless the claimant owns the debt. This is the beginning point of where lawyers, judges, borrowers and everyone else gets confused. In the mind of the public debt=note=mortgage. Legally, equitably and morally the debt, note and mortgage are separate and distinct each carrying its own legal rights that are not necessarily consistent. Receipt of money creates a demand debt (liability) unless there is a clear indication of a gift. Execution of a promissory note creates a liability even if there is no debt — hence mere possession or even rights to enforce a note is not necessarily sufficient to establish standing to enforce the debt or mortgage.  The mortgage, regardless of what it says, can only be used to secure payment of a debt, the terms of which might be contained in a promissory note. Since foreclosure is a process of forfeiture the rules allowing for foreclosure are much more stringent than the rules of getting a judgment on the liability created by a note. A holder in due course may get judgment on the note, and a judgment of foreclosure on the debt. Nobody else can do so. If they have not paid value in exchange for ownership of the debt, they are not legally allowed to foreclose.

Point #4: In practice claiming possession of the note is treated as claiming title to the debt and thence incidentally a claim as holder in due course. It may not be logical or legal but there it is. So the presumption arises as though the claimant was a holder in due course which effectively destroys any defense — if not challenged. The borrower should deny that the claimant has any right to foreclose because it has not in fact paid value in exchange for ownership of the debt. Any purported transfer of a mortgage is a legal nullity without transfer of the debt also. Then the borrower should simply ask a contention interrogatory as to whether the claimant contends that is has paid value for the debt in exchange for ownership of the debt. And a request  for production should ask for evidence of such payment. The refusal to answer or respond is sufficient, after the foreclosure mill has been given several chances to respond, to raise an inference in favor of the borrower. That inference defeats the presumption that the claimant has paid value for the debt in exchange for ownership, which means that any paper transfer of the mortgage is void — unless proven otherwise at trial with evidence instead of presumptions. In actuality, all the borrower is doing is forcing the foreclosure mill to stop using legal presumptions and actually prove their standing,  right to collect, ownership and right to enforce the debt. If they had evidence of payment they would do so. But they can’t because nobody who paid value received ownership of the debt and nobody who received an instrument of ownership paid value.

Here are some quotes from a case in Florida that might help:

At trial, a litigation manager for Bayview testified. He was not a records custodian for RCS or for Bayview. He was not familiar with the computer systems that either of the prior servicers, CitiMortgage and RCS, used for compiling information on the loan or how it was inputted into the systems. He had no information as to whether the information on the loans was inputted into the prior servicers’ systems correctly. He could not testify to the truth or accuracy of RCS’s records, just that they were provided to Bayview.

Seffar v. Residential Credit Solutions, Inc., 160 So. 3d 122, 124 (Fla. Dist. Ct. App. 2015)

He testified that Bayview was the servicer and holder of the note. He believed that Bayview had acquired the note through a purchase agreement with RCS, but he had not seen the agreement, nor did he have a copy of it. His belief that Bayview was the owner of the note under the purchase agreement was based on “a screen shot of our capital assets systems, which has information in regards to the status of the loan with us.” This screen shot was not produced at trial.

Seffar v. Residential Credit Solutions, Inc., 160 So. 3d 122, 124 (Fla. Dist. Ct. App. 2015)

As to the allonge with the blank endorsement from ABN, he did not know when it was executed or whether the signature on it was a “wet ink” signature or a stamp. He did not know whether the allonge was affixed to the note prior to it being filed in the court file. He did not know if the vice president who signed the allonge on ABN’s behalf was in the employ of ABN in November 2009, when Bayview’s records showed that servicing of the loan had been transferred from ABN to Franklin Bank.

Seffar v. Residential Credit Solutions, Inc., 160 So. 3d 122, 124 (Fla. Dist. Ct. App. 2015)

we agree that it presented no competent evidence that RCS was the holder of the note at the time it filed suit or that it was a nonholder in possession and entitled to enforce the note. Therefore, Bayview failed to prove standing.

If the note does not name the plaintiff as the payee, the note must bear a special endorsement in favor of the plaintiff or a blank endorsement…. Alternatively, the plaintiff may submit evidence of an assignment from the payee to the plaintiff …

Even in the absence of a valid written assignment, the mere delivery of a note and mortgage, with intention to pass the title, upon a proper consideration, will vest the equitable interest in the person to whom it is so delivered.

Seffar v. Residential Credit Solutions, Inc., 160 So. 3d 122, 125 (Fla. Dist. Ct. App. 2015)

“Because a promissory note is a negotiable instrument and because a mortgage provides the security for the repayment of the note, the person having standing to foreclose a note secured by a mortgage may be … a nonholder in possession of the note who has the rights of a holder.” Mazine v. M & I Bank, 67 So.3d 1129, 1130 (Fla. 1st DCA 2011).

A “person entitled to enforce” an instrument is: “(1) [t]he holder of the instrument; (2)[a] nonholder in possession of the instrument who has the rights of a holder; or (3)[a] person not in possession of the instrument who is entitled to enforce the instrument pursuant to s[ection] 673.3091 or s [ection] 673.4181(4).” § 673.3011, Fla. Stat. (2013). A “holder” is defined as “[t]he person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession.” § 671.201(21)(a), Fla. Stat. (2013). Thus, to be a holder, the instrument must be payable to the person in possession or indorsed in blank. See§ 671.201(5), Fla. Stat. (2013).

Seffar v. Residential Credit Solutions, Inc., 160 So. 3d 122, 125 (Fla. Dist. Ct. App. 2015)

Coronavirus Covid19 and Foreclosures

I’m getting questions about moratoriums etc. Here are the best answers I can give.

  1. There is no moratorium — at least not yet.
  2. There are increasing reports about sheriffs delaying forcible removals from homes simply because of the risk to the sheriffs and the risk to the communities of displacing people from their homes and all their belongings.
  3. Many courthouses are either shutdown or restricting activities to essential functions. This does not mean that foreclosures can’t be electronically filed in many jurisdictions.
  4. Foreclosure activity is slowing but that only means a spike later when they catch up and exacerbated by people who may lose their jobs.
  5. Anyone entering a foreclosed home is entering a space with unknown risks. That is especially true where people have been recently dispossessed. Investors beware!
  6. At this point anyone going to a courthouse is taking a big risk and anyone coming back from a courthouse is risking the health and lives of others.
  7. There is no legal restriction against filing documents that initiate or pursue foreclosures (other than the fact that most of them are illegal.)
  8. Stay safe and sane! Use any delay you get to prepare the fight!

Rubber Stamping Lying Liars and Their Lying Lawyers

It will take a political movement to force the state bar associations to address this issue.

