PONZI Operator Sentenced to 3 Life terms: What about Wall Street?

The bottom line is if someone offers you a return higher than the marketplace offers, there is no way for them to pay you except by selling more investments to new victims. You will almost definitely lose your money.

Mr. Gallagher promised a 5 to 8 percent return on his clients’ investments, according to court records. A vast majority of his clients were people in their 60s, 70s, 80s and 90s, and middle-class people who were not looking for enormous returns, but a stable retirement fund, according to court records.

see https://www.nytimes.com/2021/11/02/us/william-neil-doc-gallagher-ponzi-scheme-sentenced.html

I note this particular PONZI scheme because of its premise — slightly higher returns than available in the marketplace. Usually, PONZI operators draw victims by offering impossible returns. But like Wall Street, Gallagher set himself up to be a trusted source of financial information and he promoted himself as a spiritual adviser. He relied on the Christian faith and the businesses and networks associated with promoting schemes to older people observing the Christian faith.

Here is the similarity with the Wall Street securitizations scheme.

Like Gallagher, there was no financial product that matched the description of the “investment plan.” There was no securitization occurred of any promise, debt, or obligation issued by homeowners. The “plan” did not exist.

Gallagher marketed to seniors who trusted him on faith and their own carefully cultivated belief that Gallagher was a trusted source of information who know what he was doing. The Wall Street banks depended upon targeted advertising to those who lacked basic knowledge of finance, lending, and mortgage practices. Like Gallagher’s victims, many of these victims operated on faith or trust and the belief that was supported by advertising and targeted campaigns, including personal salespeople who were harvested from the ranks of convicted felons.

Like all Ponzi schemes, the “success” of Gallagher was pure fiction. It depended upon new investments to provide capital to pay previous investors. The success of the Wall Street securitization PONZI scheme depends on the continued sale of certificates to investors seeking higher than normal returns.

Like Gallagher, by advertising the slightly higher return on investment instead of bold returns like Madoff, Wall Street PONZI securitization schemes stayed below the radar. It wasn’t obvious that the promised returns were impossible. Madoff’s investor victims could have been alerted by the promised 16 % return.

The difference between the two is that Gallagher was detected, probably because he saturated the marketplace with his scheme. The Wall Street scheme survives, so far. But you can be sure that if buying of those certificates slows down or stops, the crash will come. I don’t know if the government will again prop up an illegal scheme, but I hope not.

How Wall Street is Committing the Perfect Crime

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Back in 2006 on TV, I said something like this: “Given the size and scope of this illegal enterprise, there probably are not enough available assets in the world to purchase and hide from public scrutiny. The banks will inevitably expand into fields in which they have no interest, just like lending. The only way they can hide their illicit gains is by laundering them through the purchase, sale, and trading of assets, some of which will be just as fictitious as the alleged loans they are allegedly creating.”

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At that point, I had just learned of the investment by Goldman Sachs in precious metals distribution centers. It’s like the “free trade zones” where multiple transactions, options, and other hedge products are traded every day without any reported record of the transaction. No income reported, no tax reported as owed, and the ability of the government to pay for basic services is diminished every day by the declining revenue from these companies. The burden of paying for these services is hidden through “privatization” in which the focus shifts from the service to making money by pretending to provide the service.

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The acts passed in 1998-1999 essentially privatized enforcement of consumer rights that were clearly enunciated in the statute. It shifted the public law enforcement service to private citizens injured by illegal behavior — a burden which few victims could afford to defend with their time, money, and energy. It was close to the perfect crime — so far.
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As long as people vote for slogan candidates that accept money and even rely upon money from Wall Street (and the rest of the status quo alliance) nothing will change. There is plenty of public money that could be spent on basic and more advanced services sponsored or conducted by the government — but the rule is that the richer you are the more easily you can afford professionals who will legally assist you in avoiding tax liability and probably illegally assist you in evading such liabilities.
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Hidden beneath the rubble is the incontestable fact that the ordinary citizen pays far more in taxes than any of his or her more financially successful counterparts — as a percentage of income (including “private taxes”). Let me remind you that the tax system was established and approved as a progressive tax system in which increases taxes on those ablest to afford to pay (because of the opportunities that society granted to them through licenses and other perks).
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Want to allege fraud? Not so fast

Both homeowners and lawyers like to throw around the term “fraud upon the court.” But it actually ends up diminishing the credibility of both. There are several reasons why you should not allege fraud unless you have indisputable sold proof that the documents and/or oral arguments were filled with statements that were known to be false when they were made.