Bill Paatalo writes:

Just filed by Russ Baldwin to the Oregon Supreme Court. The excerpts by the court are priceless. Here the court flat out catches the bank lawyers lying to the court and providing false declarations, yet signs off anyway. Up the chain it goes, and the Appellate court does the same. The court states that if attorneys cannot be trusted, the whole system falls apart, yet proceeds to let the system “fall apart.”
*
The question is obvious – if the foreclosures were in anyway legitimate in terms of who was attempting to foreclose, there would be no need to resort to perjury and fraud upon the court.
*
“The circuit court opined:
*
THE COURT: So here’s — you know, frankly, here’s my concern. I
can’t tell you how many foreclosure defaults I sign a month. And all I’ve got
in a default situation is reliance on the integrity of the lawyer that’s
submitting it, right? Because there’s no way I can go behind and figure out.
If people put an affidavit in there that says they — no one said they were
going to appear and we did the publication and it’s all — I sign it, right?
And the end result is if you do that wrong, like let’s say there was no
lawyer in this case, the end result would have been that this house would
have been foreclosed on and who knows how long it would have been before
the issue came up, if at all. Because different defendants have different
abilities to even identify the issue, right?
MR. BONFIGLIO: Correct.
* * *
THE COURT: What — what happened? Why, after defense counsel
called I guess it was your office and spoke with somebody and said I’m
going to appear, why, in a million years, would somebody then file for a
default judgment after knowing they didn’t serve properly? I mean, all you
have to do is look and you know, ooh, this publication is wrong. Not — it’s
nothing to take much to look at it. You just see that it’s not even in Lane
County and you know. And then make these false declarations.

From Unknown Creditors to Unknown Landlords: Wealth Transferred from Homeowners to Investment Banks to Hedge Funds

Success in fraudulent foreclosures meant that the winners had to launder the corrupted title, so they sold it to hedge funds who then outsourced the renting to still other firms who in turn outsourced the rights to still other firms. That is exactly the same “formula” used by the banks when they started securitization, with “trustees.” “trusts”, “master servicers”, “subservicers” and “attorneys in fact.”

Seehttps://www.nytimes.com/2020/03/04/magazine/wall-street-landlords.html?referringSource=articleShare

And the same truth holds. If the original foreclosure was fraudulent then the title transferred on paper was invalid. And if the title transferred on paper was invalid then the new owner had no more right to rent the property than the foreclosure mill had when they invoked foreclosure process in order to obtain revenue instead of restitution for an unpaid debt. But unchallenged and unchecked that is the way it will go — all to the extreme detriment to former homeowners and current renters.

The original foreclosure is fraudulent if the named claimant did not exist and/or did not possess any legal claim to collect money from the borrower. The Wall Street banks chose this path pof  laundering because in most US jurisdictions it is not possible to defend evictions by challenging the title of the landlord.

So the fraud continues and multiplies. And normal people who would otherwise be buying homes are being squeezed out of the housing market. When the dam breaks there will be trouble. Meanwhile with the equivalent of free money flowing everyone is skimming so much off the top that there is little left.

It was clear from the beginning that there was something a little unusual about his new landlords. Instead of mailing his rent checks to a management company, men would swing by to pick them up. Within a few months, Ellingwood noticed that one of the checks he had written for $2,000 wasn’t accounted for on his rental ledger, though it had been cashed. He called and emailed and texted to resolve the problem, and finally emailed to say that he wouldn’t pay more rent until the company could explain where his $2,000 went. For more than three months, he withheld rent, waiting for a response. Instead, the company posted an eviction notice to his door.

FREE REVIEW:

If you want to submit your registration form click on the following link and give us as much information as you can. CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us.

In the meanwhile you can order any of the following:
*
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
*
CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
*
FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. IN FACT, STATISTICS SHOW THAT MOST HOMEOWNERS FAIL TO PRESENT THEIR DEFENSE PROPERLY. EVEN THOSE THAT PRESENT THE DEFENSES PROPERLY LOSE, AT LEAST AT THE TRIAL COURT LEVEL, AT LEAST 1/3 OF THE TIME. IN ADDITION IT IS NOT A SHORT PROCESS IF YOU PREVAIL. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
*
Please visit www.lendinglies.com for more information.

 

Tonight! Banks Are Using Lawyers’ Litigation Immunity As A Weapon 3PM PDT, 6PM EDT

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

with Charles Marshall and Bill Paatalo

Or call in at (347) 850-1260

3PM PDT, 6PM EDT

Bill Paatalo discusses on the Show today a case out of the judicial foreclosure state of Kentucky, in which the Defendant has countersued the foreclosing ‘Trust’–Christiana Trust, A Division of Wilmington Savings Fund Society, FSB. See Bill Paatalo’s Blog post from March 5, 2020, and Neil’s Blog for further case details, etc.

The attorney retained by the Servicer, Select Portfolio Servicing, tried recently to withdraw from the case, conceding on the record as a basis for the withdraw, that while he had contact with SPS, who retained and communicated with him re the lawsuit filed at the direction, ostensibly on behalf of the Christiana Trust (CT), CT disavowed having any contact with SPS re the mortgage loan at issue, and further stating that there is no legal entity attached to the lawsuit from CT.

Mr. Hill filed the motion to withdraw as legal counsel, because the countersuit filed by Defendant, led him to confirm with CT that he would legally represent them as a named Plaintiff on same counterclaims. Yet he literally could contact no one at CT who represented being connected to the lawsuit, and thus could not confirm retainer arrangements–re either the representation–or any retainer payment to cover his potential legal fees.

The Court did the right thing here, refusing to let him out of the case. We will discuss on the Show today what this means for borrowers around the country.

One aspect to this: How to use discovery to ferret out this type of situation, or a similar one, in foreclosure cases, either judicial or non-judicial cases.

How to Enforce Discovery

In a recent case decided in the State of Washington, the Judge correctly stated the elements of good discovery requests, the reasons for overruling objections to discovery and the reasons for sustaining objections to discovery:

In response to the interrogatories, Plaintiff raised broad objections and did not provide any of the requested information. (See id. at 38-43.) She also indicated in each response that she would later provide the requested information if it was “relevant” to responding the interrogatory. (See id. at 24-36, and 38-43.)

White v. Relay Res., No. C19-0284-JCC, at *2 (W.D. Wash. Feb. 14, 2020)

Defendant attempted to meet and confer with Plaintiff on December 23, 2019, two days after receiving Plaintiff’s responses. (See Dkt. No. 93 at 47.) Defendant expressed concern with sufficiency of Plaintiff’s responses and offered an extension for Plaintiff to supplement her responses. (Id.) Defendant also requested an in-person meeting to attempt to resolve the discovery dispute, but Plaintiff refused to meet outside the State of Virginia. (See id. at 51.) Plaintiff also refused a teleconference, stating that she did “not have any line of communication open except emails and written communication.” (See id. at 2, 54.)

White v. Relay Res., No. C19-0284-JCC, at *2 (W.D. Wash. Feb. 14, 2020)

Accordingly, Defendant proceeded to email Plaintiff with specific examples of its “serious concerns regarding the insufficiency of [her] responses.” (Id. at 55.) On December 27, 2019, Plaintiff supplemented her responses to the requests for production with three screenshots of email correspondence between Plaintiff and Defendant’s employees about benefits. (Id. at 62-64.) She also provided Defendant with a scanned page from a yearbook. (See id. at 55-64.) In response, Defendant informed Plaintiff that if she did not provide responsive documents or answers to its interrogatories by the extended deadline, it had no choice but to file a motion to compel with the Court. (See id.) Instead of further supplementing her responses, Plaintiff replied, “Ok. File Motion to Compel.” (See id. at 93.)

White v. Relay Res., No. C19-0284-JCC, at *2 (W.D. Wash. Feb. 14, 2020)

Discovery motions are strongly disfavored. “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). If the parties are unable to resolve their discovery issues, the requesting party may move for an order to compel. Fed. R. Civ. P. 37(a)(1). Any such motion must contain a certification “that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to resolve the dispute without court action.” W.D. Wash. Local Civ. R. 37(a)(1). “A good faith effort to confer with a party or person not making a disclosure or discovery requires a face-to-face meeting or a telephone conference.” Id.

White v. Relay Res., No. C19-0284-JCC, at *3 (W.D. Wash. Feb. 14, 2020)

Here, although the parties did not meet in person or have a telephone conference, Defendant made a good faith effort to satisfy the meet-and-confer requirement before filing the instant motion to compel. Defendant made multiple attempts to resolve its discovery dispute before reaching a genuine impasse on December 30, 2019, when Plaintiff told Defendant to “File Motion to Compel.” (Id. at 65.) Consequently, Defendant has satisfied the meet-and-confer requirement.

White v. Relay Res., No. C19-0284-JCC, at *3 (W.D. Wash. Feb. 14, 2020)

“Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1), 34(a). A plaintiff is required to “produce and permit the requesting party to inspect” the designated documents as long as the request is relevant and proportional. Fed. R. Civ. P. 34(b)(2)(B)-(C). If a party objects to a request for production, that party “must state whether any responsive materials are being withheld on the basis of that objection.” Fed. R. Civ. P. 34(b)(2)(C). If a party objects to part of a request, it must “specify that part and permit inspection of the rest.” Id.

White v. Relay Res., No. C19-0284-JCC, at *4 (W.D. Wash. Feb. 14, 2020)

Request for Production No. 2 asks for all documents relating to Plaintiff’s employment, “including, but not limited to, Plaintiff’s employment application, job offer, job descriptions, handbooks, manuals, policies, compensation records, requests for accommodation, and other such documents.” (Dkt. No. 93 at 25.) Plaintiff objected on the grounds that the request was “unclear” and “vague.” (Id.) However, Plaintiff’s own response contradicts the assertion that the request is unclear and vague because she nevertheless provided several important dates relating to her employment history. (Id.)

White v. Relay Res., No. C19-0284-JCC, at *4 (W.D. Wash. Feb. 14, 2020)

Request for Production No. 9 asks for all of Plaintiff’s “social media communication, including wall posts, private messages and/or threads, photographs, or other native data that relates to Plaintiff’s employment with Defendant or Plaintiff’s allegations and Complaint.” Plaintiff objected to this request, stating that it was vague, unclear, and overbroad. But the request specifies designated documents and types of communications sought, and the Court finds this request sufficiently clear. Fed. R. Civ. P. 34(b)(1)(A). Nor is Defendant’s request overly broad; the request is directly relevant to the disputed issues and proportional to the needs of the case. Fed. R. Civ. P. 26(b).

“Plaintiff’s perfunctory objections do not reflect a good faith effort to comply with discovery rules. Plaintiff must make reasonable efforts to provide documents responsive to Defendant’s requests for production. Failure to do comply may result in sanctions, including dismissal of the present action. Fed. R. Civ. P. 37(b)(2)(A).” White v. Relay Res., No. C19-0284-JCC, at *5 (W.D. Wash. Feb. 14, 2020)

An interrogatory may seek information about “any matter that may be inquired into under Rule 26(b),” and “must, to the extent it is not objected to, be answered separately and fully in writing under oath.” Fed. R. Civ. P. 33(a)-(b). “The grounds for objecting to an interrogatory must be stated with specificity.” Id. A responding party is not required to conduct extensive research to answer an interrogatory, but a reasonable effort to respond must be made. Id.; see also Thomas vCate715 F. Supp. 2d 1012, 1032 (E.D. Cal. 2010) (“Rule 33 imposes a duty on the responding party to secure all information available to it.”).

White v. Relay Res., No. C19-0284-JCC, at *5 (W.D. Wash. Feb. 14, 2020)

Plaintiff’s responses to Defendant’s interrogatories are obstructive and dilatory. Within 30 days, Plaintiff must provide  Defendant with the information requested in each interrogatory. Failing to make reasonable efforts to respond to Defendant’s interrogatories may result in sanctions under Rule 37, including dismissal of the matter.

FREE REVIEW:

If you want to submit your registration form click on the following link and give us as much information as you can. CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us.

In the meanwhile you can order any of the following:
*
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
*
CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
*
FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. IN FACT, STATISTICS SHOW THAT MOST HOMEOWNERS FAIL TO PRESENT THEIR DEFENSE PROPERLY. EVEN THOSE THAT PRESENT THE DEFENSES PROPERLY LOSE, AT LEAST AT THE TRIAL COURT LEVEL, AT LEAST 1/3 OF THE TIME. IN ADDITION IT IS NOT A SHORT PROCESS IF YOU PREVAIL. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
*
Please visit www.lendinglies.com for more information.

There is no bank

Foreclosures are based on illusion. If the debt is subject to claims of securitization there is no bank — by definition. That’s not an opinion. It is a fact. As soon as you allow use of that word “Bank” you are adding to the illusion that you owe money to a bank. You don’t. Refer instead to “the claimant” or, if you must, to “the trust”.

You should object to the use of the word “bank” in describing the claimant and you should never use it yourself. Using the word “bank” is a tacit admission that you owe money to a bank which is what the foreclosure mills want the judge to think. If you win against “the bank” you are perceived as undermining our institutions.

But if you win against a trust because it doesn’t exist or at least does not own the debt, then you are perceived as just beating up some private group of investors even though none of them have any right, title or interest to collect, process, administer or enforce your debt.

Words matter. If you want the judge to see that you are victim to a fraudulent scheme, stop using the words employed by foreclosure mills — especially the ones that further their narrative.

“The bank” is a phrase that is often used interchangeably with “lender”. It is most often used in attempts to force the sale of residential homes when the debt is subject to claims of securitization. The foreclosure mills use it because it melds the “originator” with the name used as trustee of a trust, which always has a bank name in it. But that bank name has no right, title or interest in your loan and never receives any payments from borrowers, nor proceeds from foreclosures.

The bank name used as the lead descriptor in foreclosures is a ruse to have judges assume that the debt has gone through normal channels.  The judge then sees the case as Bank vs you.

The first rule in taking control of the narrative is to highlight your objections to the judge. For example:

“Objection your honor. Counsel is using the term bank when in fact the claimant, according to them, is a trust.”