The reality is that homeowners do best when they attack the sufficency of the allegations, exhibits and evidence. 

Due to recovery from some medical issues, I am taking the night off from the radio show. I submit the following in its place:

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Both homeowners and lawyers like to throw around the term “fraud upon the court.” But it actually ends up diminishing the credibility of both. There are several reasons why you should not allege fraud unless you have indisputable sold proof that the documents and/or oral arguments were filled with statements that were known to be false when they were made.

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First, it diminishes your credibility if and when you fail. So other grounds that should have been front and center get short shrift. Second, the only people who actually know the truth of the matter asserted are working for an investment bank that does not show up anywhere in the paperwork and which never appears in court. Everyone else claims plausible deniability even though you know that they know that they are committing illegal acts.

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And third, you lift and shift the burden of proof to the homeowner on a claim that is essentially being made by the other side  — ie., that you owe money to them. The burden of proof shifts because now it’s you making allegations and it increases or rises because on a fraud claim you must now prove your allegations by “clear and convincing evidence” not merely a preponderance. That is something close to beyond a reasonable doubt. You will never get there unless you get testimony or evidence from the investment bank bookrunner, which I doubt if you will ever see.

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If you are going to allege fraud you need to be very specific. Charges that the documents or oral argument in the court were false do not suffice. You need to reference specific untrue statements on specific dates with reference to whether it was in writing or oral. And you need to state your grounds for charging fraud — and why these grounds were not raised before.

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And you need to state that the parties knew that the statements made were false and that a specific party made them anyway for their own personal benefit and not to pursue a legal objective. Generally speaking in foreclosure cases this is impossible because the only party who knows with certainty that the statements were false is the bookrunner investment bank and they have not been in direct contact with you or with the court.
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All other parties rely upon “plausible deniability” — i.e., that they were merely acting on information from a third party who was performing computer work or otherwise providing instructions. In most cases, this involves multiple parties who are channeling documents, data, and instructions from other parties. While there is plenty of room to allege that they should have known or must have known about the falsity of the documents, pleadings, and oral representations in court, there is no indication in court proceedings that such allegations have ever been sustained.
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Both before and after litigation or judgment — and without having reviewed your case yet — there are some possibilities that you might want to consider with local counsel.
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  • Appeal: If you still have time left on the calendar under the rules, you can file a notice of appeal and then an appellate brief. In most cases, such appeals are unsuccessful unless the  Appellant narrows the issue down to a very specific violation of due process or other specific error by the trial court — and which is not supported by something in the record that allows for the trial judge’s action. The error must be something that if corrected could result in a different outcome for the case. The problem with this is that most clerks and judges on appellate courts believe that the appropriate outcome is foreclosure and sale. This occurs because the complexity of securitization hides detection of the innate PONZI scheme.
  • Petition for bankruptcy relief probably under Chapter 13 — automatically stops collection activity until the automatic stay is lifted. You will have the opportunity to challenge the motion to lift the stay in bankruptcy court and conduct limited discovery. There are cases in which the foreclosure mill backs off when confronted with a federal bankruptcy court ordering them to comply with discovery demands. Just remember that as infuriating as it is to hear blatant lies from the lawyer from the foreclosure mill, everything he or she says is currently regarded as protected under the doctrine of litigation immunity.
  • Independent action in state or Federal court to enjoin the parties (not the court) from further activities to administer, collect or enforce any alleged obligation from you on the basis that none of them are the owners of a loan account receivable due from you and none of them represent such a creditor. The benefit here is that you can name the investment bank and perhaps other parties. A well-drafted lawsuit will ordinarily survive a motion to dismiss.
  • Administrative process including at least one Qualified Written Request and at least one Debt Validation Letter under RESPA and FDCPA is one thing that the homeowner can do to track the lies. Failure to answer simple questions about the current status and location of the loan account receivable, ownership and rights to administer, enforce or collect on the alleged underlying obligation owed to the purported virtual creditor creates grounds for an independent state or Federal action for statutory damages, mandatory and prohibitory injunctions. 
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Nobody paid me to write this. I am self-funded, supported only by donations. My mission is to stop foreclosures and other collection efforts against homeowners and consumers without proof of loss. If you want to support this effort please click on this link and donate as much as you feel you can afford.
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Neil F Garfield, MBA, JD, 74, 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.
  • Yes you DO need a lawyer.
  • If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.
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Damned if you do, damned if you don’t. How the “failure” of rating agencies on Wall Street directly impacted homeowners.