The response will be that you are a fool etc. The bank is the trustee of the trust so what is wrong with naming it?

“That’s true your honor, assuming the trust exists and it owns the debt. But is not accurate to say that the bank is the claimant. Normally in litigation the trust is referred to by name not the trustee, even though the trustee is named as the entity representing the claimant.”

Full stop. Your point is made. It doesn’t matter how the judge rules. You have planted the seed of doubt. And you have pushed opposing counsel off balance.

THEN you keep referring to the trust and you refrain from using the word “bank.” Eventually when it comes to discovery and other  issues relating to the scope of duties of the trustee, your demands will more likely be sustained by the judge.

And of course the big question is when did my debt get entrusted to the named trustee? The answer is never. So it isn’t in the trust even if the trust existed. And that means the wrong claimant is making the claim.

Practice note: It will never be the right claimant unless the interests of the investors who bought certificates (value paid) are conjoined with the interests of the underwriter (value paid) and the originator (payee on note and mortgagee on mortgage). That will never happen because it puts the investment bank in the position of undisclosed lender violating TILA, FDCPA etc.

That was the whole point of using an originator — creating a vehicle for unregulated lending. The reason is simple: the one party (investor) who paid value never received ownership of the debt.  

FREE REVIEW:

If you want to submit your registration form click on the following link and give us as much information as you can. CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us.

In the meanwhile you can order any of the following:
*
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
*
CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
*
FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. IN FACT, STATISTICS SHOW THAT MOST HOMEOWNERS FAIL TO PRESENT THEIR DEFENSE PROPERLY. EVEN THOSE THAT PRESENT THE DEFENSES PROPERLY LOSE, AT LEAST AT THE TRIAL COURT LEVEL, AT LEAST 1/3 OF THE TIME. IN ADDITION IT IS NOT A SHORT PROCESS IF YOU PREVAIL. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
*
Please visit www.lendinglies.com for more information.

You signed the contract, didn’t you?

Shame and ignorance prevents a homeowner and frequently their lawyer from responding intelligently to that question often posed by the Judge in foreclosure cases.

The judge’s question is perfectly reasonable. If you are saying you didn’t sign anything then the entire case is different than the usual case. He or she wants to know.

If you admit to signing papers and getting money then several things start happening. First there is no formal loan agreement in residential loans. The loan agreement is treated as being in existence by virtue of combining the documents you signed, the disclosures and the applicable statutes governing lending practices.

The judge focuses on signing the note and mortgage. The rest is presumed — that you received money or the benefit of payments made on your behalf and that you agreed to pay it back because it wasn’t a gift or payment for services.

The first thing to remember is that the transaction might not have been a “loan” even though that was your intention and what you thought was happening and probably what you still think happened. Whether you use this piece of knowledge or not is up to your local counsel.

The fact is that the payment of money by the investment bank was merely a cost of of issuing securities. That was the only  business plan. The signing of the documents was a part of the process of issuance of securities.

The payment to the homeowner could only have been a loan if the party paying the money to or for the “borrower” intended to get it back as owner of the debt.

Instead, if the foreclosure is allowed to proceed, the investment bank will receive the proceeds of sale as revenue since it divested itself of all risk of loss and all vestiges of legal or equitable ownership of the borrower’s obligation long ago.

The investment bank in every case pays the money with no intention of retaining the risk of loss or being the owner of the debt, which would mean that it was a lender subject to restrictions contained in lending laws. Note that the banks do not acknowledge or admit that the transactions were table funded loans. They don’t say they own the debt. They just say they want the money and they do it through layers and layers of corporate entities.

And you don’t know if the document they show you in court is actually the document you signed. It almost certainly is not since it was custom and practice to destroy the original notes and rely on images that could be manipulated and doctored.

So the correct answer to the question in the title of this article is

“No, I didn’t sign a contract for the transaction because the entire transaction was never presented to me.

“Instead I was lured into executing documents on the false premise that the Payee shown on the note and the lender shown on the mortgage would become my creditor. They did not. That left me with no creditor because the investment bank that paid for the transaction never claimed ownership of the debt nor did they have any agency relationship with the originator. So I had no creditor.

“If the originator was a creditor they would have paid value for the transaction. They didn’t. And it took great pains to assure that the originator who appears on the note and mortgage was NOT in an agency relationship with the source of funds which was an investment bank looking to issue, sell and trade securities. At no time did the investment bank accept or intend to accept the risk of loss which defines ownership of a debt.

“So I deny entering into a loan contract but I admit that I have a liability for money received or paid on my behalf.  I deny that the note is evidence of that liability because at present, without reformation, it is not payable to a creditor and has never been indorsed to a creditor. (proper legal terminology is “indorse” not “endorse”).

So the note violates all known lending laws basically because it recites a transaction between me and the originator that never happened. The fact this this information was illegally withheld contrary to disclosure requirements that have existed for more than 50 years should be held against them, not me.

“And I deny that the mortgage or deed of trust is a proper lien on my property because first it secures a liability on the note which needs to either be reformed or declared void.

“Second it secures a party with no ownership of the debt contrary to Article 9 §203 of the Uniform Commercial Code as adopted in all U.S. jurisdictions which states that no enforcement of a security instrument is possible without value paid for the underlying debt.

“It also cannot be enforced because of common law accepted in all U.S. jurisdictions that a document of conveyance of the lien without a concurrent transfer of the underlying debt is a legal nullity.

“Once again, the fact this this information was illegally withheld contrary to disclosure requirements that have existed for more than 50 years should be held against them, not me.

“So the security instrument also must be reformed or declared void and certainly all assignments starting with the originator are void because there could not have been a transfer of a debt that was paid for by the investment bank unless the investment bank executed the transfer.

“Therefore the court lacks subject matter jurisdiction over this action. There is no loan agreement yet because the parties have neither been properly aligned nor are they properly named. In the absence of at least a declaration or allegation as to payment value for the debt in exchange for ownership of the debt, there is no claimant before you that possesses a justiciable claim.

“There can be little doubt that a liability exists with respect to money received or paid; nor is there much doubt as to whether that liability might be or become secured through reformation of the instruments.

“But until then, the homeowner has no ability to assess the amount demanded, whether compensation was due from the total single transaction for the issuance, sale and trading of securities, and to whom the liability is actually owed and whether there are offset claims for disgorgement of money illegally obtained, breach of statutes, common law duties or anything else.

“So the answer to your question is that no, I didn’t sign a contract for the transaction that occurred. I signed a document with false utterances and I have no idea whether the one they have today is the original or a copy of a copy that has been mechanically reproduced so as to emulate an original.”

 

FREE REVIEW:

If you want to submit your registration form click on the following link and give us as much information as you can. CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us.

In the meanwhile you can order any of the following:
*
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
*
CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
*
FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. IN FACT, STATISTICS SHOW THAT MOST HOMEOWNERS FAIL TO PRESENT THEIR DEFENSE PROPERLY. EVEN THOSE THAT PRESENT THE DEFENSES PROPERLY LOSE, AT LEAST AT THE TRIAL COURT LEVEL, AT LEAST 1/3 OF THE TIME. IN ADDITION IT IS NOT A SHORT PROCESS IF YOU PREVAIL. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
*
Please visit www.lendinglies.com for more information.

Deutsche Bank National Trust Company Legally Exists as a Company, But Not as Trustee for Borrower Loans

Several readers have sent me information regarding DBNTC and pointed out that I had misstated the status of DBNTC in past articles. I think they were at least partially right. Thanks to all the readers who sent in comments and information.

DBNTC is a name change from Banker’s Trust which was a real bank, organized and existing under national charter. So DBNTC exists under a national charter. But DBNTC is not a bank in the sense that it makes loans or collects deposits from customers. It is a trust management company. So bottom line, DBNTC does exist as a legal entity.

The conflict arises when the DBNTC name is used in conjunction with a REMIC Trust. This might appear as

  • “DBNTC as Trustee for the XYZ Trust” or
  • “DBNTC as Trustee on behalf of the holders of certificate series ABC-2008A” or
  • “DBNTC as Trustee for certificate series ABC-2008A” or
  • “DBNTC” as Trustee for the certificate holders of XYZ Trust series ABC-2008A”

Despite the variation in names it all adds up to the same thing.

First, since DBNTC has never entered into a transaction in which it paid value in exchange for any debt, it cannot be the owner of the debt.

Second, since no trustor or settlor has entrusted any debt to DBNTC, it can’t be the trustee with any right, title or interest in the debt’s ownership or management.

Third, since the certificates do not convey any right, title or interest to any debt, the certificates are irrelevant but are stated to create the misleading impression that a foreclosure is brought on behalf of investors who will receive the money proceeds from the forced sale of the home. They don’t receive any money from those sales and they are not entitled to receive such proceeds.

Fourth, certificates are not legal persons and therefore stating that the action is brought by DBNTC for a certificate series says nothing more than DBNTC is not appearing in its own behalf but rather in a representative capacity — all without stating what capacity other than calling it “trustee.”

Fifth, DBNTC does not have any contractual or other authority to represent certificates or owners of certificates. It is stated in vague terms to create the misleading impression that the Pooling and Servicing Agreement has some provision enabling DBNTC to represent the owners of certificates as though they are beneficiaries of the trust. Certificate owners are not beneficiaries of any trust. They are creditors. And there is no agreement in which DBNTC represents the interests of the certificate holders.

Sixth, the naming of a beneficiary under a deed of trust or a Plaintiff in a foreclosure action including the DBNTC name is entirely misleading.

  • DBTC is a legal entity.
  • The trust — whether expressly named or implied — either does not exist or does not exist in relation to the subject debt.
    • Trusts are generally held to exist only if the elements are present — trust agreement, settlor (trustor), beneficiaries and res — a thing of value entrusted to the trustee to keep for beneficiaries.
    • In all cases the REMIC trust is virtually the same as MERS — it is naked nominee for any documents executed in favor of the trustee or trust for its principal, the investment bank that was the named underwriter (but actually the issuer of the certificates doing business under the name of a fake trust).
    • But without conveyance of the debt (i.e., in a transaction in which value is paid) the paper conveyance of an interest in a mortgage or deed of trust is a legal nullity in all US jurisdictions.
    • Thus the trust holds nothing and does not, in most jurisdictions, have any status as a legal entity.
  • The certificate holders exist but they are irrelevant.
  • The certificates actually don’t exist except in virtual form and are also irrelevant.
  • Since the trust does not own the debt, there is no trustee with any power or right to administer the loan.
  • Hence naming DBNTC as trustee is merely a ploy intended to mislead you and the courts into thinking that a trust exists, in which the debt is owned and certificate owners are beneficiaries. None of those things are true. It is a lie.

Hence if the foreclosure mills just named DBNTC without saying “trustee” or naming certificates, or a trust or certificate holders, they would be naming a legal entity, albeit one without any claim. BUT by naming those other things and implied entities they are naming an entity that does not exist legally or even equitably.

Even if an entity was found to technically exist, it has no claim because it does not own the debt, note or mortgage —despite paper conveyances fabricated to create the false assertion that the mortgage or beneficial interest had somehow been conveyed — despite the absence of any real transfer of the debt.

In previous articles I said things to the effect that DBNTC did not exist. That was shorthand for saying that it did not exist in relation to any debt of any homeowner where the loan was subject to claims of securitization. I apologize for the confusion. I hope this article clears it up.

TILA Rescission Is Law of the Land: It Might Also Be Dead

The recent denial of certiorari by SCOTUS of a clear case that was a virtual mirror of the case presented in 2015 in Countrywide v Jesinoski, shows that the courts are  going to deny rescission rights under 15 USC §1635.

This leaves borrowers naked in the wind. There is no longer any effective enforcement mechanism for the hard fought rights of borrowers to receive real disclosure of the true nature of their loans.

I won’t say that you should not use it in your pleadings because it still is law, and it is clear and unambiguous as a unanimous court held in Jesinowski. But as of now, the refusal of the court system to apply the law is complete, including SCOTUS.

The fact that it is wrong on so many levels is irrelevant. Every society must live in a system and ours allows for bad decisions. Bad decisions are still final. My suggestions to practitioners is don’t bang your head against this wall any more.

Perhaps the way around this is a modified adaptation of the AMGAR plan in which an offer is made to pay off the entire amount demanded — provided that the new lender receives disclosure of the creditor who paid value in exchange for ownership of the debt. My opinion though is that the offer must be real — i.e. based upon actual funding.

SIT — SAW — SAP: 2 Minute Primer on Securitization

Almost everyone thinks they have a basic understanding of the securitization of residential debt. They don’t. Here is a basic primer to organize your thinking on the subject. Remember this only applies to securitization of residential debt and not to other things like stock IPOs etc.

  • SIT: Securitization in Theory. Simple: Asset is owned by issuer. Issuer divides ownership into shares. Shares are sold to investors. Perfectly legal, moral and good economic sense as the foundation of capitalism which for all its flaws (and there are many) is the best economic system yet devised by human beings for commerce. As long as the shares are adequately described according to regulation there is no foul. But this is not what happened in residential mortgages.
  • SAW: Securitization as Written. This is the foundation of a criminal enterprise. The atom was smashed (i.e., the debt and ownership of the debt were separated) and the paperwork was entirely designed to cover that up. Every document had to contain false statements or false implications and every document had to be executed through layers of people and companies so that nobody could be blamed for what happened. Documentation bears no resemblance to what happened to the money in the real world. Reliance on the documentation allows the banks to control the narrative.
  • SAP: Securitization in Practice. Investment banks sold their own discretionary promise to pay money to investors in the form of a certificate (“mortgage bond”. Investors who bought the certificates received no right, title or interest to any debt, note or mortgage from borrowers. The promise was unsecured. So investors paid value and did not receive ownership of any debt — something that is impossible under modern law and for good reason. Though many layers of intermediaries, conduits and sham entities documents were fabricated for various purposes including foreclosure on behalf of a non- existent entity with no right, title or interest in the debt, note or mortgage.