I think the article presents some very valuable information, insight and analysis. But it fails to take into account the central weakness.

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see Credit rating failure 47.full

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The certificates that are referred to as “mortgage-backed securities” are neither mortgage-backed nor securities. There have been at least dozens of cases in which tax treatment or liability of the trustee for a REMIC trust has been decided and hundreds more where there were settlements without litigation. In every case, it was found that the owners of the certificates had a creditor-debtor relationship with the book runner investment bank that was unsecured. In every case, the court found or the case was settled on the premise that the owners of the certificates had no claim at all against the payments, obligations, notes, or mortgages issued by any homeowner.
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The failure of the government to regulate the issuance of those certificates is traced back to the deregulation of those instruments as being “private contracts,” not to be regulated as securities.
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So the whole notion that the rating agencies failed to properly assess the risk elements contained within the purchase of those certificates is correct but manifestly incomplete. Those certificates were promises to pay issued by Book runners doing business under the name of a nonexistent trust. The promise to pay, in most instances, contained no maturity date as to the principal. The promise to pay, in all instances, was subject to the sole discretion of the book runner.
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The failure of the rating agencies can be traced to corruption. And the specific failure of the rating agencies was the failure to identify the immediate yield spread premium taken by the book runner together with its securitization partners. That premium had a range of 20 to 50% of the amount invested by purchasers of the certificate. A casual review of the “lending” transactions conducted with homeowners reveals that there was no possible way that certificate owners could’ve been paid as stated in the promotional materials and indenture. The payment was ultimately based upon the continued sale of certificates — with more yield spread premiums. So the “failure” of the rating agencies was the failure to call this scheme by its proper name: a PONZI scheme.
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The intermediate securities brokerage houses were borrowing money from their securitization mega counterparts against the sale of the certificates. The certificates promised, on average, around 5% return to investors. The transactions that were actually funded had a stated average of 7 to 9% return (with very little likelihood that it would ever be paid). So the amount that was claimed as a loan was far less than what had been received from investors. Part of this money went into a reserve account from which the book runner, as master service sir, could make “servicer advances.” Do the math. In many cases, if you allocate the money to a specific “loan” transaction the amount of revenue generated was equal to or greater than the amount of “principal” on the “loan.” On average it was less than that — but far more than what was required to be disclosed to the consumer homeowner.
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The only way that yield spread premium could exist is by charging a higher interest rate on the “loan.” The only way the higher interest rate could be charged was by structuring transactions with homeowners that had maximum risk instead of minimum risk. And the only way the book runner could keep paying the certificate holders was if more certificates were sold since actual payments from actual homeowners would never materialize in the amount needed to meet the whimsical promise made by the bookrunner. Knowing that, the bookrunner and securitization counterparts were able to create insurance contracts that insured them instead of investors but still promote the certificates as “insured.”
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To get independent confirmation of what I am saying here, which is above most readers’ understanding, is by tracking the evolution of the definitions used in the TARP program. First, it was to offset losses suffered by the banks from homeowner defaults. Then it was discovered that the banks did not own any loans to homeowners and therefore could not suffer any loss and needed no bailout for such losses. But they were still left with the threat of financial Armageddon that was being pushed by the megabanks — bail us out or else we will freeze all credit markets.
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So then TARP was changed to bail out the banks for losses on the RMBS certificates. That didn’t work either because the banks were selling those certificates, not buying them. SO there was no loss there either. But the threat remained that as Geithner said “The plane was burning, We had to land it.” The megabanks were insistent on the bailout even though none of them had experienced any losses.
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The true nature of the bailout was revealed when the bailout of AIG occurred in the open. It turns out Goldman Sachs had been bailed out of losing a windfall profit it had “earned” by having insurance paid to itself instead of investors or homeowners. The taxpayers were coerced into funding profits. No losses were bailed out because no losses were incurred by the recipients of the bailout.
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So that is why I say the “failure” of the rating agencies is a generous way of portraying what they did. This mess might never have occurred if they were not complicit in the scheme. And that is why I say that the legal doctrine of res ipsa loquitur applies —- in the absence of negligence or other tortious behavior, the thing would not have occurred.
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It is peculiarly irksome for homeowners and their lawyers that there have been so many settlements predicated on the fact that the transactions with homeowners were never conducted, underwritten or executed properly. Those settlements have strictly been with the government or investors. What disturbs homeowners is that those defects are all violations of lending laws for which there are self-executing remedies including rescission. But while the banks are getting paid “bailout” money, the homeowners are being barred by the courts from remedies that were created in order to establish a self-regulation process rather than a gigantic new federal agency that would review, insure and approve all consumer lending transactions.
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The second irksome issue for homeowners is that they know that the parties seeking enforcement against them are doing it for fun and profit — not to repay an existing loan account receivable. Any real analysis by the rating agencies would have revealed the fact that the enforcement of the homeowner’s scheduled payments was completely dependent upon the satisfaction of the condition precedent stated in Article 9 §203 of the UCC — payment for the underlying obligation. But what the Wall Street banks had created was an oxymoron. Anyone who had paid value did not own the obligation, and anyone who received “title” to the underlying obligation did not pay value. It was precisely this structure that enabled the virtual sale of the debt many times over rather than being limited to a single actual sale.
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The problem then is that even if the certificates had been properly sold and properly managed, the homeowner transactions were mere points of reference rather than any enforceable contract that served as “mortgage backing” for the certificates. None of this could have occurred without the rating agencies and the homeowners who were unknowingly drafted into a securities scheme without receiving notice nor any incentive payment — despite statutory requirements to the contrary. Hence the sale of financial products to homeowners produced an inchoate liability for the Wall Street banks. This liability, based upon the stated position of owners of the certificates could vicariously be ascribed to the certificate owners who found themselves in the old position of “damned if you do, damned if you don’t.”
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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, 74, 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 TO ORDER 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 PRELIMINARY DOCUMENT REVIEW (PDR) (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
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.
  • 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.