Separating the debt from ownership of the debt is a legal nullity in all jurisdictions. Current documentation claiming ownership of residential debt is all false. The prevailing assumption that a foreclosure will result in proceeds paid to the investors is false.

As for the named “trustee” of a “REMIC Trust” the hidden trust agreement reveals that the trustee is a nominee for the investment bank, not the investors — and that the investors who bought certificates from the investment bank issued in the name of the named trust are neither beneficiaries under the trust nor are they parties to any agreement giving any rights to the named trustee to represent them.

As nominee, under the oft-hidden trust agreement the named trustee does not acquire any right, title or interest to any debt, note or mortgage. Hence there is no right of the Trustee to enforce any debt, note or mortgage. Delivery of the note to the trust never occurs — the named Trustee wants nothing to do with it. Documentation to the contrary is false.

Money proceeds of foreclosure sales is distributed to the investment banks and to the parties who participated in the foreclosure but none of them are carrying the debt as an asset and none of them would have any loss from nonpayment. In accounting terms this translates as revenue. Foreclosure is a remedy based solely on the need to give restitution to a creditor for an unpaid debt. In securitized loans this never happens. It can’t.

Investors do not receive the proceeds because they don’t own the debt. The investment bank paid value for the debt but didn’t receive ownership — nor does it carry the debt as an asset on its own books of account beyond 30 days after funding.

While the investment bank is repaid the principal several times over by reselling the debt or attributes of the loan it does not label incoming funds as repayment even though it treats the cash flow as payment thus removing the risk of loss on the loans from its books. The trust never owns any debt, note or mortgage and neither do the investors or the named trustee.

FREE REVIEW:

If you want to submit your registration form click on the following link and give us as much information as you can. CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us.

In the meanwhile you can order any of the following:
*
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
*
CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
*
FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. IN FACT, STATISTICS SHOW THAT MOST HOMEOWNERS FAIL TO PRESENT THEIR DEFENSE PROPERLY. EVEN THOSE THAT PRESENT THE DEFENSES PROPERLY LOSE, AT LEAST AT THE TRIAL COURT LEVEL, AT LEAST 1/3 OF THE TIME. IN ADDITION IT IS NOT A SHORT PROCESS IF YOU PREVAIL. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
*
Please visit www.lendinglies.com for more information.

Use of Depositions at Trial Might Shorten Process and Reduce Costs

While it is not certain, the Californian Decision in Raul Berroteran II v. Ford Motor Company, might be the harbinger that could change litigation forever. It basically stands for the proposition that if you had a chance to cross examine the witness and didn’t, you waived it and the deposition is admissible at trial.

Bill Paatalo brought this to my attention. He asks whether it is time  to dust off the depositions of rogue robo witnesses like Riley and DeMartini and I would add Reyes and others. My answer is necessarily vague as in “I don’t know.” But yes it is time to dust off those depositions and they might well be admissible in lieu of live testimony. This is an evolving area of the procedural law.

seehttps://www.natlawreview.com/article/deposition-testimony-takes-stand-california

The testimony at issue, which had been given for other cases involving the defendant, involved the same type of diesel engine in the same model vehicle as the one at issue before the court. The court held that the trial court should have admitted the former deposition testimony because the defendant had the same motive and opportunity to examine its witnesses in a deposition as it would have at trial. The court further stated that the test for admissibility is not whether the party opposing the testimony actually cross-examined the witness, but rather only whether the party “had a motive and opportunity for such cross-examination.” Berroteran, 2019 WL 5558830 at *22. The Second District determined that deposition testimony may be used at trial if the questioner had a “similar motive” during both proceedings. It determined that the defendant in Berroteran had a similar – if not identical – motive to defend itself against the allegations of misconduct and knowledge regarding functionality of the 6.0-liter diesel engine at the heart of all deposition testimonies and of the Berroteran trial. [e.s.]

We Need Your Help!!! ALL I NEED IS 5 MINUTES OF YOUR TIME

I need you to help me help you.

We were planning the launch of the new series of Garfield Continuum Seminars in June at the place where we began in 2008 — Santa Monica CA. But people in recent days have indicated an unwillingness to travel to a live event.

We were prepared anyway to go ahead with 1-2 hour webinars but we need actual feedback from lawyers, pro se homeowners, investigators, and loan examiners as to their availability or interest in attending live events or live webinar events or recorded webinar events.

So without cost or obligation of any kind, give me your best feedback on what we should do:

CLICK HERE TO GIVE US YOUR FEEDBACK. 

Tonight! Everything there is to know about foreclosure of securitized loans in 30 minutes. 6PM EST 3PM PST the Neil Garfield Show

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

Syllabus for Webinars Covered in Brief

  1. What Trust? An overview of securitization
  2. TILA Rescission
  3. Why Lawyers Should Get Involved
  4. You signed, didn’t you? Legal Presumptions
  5. Absence of evidence: Discovery strategies and tactics
  6. Objection! Lack of  foundation! Rules of evidence and objections
  7. Illegal (wrongful) Auction Sale: Proactive litigation
  8. You want me to leave? Defending Eviction and Unlawful Detainer
  9. Bankruptcy and foreclosure
  10. How do I prove? Understanding legal procedure
  11. That’s wrong! How to figure out the truth. Investigation, affidavits and reports.
  12. But your honor! What to do with the truth
  13. $$$$$!: BUSINESS PLANS: For Paralegals and Attorneys: How to Make Money Defending Foreclosures AND Going After the Banks
  14. Disgorgement remedies
  15. Injunctive remedies -Prohibitive and Mandatory
  16. Q&A
  17. Panel discussion
  18. Watering Hole discussion, meet and greet, network
  19. Appellate practice
  20. Mediation, Modification and Settlement

Read Paatalo’s Post If you Are Having Trouble Believing What I am Telling You

Everyone has trouble believing what happened under the “securitization” scheme concocted on Wall Street. Bottom Line: It was “extralegal” which is why it is “counterintuitive.” It is not legally possible to own a debt without paying value for it. It IS that simple. When confronted with a direct challenge Bill is right, they flee like cockroaches when the lights come on.

Read what Bill wrote and you’ll see what I mean. There just isn’t anyone who has paid value in exchange for ownership of any debt.

see https://bpinvestigativeagency.com/foreclosure-attorney-resorts-to-google-to-find-his-non-existent-client/

 

Foreclosure Scams Work Both Ways

It’s true that most foreclosures are scams designed to obtain revenue instead of paying off a debt. But it is also true that there are many who pray upon the desperation of distressed homeowners who frankly are so emotionally overwrought that they are not thinking straight.

So yes, anyone who guarantees you a result is neither an attorney nor anyone who can or will help you. They are interested in your money and you would be best off not hiring them. they are providing services that seek to justify the money taken from you rather than actually seeking to accomplish something of value to you.

The thing you need to know is that Wall Street banks can influence almost anything. So they have successfully targeted many people providing assistance in foreclosures — particularly if they have been successful in court obtaining judgments or forcing the banks into settlements.

By focusing on the scams against homeowners by people pretending to help, this distraction keeps the FTC and Little FTC state agencies away from the biggest scam of all — false, fraudulent foreclosures that do not pay anyone who owns the debt.

As for lawyers and forensic investigators whose work I have endorsed and highlighted, don’t throw out the baby with the bathwater. Some of them might have things in the public record that don’t look good. That does not diminish the value of their analysis and competence to provide you with assistance and advocacy you require.

The key things to be careful about in what the FTC calls “Foreclosure Rescue Schemes” are the following, taken from a bulletin from the Federal trade Commission.

The scam artists use simple – but potentially deceptive – messages, like:

“Stop foreclosure now!”

“Get a loan modification!”

“Over 90% of our customers get results.”

“We have special relationships with banks that can speed up the approval process.”

“100% Money Back Guarantee.”

“Keep Your Home. We know your home is scheduled to be sold. No Problem!”

see https://www.consumer.ftc.gov/articles/0100-mortgage-relief-scams

The FTC bulletin unfortunately blankets virtually everyone providing assistance to homeowners and should not be taken as the ultimate truth. So while true in certain respects, the bulletin chills access to those who could provide real help.

That is exactly what the Wall Street banks want and need, because they have no right to get the proceeds of foreclosures when they are not even the party claiming foreclosure and they have no right, title or interest to the debt, note or mortgage.

Lawyers are mostly exempt although there were attempts to include them under the MARS rule. But they too might be soliciting for fees without actually pursuing a goal of something satisfactory to the homeowner.

So the moral of the story is take a deep breath and calm down. Research the person with whom you are thinking of hiring.

 

How to Get Help From Neil Garfield

Here is the way to get my input/involvement. [Although it is helpful to follow this procedure lawyers need not submit a registration form for a CONSULT.]

*
First pick one property and then submit a registration statement. If you want to talk about more than one property, which is probably not necessary in our initial consult, then submit a separate registration form for each property.
*
If you want to submit your registration form click on the following link and give us as much information as you can. CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us.
*
Second, I will reply to the information you provide on your registration form via email. Usually within 24-48 hours. In my email to you I will suggest the next steps as to the property status, strategies and tactics. Note that each property usually involves a separate fact pattern as to timing and status of legal proceedings as well as players and timing of actions in origination and servicing.
*
After you have received my response and after your lawyer reads my response, then order a consult — 30 minutes for each property.
*
I receive many offers of engagement every day. In order to weed out the people who are looking for free individual service I need to adhere to certain practices that protect my time and the privacy of others. Every day I spend an hour or two of my time doing research, investigation and writing on topics relating to consumer finance. Everyday I spend about an hour answering questions from the blog and emails from desperate homeowners. GTC Honors, Inc. underwrites most of the cost of all that with some help from donations.
*
Spending that much time every day doing the legal research, factual investigation, analysis and writing enables me to understand the current issues, frame strategies and tactics to be used by homeowners and their attorneys, and do it in far less time than an attorney who has no experience with debts subject to claims of securitization.
*
In order to stay afloat I must charge for our services to individual clients.
*
Regards,
Neil F Garfield, Esq. M.B.A., J.D.
GTC Honors, Inc.

954-451-1230 (This number goes to both the system and my cell, if available).

The Number of resales of the Same Residential Loan is Infinite: Will the Real Holder in Due Course Please Stand Up?

Distressed mortgage securitizations are special purpose vehicles that issue securities primarily to institutional investors; invest the proceeds mainly in distressed mortgage loans; and apply the interest, principal, and sale proceeds they receive to pay interest and principal on the securities that they issue. Distressed mortgage securitizations allow hedge funds and other institutional investors to make a leveraged, tax-efficient investment in a pool of distressed mortgage loans, and allow banks, real estate investment trusts, and other mortgage loan originators to finance or sell their distressed mortgage loan portfolios, freeing up capital that they can then use to make or acquire additional mortgage loans.

Under the distressed mortgage REMIC structure, a REMIC uses the proceeds of its issuance of regular interests to acquire a pool of distressed mortgage loans. Hedge funds and institutional investors that want a leveraged return on the distressed mortgage loans acquire the more junior regular interests. Investors seeking a more typically debtlike return acquire the more senior regular interests. [e.s.]

* are distressed mortgage loans qualified mortgage loans, even after they are modified? If not, the REMIC would fail to be a REMIC.11 In this regard, although the REMIC rules generally allow loans to be tested for qualified mortgage loan status retroactively to their origination date (before they became distressed), and accommodate workouts and sales of distressed loans, Congress does not appear to have contemplated the use of REMICs to acquire and work out pools composed entirely of distressed mortgage loans.

Second, do a distressed mortgage REMIC’s regular interests entitle holders to principal amounts that are unconditionally payable, even when its assets are unlikely to pay in full? If not, the REMIC would fail to be a REMIC.12 Read literally, the REMIC rules allow expected defaults on underlying mortgage loans to affect the amount and timing of principal payments on REMIC regular interests.

seehttps://www.cadwalader.com/uploads/books/ea64dbe776203131f96877f5a62a7a1c.pdf

NOTE: The assumption presented is not entirely true. Investments are not equal to the purchase of distressed loans. This is another example of hidden yield spread premiums. Investors bargain for a defined rate of return and then investment banks seek loans in which the stated rates are much higher, thus producing a windfall of money that never needs to be used for lending or acquisition.

Example:

  • Investor buys certificate for $1,000.
  • The investors get a discretionary promise from the investment bank to pay them a return of 6%.
  • 6%=$60 per year.
  • Investment bank goes out to buy distressed loans whose interest rate is an average of 7%, but because they are distressed, they get a discount of 30%+ (because of decline in value of collateral).
  • How much does the investment bank need to buy in order to satisfy the promise made to investors?
  • Remember they are seeking to justify the promise of $60 per year.
  • The answer is they only need to buy $816 in loans to cover the $1,000 investment by investors.
  • This produces a yield spread premium of $186 or $18.6%.
  • But then when we factor in the falsely labeled servicer advances that are paid from investors funds the Master Servicer lays claim to the balance recovered as revenue to the investment bank and all others enlisted to support the foreclosures.
    • The distressed property is subject to a foreclosure proceeding.
    • The distressed value of the property is now 50% of the original loan amount.
    • The investment bank takes all the money
    • But the investment bank keep making payments to investors not because they must but because they want to pay investors in order to create the false impression that this is a legitimate marketplace and that that the investment is safe so that investors will buy more certificates.

Remember the Interlocutory Appeal

Interlocutory appeals are appeals during the litigation. They are successful if the points in dispute are clearly presented and the case is made that the ruling is likely to shorten the litigation time or prevent unfair burdens from falling on the movant. They should be used sparingly, at most. But in my opinion they should be aggressively pursued when a judge refuses to compel answers to discovery that go to the heart of the case.