Those letters from the lawyer for the “servicer”: PHH

It is true that someone will execute a release of the lien. What is not true is that they have any authority to do so — nor is it true that PHH has any right to receive any money, whether it is a monthly payment or a payoff.

In fact it is not true that PHH will receive any money. They won’t and they don’t. All payments are  directed through lockbox contracts and FINTECH companies into accounts that may bear the name of a company claiming to be a serrvicer but which are owned by someone else.

This is why I keep successfully annoying opposing counsel about the payment history they wish to introduce as a business record exception to the rule against the use of hearsay evidence.

Since none of the data was entered by anyone employed by the company that is claimed to be the servicer, the payment history is neither a business record that is an exception to the rule against hearsay, nor an acceptable substitute for what has always been required: the accounting ledger showing the history (cradle to grave) of the loan account receivable. In fact, the payment history is not even a partially acceptable substitute for that ledger because it does not reflect payments to creditors.

PHH, Ocwen and Reverse Mortgage Solutions (among others) are all part of the same organization. In a recent dialogue between my client and the lawyer for PHH, he stated that payment to PHH will cause the lien to be released. This got me started thinking about the way he worded that. Normally the lawyer would write something like “Payment to PHH, as agent for XYZ Creditor, will satisfy the debt, note and mortgage. Upon receipt of such payment,m the lien will be released.”

Note that this was a representation from the lawyer not PHH and not any creditor. And the lawyer is protected by a form of immunity as long as he is not intentionally misstating the facts knowing that they’re false. If PHH said that, it could be the basis for a fraud action.  It is true that someone will execute a release of the lien. What is not true is that they have any authority to do so nor is it true that PHH has any right to receive any money, whether it is a monthly payment or a payoff.

It is true that someone will execute a release of the lien. What is not true is that they have any authority to do so nor is it true that PHH has any right to receive any money, whether it is a monthly payment or a payoff.

So this is what I said in a comment to the receipt of an email displaying the comments of the lawyer claiming to represent “somebody” which we presume is a claim to represent PHH which in turn is a claim to represent some company claiming to be a creditor merely because they have some paperwork — and not because they ever entered into any purchase and sale transaction in which they bought the underlying obligation, the legal debt, note or mortgage:

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Of course, what is interesting is that the lawyer is saying that payment to PHH will cause the lien to be released. But it doesn’t say who will release it. It’s leaving the rest to your imagination. Any lien release under this scenario would be executed by a person working for a company that has no legal authority to sign it.

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The way it is set up, the person is authorized by the company he works for, but the company lacks the authority to authorize him to sign it. The company, in turn, claims authority by virtue of some contract or document in which the counterparty grants the company the authority. But the grantor also lacks authority.

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The idea here is to get you to take your eye off the ball. The ball is always the underlying obligation. It is the legal owner of the obligation (i.e., the one who purchased it for value) who has the sole authority to grant powers to anyone else over the administration, collection, and enforcement of the underlying obligation.
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It is only when you take your eye off the ball that these companies get away with claiming the status of “holder” of the note and owner of the mortgage. The holder of the note is defined as a party who has physical possession of the note (or the right to physical possession of the note) together with the authority to enforce it.
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These players have been successfully leveraging the idea that physical possession of the promissory note, or the right to physical possession of the promissory note is all that they need in order to establish the legal presumption that they have the authority to enforce it. That has never been true. But in the absence of a persistent and aggressive challenge from the alleged debtor, these parties have been able to steamroll over all weak objections.
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Further, leveraging one presumption into another, they have been successful in raising the additional presumption that transfer of the note to a “holder” is the legal equivalent of transferring legal title to the underlying obligation, thus satisfying the requirement for enforcement that is contained in Article 9–203 of the Uniform Commercial Code. None of that is true; but all of it seems to be true.
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The bottom line is that they know there is no loan account receivable and therefore no legal owner of the underlying obligation. They have done that intentionally for the benefit of the investment banks that set up this scheme. But it has not been difficult for Wall Street to convince the rest of the world that all of these transactions are, in substance, just what they appear to be. Getting the courts, law enforcement, regulators, and even homeowners and their lawyers to look beyond the appearance has been the principal impediment to defeating the scheme.
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.

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Neil F Garfield, MBA, JD, 74, 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. In  the meanwhile you can order any of the following:
CLICK HERE TO ORDER 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 TERA – not necessary if you order PDR PREMIUM.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
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CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR) (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
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.
  • 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.

About that letter you receive from the company claimed to be your servicer: PennyMac

People keep getting letters and they tend to treat the information as real simply because it is in writing. That is the nub of the Wall Street scheme — send out written communication and documents without regard to the truth and people will assume that the document or letter would not have been sent if at least someone didn’t think it was true.

SO I was recently sent a copy of a communication that was on PennyMac letterhead. People forget that you can create the letterhead of any company or person and pout it at the top of your document or letter. Any reader assumes that it was sent by that person or company even if it was not sent by or on behalf of that company. And servicers like PennyMac do not send out anything that could be legally binding because they’re just figureheads.

Practically all inconsistent and nonsensical notices and statements received under the “letterhead” of some company that has been claimed by someone to be a servicer can be easily understood — if you accept the premise that multiple FINTECH companies were involved in processing every function that one would normally associate with that of a company receiving and disbursing money.

So here is the comment I made upon receipt of that “letter.” (Calling it a letter may be misleading since it is the automatic production of a document that never included any human intervention, thought, decision, or authority.)

Here are the facts, to a virtual certainty:
  1. This was not sent by PennyMac. It was created and mailed by a FINTECH company and the FINTECH company is not in contract with the alleged company that is claimed (by someone) to be a servicer. The FINTECH company is in contract with intermediaries for an investment bank.
  2. Since it is unsigned there is no presumption that any human ever authorized the letter.  The failure to at least robosign it or stamp it with a signature indicates or even raises the presumption that whoever sent it meant to preserve plausible deniability.
  3. The response to this letter should be a demand (QWR or DVL) for a signed authorization from PennyMAc saying that the letter was authorized by PennyMac on behalf of whoever they are saying is the creditor. Treating the letter as real makes it real and makes it difficult to challenge authority later.
  4. Any demand mailed to their address should include an inquiry as to the meaning of the small font code above the address.
  5. If the letterhead contains a deadline, you should fire back a question about whether this is pursuant to an instruction from an identified creditor or, if there is a self imposed deadline by someone else. If it is PennyMac, please acknowledge that the deadline is imposed by PennyMac. If it is imposed by some third party, then please identify that party and their authority to impose any terms and conditions.
  6. When the letter refers to forbearance or a prior forbearance agreement, an appropriate response would be a request for acknowledgment from an identified creditor as to the existence, terms and conditions of the forbearance agreement.
    1. Failure to challenge the authority of the company claiming to be a “servicer” could later be construed as tacit consent to the authority of that company and the presumption that since they are the servicer and they do have the authority, they must be representing a creditor who has purchased the underlying obligation for value.
    2. Even if the legal presumption is not raised, a factual assumption will arise in the mind of any judge when faced with these tracks in the sand. You always want your alternative narrative to run parallel to the tracks laid by the Foreclosure players.
  7. References to any repayment plan, modification or deferred payment should be treated the same as any reference to forbearance.
  8. The person that they have designated for you to contact is most likely a temporary employee or independent contractor in a call center. This person has no knowledge and no authority to do anything. The same is true for any person designated as being in charge of “escalation.”
  9. As I have stated many times before, what is needed here is not legal argument alone. In order to defeat this scheme, Consumers who think they are subject to some loan agreement should be organizing themselves and raising money for the purpose of paying a team of private investigators. These investigators will reveal facts and circumstances that are inconsistent with the documents sent to the consumer. And the investigation will reveal the stone wall behind which the Foreclosure players are hiding.
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

Click

Neil F Garfield, MBA, JD, 74, 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.
  • 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.

 

 

Here is another lie: Wilmington Savings Fund Society

The purpose of this terminology and sentence structure is to create names, not entities. These are bankruptcy remote, liaiblity remote, reality remote names without any legal person or entity appearing in the chain.

And let me be clear — yes I do think that anyone who has entered into a transaction in which a mortgage and note were signed has good reason to contest to existence of any debt, since it is not claimed as owned by anyone. Such ownership is ALWAYS erroneously and deceptively implied.

The banks are highly exposed on this issue and they know it. Their only strategy that works is deep pockets for the long haul, deception and intimidation. All of that can and should (in my opinion) be challenged by more homeowners who will probably find that their “balance” (if any exists) is substantially lower than anything they had imagined.

Instead they may find that they have a perfectly valid claim for disgorgement of all money paid by the homeowner and damages for being cut out of a deal that the homeowner was drafted into participating.

There are dozens of ways to mount such challenges most of which have been settled confidentially in which the homeowner has been contracted to be silient in exchange for compensaiton.

One of those strategies is the offer of a payoff provided the announced or named claimaint (1) acknowledges the payoff and (b) claims, in writing signed by an officer that is legally authorized to issue the acknowedlge ment because it is the owner of the alleged underlying obligation.

It is a typical estoppel letter situation as it is known in Florida in which it is already authorized by statute.  When the demand produces crickets, the homeowner sues for mandatory injunction, quiet title against the known (i.e., named) parties and damages/ idsgorgement in part for itnentional interference in tehr elatinship between the hoemowner and the hidden creditor, if any exists.

If John Q Smith is a real person living in some legal jurisdiction, he exists. But that doesn’t mean that anyone can just use his name to engage in a transaction with anyone else, much less the courts. And that is exactly what is happening with XYZ Bank, as trustee in cases where the lawyers have been instructed to file in the name of a well-known brand name bank as trustee — not on its own behalf but on behalf of a trust.

That trust, as I have written as recently as 2 days ago does not exist and even if there was a trust agreement in existence, the trust contains nothing to manage. So naming it as claimant, beneficiary or Palitniff is possible if a lawyer field it, but that does not mean that it is a claimant, beneficiary, or Plaintiff — especially when the XYZ bank, as trustee knows nothing about the legal proceedings and has never issued any instructions commanding the lawyer to file the foreclosure.

That lawyer, by the way, has in nearly all cases never had any contact, contract or other relationship with XYZ Bank which is why I am suggesting more attacks on appearances by counsel for the foreclosure mills. The lawyer knows he or she is getting paid but they don’t by whom and when the case comes to their attention it is by way of an electronic screen with instructions and data from unknown sources together with unverified reports.

I’m following up my serial attack on fake trusts named in foreclosure actions against homeowners. My article on Bank of New York Mellon was received very well by a number of people — including from some surprising quarters.

And I have written consistently about how trusts are legally created and what is a trust and what is not a trust regardless of label. Like when the PSA recites that it is a trust agreement, it isn’t. There is a hidden document that purports to be a trust agreement but still does not rise to the occasion. There is no trust. It is all an exercise in concealing the fact that the investment bank is doing business with itself.

Today we look at WSFS which is a Chartered Federal Savings Bank. Keep in mind that if it is not taking deposits or making loans it is not really operating as a bank.

I have in mind one specific iteration of the widely used WSFS moniker. “Wilmington Savings Fund Society, FSB d/b/a Christiana Trust as Owner Trustee of the Residential Credit Opportunities Trust III.” Just like Bank of New York Mellon as trustee, this says nothing of actual, legal or even possible significance. The purpose of this terminology and sentence structure is to create names, not entities.

  1. If Wilmington Savings Fund Society, FSB is doing business as (DBA) Christiana Trust then two things are true. (a) WSFS is NOT acting as a bank and (b) “Christiana trust is merely an alternate name for WSFS. So far that tells us nothing.
  2. Then you have a grammar problem that has been intentionally created.
    1. WSFS might be the trustee of Residential Credit Opportunities Trust III.
      1. This could only be true if WSFS officers have created and maintained a trust account for identifiable beneficiaries with assets granted to it by a trustor or settlor. this is most certainly not the case.
      2. You have a right to see that account and you should ask for it in discovery. I don’t think you can reach for it in a QWR or DVL although you can include a request for verification that WSFS is the owner of the underlying debt.
    2. WSFS is doing business as Christiana Trust as Owner Trustee of the Residential Credit Opportunities Trust III.
      1. This appears to be the case. In most instances, WSFS will take the position in litigation that when pushed to the wall, it is neither the party in interest nor the trustee for any actual trust.
      2. In this instance, the use of trust language in creating names without entities is extended to the point of absurdity.
  3. So there are those who will point out that the name “Christiana Trust has been registered in the state of Delaware that allows LLCs to use the word “trust” in their name. But look closely. Did anyone say they were referring to THAT Christiana Trust? The point is that there is no trust — just an illusion that passes when one does not look closely enough.
  4. So then there is Residential Credit Opportunities Trust III which is also either a fictitious name or a reference to Residential Credit Opportunities Trust III, LLC. THAT company has filed an initial registration statement with the SEC. It isn’t a trust either.

The bottom line is that WSFS moniker is being used as a shield and a sword without any one person, company, trust, or other business entity directly asserting any title or rights to receive any payments from a homeowner or any property owned by a homeowner. It isn’t fraud if the defendant did not know the information was untrue. it isn’t fraud if the defendant’s words implied something that was untrue if the defendant did not mean to deceive. On the other hand, it might be fraud if the defendant was not acting as a lender, successor lender, or servicer.

But in all events, the claimant, plaintiff, or beneficiary that goes by that moniker intends to maintain plausible deniability which is to say, it is a ghost and not a legal person.

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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, 74, 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 TO ORDER 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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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.
  • 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! Homeowners Prepare for the Next Storm! 3PM PDT 6PM EDT

Thursdays LIVE! Click into the WEST COAST Neil Garfield Show

with Attorney Charles Marshall

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

Now that the various foreclosure and eviction moratoriums have either ended, or are on life support, it is more important than ever for homeowners in or near foreclosure, to exploit the paper trail created by servicers and purported mortgage noteholders to carve out the details of what is in, and not in, these debt representation letters.

As has been the case for years, formally challenging these letters, such as through qualified written requests and/or debt verification letters, is a sound way to get going documentation to show both the absence of the right to foreclose or more damning evidence that chain-of-title and related issues outright prevent the legal ability to administer, collect or enforce transactions with homeowners through foreclosing on their property.

The Covid era actions impacting foreclosures continue apace as well, and Charles will break down the latest in that arena.

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Editor’s Note: And you could be setting the stage for enforcing very valuable claims of homeowners to receive disgorgement of money paid and money made in violation of TILA, FDCPA and RESPA. Money made without disclosure must be paid back. This is something that most lawyers have yet to explore because they think it is a bridge too far. I don’t agree. And I know for a fact that the lawyers for investment banks are fearful that this will happen. They have said so in both private communications with their clients and in public presentations to bankers and lawyers for bankers.

I think that one of two things would have happened had there been adequate disclosure at the “closing” as to the identity of the parties involved, the amount of money they were generating as a result of the homeowners signing those papers, and the risks associated with accepting (without knowledge) a virtual lender without any risk of loss in lieu of a real editor with a risk of loss.

The first thing that would have occurred is that lawyers would have been alerted to the opportunities to get their client homeowners a bigger piece of the previously undisclosed pie. And the second thing is that competition would have grown from the investment banking sector to offer greater incentives to homeowners to start the incredibly lucrative process of selling securities.

Contrary to the threats of Armageddon from Wall Street if their securitization infrastructure is disturbed, the only thing that would happen, in my opinion, is that the current investment banks would make somewhat less profit because of competition from other investment banks. And the government is not preserving the economy by buying into those threats. It is saving oversized profits for a few investment bankers.

I personally feel that most homeowners and former homeowners understand they got screwed. And I think that politicians have been too lazy to actually get the data and analysis about this phenomenon that brought down the entire world economy in 2008 and might do so again. Any smart politician who runs against the banks will get more in private donations and votes than by lazily accepting Wall Street donations.

Why it isn’t really a trust — REMIC or otherwise.

The certificate holders are creditors of the beneficiary investment bank who is merely doing the business under the name or label of the “trust.” In short, it is a recitation of an investment bank doing business with itself.

If you name your car Mary Ann it does not imbue the car with the attributes of a living being. But there is no harm in you thinking fondly of your car as Mary Ann. On the other hand, if the car is an accident you can file a police report or even a lawsuit claiming property damage but you can’t claim assault and battery because Mary Ann is still a car — i.e., property.

The financial community on Wall Street depends upon the ignorance or forgetfulness of nearly everyone when they create, promote or justify strategies borne in the securitization era.

So let’s review the basics. What is a trust, what are the components, and what does a trust do?

Trusts are among the fictitious “persons” that are allowed by law. They are formed for a variety of reasons. In legal actions, it is treated as though it was a person but everyone knows it is not a person. Coming up with the name for a trust is the first step in formation. But if you do nothing else there is no trust. It’s like saying you will name your car Mary Ann before you buy the car. The name exists, but not the car.

The next thing that is required by statutes in all US jurisdictions in the writing and signing of a “trust agreement.” But if you write up your grocery list and put the label “trust agreement” at the top of the page that doesn’t qualify as a trust agreement.

Why? Because no trust was created, organized, or registered anywhere, of course. But more importantly, the trust agreement consisting of your grocery list does not contain any of the elements of a trust agreement s required by statutes in the jurisdiction in which the “trust” was intended to be created.

So if you want your document to be a valid trust that gives powers to a named trustee to act on behalf of the trust for the benefit of beneficiaries you need all of the following elements:

  • Person setting up the trust. The person is commonly known as the trustor, though you may sometimes see the terms settlor or grantor.
  • Objective of the trust. You use different types of trusts to achieve a variety of specific estate-planning or other objectives. You can use some trusts for a business objective, while others help you achieve more than one goal.
  • Specific kind of trust. Trusts come in many different varieties. Regardless, when you’re setting up a trust, you need to decide what type of trust you want and make sure that you follow all the rules for that particular type of trust to make sure that it’s proper and legal, and carries out your intentions.
  • Property. After you place property into a trust, that property is formally known as trust property. [In the case of documents that bear a title relating to REMIC trusts the trust property could be the right to receive payments from homeowners — but only if the grantor legally owned the right to receive such payments.]
  • Beneficiary. A trust’s beneficiary (or, if more than one, beneficiaries) benefits from the trust in some way, usually because the person or institution will eventually receive some or all of the property that was placed into the trust — or the income from the property placed in trust. The property can be intangible (some legal entitlement) or tangible (ownership of real or personal property or an interest in property —- like a mortgage).
  • Trustee. The person in charge of the trust is known as the trustee. The trustee needs to understand the rules for the type of trust he or she is managing to make sure everything in the trust stays in working order. But if a person or business is named as trustee and they have no power, rights, or obligation to manage any property for the benefit if the trust and its beneficiaries, the “trustee label” is only a label and not the appointment of anyone who is required to do anything.
  • Rules. Finally, some of the rules that must be followed are inherently part of the type of trust used, while other rules depend on what is specified in the trust agreement. You will find still more rules in state and federal law.

Note that the typical PSA (Pooling and Servicing Agreement) is not a trust agreement even if it is labeled as such. It does not describe any property granted to the trustee or the trust, and the trustee has no power to do anything in connection with managing property for the benefit of beneficiaries who are not identified in the PSA.

In addition, the typical PSA contains only references to future events. A trust agreement would not be a complete creation of any trust without a legal grant of property by a grantor into the trust. And the typical PSA is unsigned or digitally singed by unknown sources. It is also incomplete in that the exhibits it refers to are not attached — most notably the Mortgage Loan Scheule which has not yet been