Too often judges deny such discovery because they apply legal presumptions as though they were at trial. They “forget” that discovery is not just an investigative tool but part of the process of proof. Such rulings strip the borrower of all defenses thus prejudging the case based upon a discovery request instead of a trial.

The court has entered an order that effectively bars the defendant from proving its defense and rebutting the claim made in the complaint. The court already ruled that defendant was entitled to receive responses. When the claimant refused to comply with that order, Defendant moved to compel. The court denied the motion leaving the defendant with no practical way to disprove the assertions of the plaintiff. 
 
Defendant has reports and opinions from experts in the securitization of debt and financial investigators stating that the named plaintiff as claimant herein, was (a) never properly formed as a legal entity and (b) even if properly formed never complied with Article 9 §203 if the Uniform Commercial Code (UCC) as adopted in all U.S. jurisdictions. A condition precedent to initiating foreclosure proceedings is that value was paid for the debt. It is universally accepted that an assignment of mortgage without an assignment of the debt is a legal nullity.
 
The consensus of U.S. Courts has been that negotiation of the promissory note is tantamount to transferring title to the debt. Further rules concerning enforcement of the note under Article 3 of the UCC allow for enforcement of the note without ownership of the debt or obligation. 
 
But enforcement of the security instrument ( mortgage) is governed by Article 9 which requires as a condition precedent to enforcement, that the claimant have paid value for the underlying debt.
This is also a jurisdictional requirement because foreclosure without owning the underlying debt would result in forced sale of property resulting in payment of proceeds to the claimant as revenue instead of restitution for an unpaid debt.
In other words such proceeds would not result in redress for financial injury. In addition lack of ownership of the debt further raises jurisdictional issues as  to subject matter jurisdiction. And the defense narrative regarding the legal existence of the claimant attacks in personam jurisdiction. 
 
If the current action is mislabelled as a foreclosure and it is indeed a ruse to obtain revenue at the expense of the borrower and the legal party who had paid value in exchange for ownership of the debt, then the action must be dismissed both for jurisdictional reasons and as a frivolous misuse of court process. And that would end the matter.
The denial of the motion to compel forces the defendant to proceed through expensive litigation, taking up precious court resources, and to expensive trial without benefit of reasonable, necessary and permissible discovery. 
 
At present the court is proceeding on the assumption that the action is a foreclosure, which is a civil action for restitution of an unpaid debt. The defense narrative is simply that  the current action is labelled as a foreclosure but is in actuality a ruse to obtain revenue, since neither the claimant nor anyone else will receive the proceeds of a successful foreclosure as payment for an underlying obligation owed by the borrower to that legal person. 
 
The entire foreclosure case proffered by opposing counsel, at this point, rests upon legal presumptions without corroborative evidence. 
 
The defense narrative is that 
 
(a) the claimant is not entitled to the use of such presumptions and 
 
(b) the defense must be allowed to rebut the presumption by simply asking questions and demanding production of documents that relate to the presumptions, to wit: that the claimant had entered into a financial transaction in which it had acquired the borrower’s debt. 
 
The defense narrative is that the claimant never entered into a transaction in which it paid value for the debt in exchange for ownership of  the debt. Further the defense narrative challenges the current action as a foreclosure and instead asserts that the action is not based upon restitution for an unpaid debt nor will it result to payment to anyone who has paid value for the debt in exchange for ownership of the subject debt.  
 

Accordingly, Defendant demands that the court enter the order commanding the opposing counsel to respond to discovery and that the appellate court reverse the decision of the trial court with an opinion that clearly states the right of foreclosure defendants to challenge ownership, authority and jurisdictional elements of legal actions labelled as foreclosures. 

FREE REVIEW:

If you want to submit your registration form click on the following link and give us as much information as you can. CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us.

In the meanwhile you can order any of the following:
*
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
*
CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
*
FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. IN FACT, STATISTICS SHOW THAT MOST HOMEOWNERS FAIL TO PRESENT THEIR DEFENSE PROPERLY. EVEN THOSE THAT PRESENT THE DEFENSES PROPERLY LOSE, AT LEAST AT THE TRIAL COURT LEVEL, AT LEAST 1/3 OF THE TIME. IN ADDITION IT IS NOT A SHORT PROCESS IF YOU PREVAIL. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
*
Please visit www.lendinglies.com for more information.

Wells Fargo to Pay $3 BILLION for Faking Accounts

Now it’s time to drill the investigation further — faking loan accounts in which the debtor owes no money to WFB either directly as owner or servicer or indirectly through other conduits or companies.

THIS JUST ONE EXAMPLE AMONG HUNDREDS WHERE THE MEGABANKS HAVE USED THEIR SHEER SIZE TO COMMIT ILLEGAL ACTS THAT WOULD PUT THE AVERAGE JOE IN JAIL. Here is Wells Fargo screwing both their own investors and their own customers over many years involving millions of accounts. The intended result was to artificially inflate the value of their stock trading on the stock market.

Just like inflating appraisals to get consumers to sign on the bottom line because the bank was no longer at risk and had everything to gain in trading and issuing derivatives based on the mortgages of unsuspecting consumers while selling fraudulent securities to unsuspecting investors.

If you go back to my articles starting in 2006, I said that a true investigation would reveal that both investors and borrowers were screwed in the same way. In both cases neither borrowers nor investors got what they bargained for. In both cases the borrowers and investors lost money. In both cases the bank made money on the way up and on the way down because they knew the appraisals were false and the terms could not be performed by borrowers whose income was less than the reset payments after the teaser period.

Such an investigation will yield very high results. And it will throw a light on Chase claiming WAMU loans, OneWest Claiming IndyMac loans etc. These all involve the fake creation of loan accounts in which the name of a Bank is used to hide the fact that there is no lender and no financial institution involved. It’s all about getting revenue from what is falsely presented as foreclosures. 

https://www.nytimes.com/2020/02/21/business/wells-fargo-settlement.html

From 2002 to 2016, employees used fraud to meet impossible sales goals. They opened millions of accounts in customers’ names without their knowledge, signed unwitting account holders up for credit cards and bill payment programs, created fake personal identification numbers, forged signatures and even secretly transferred customers’ money.

“This case illustrates a complete failure of leadership at multiple levels within the bank,” Nick Hanna, U.S. attorney for the Central District of California, said in a statement. “Wells Fargo traded its hard-earned reputation for short-term profits, and harmed untold numbers of customers along the way.”

As part of its agreement with the S.E.C., the bank will set up a $500 million fund to compensate investors who suffered when Wells Fargo failed to inform them that its community banking business was not as strong as the fake accounts made it seem. The money is included in the $3 billion settlement total.

 

Special note to stock watchers: If this ever catches up with the major banks and many smaller ventures like OneWest the liabilities could wipe them out of existence.

 

 

%d bloggers like this: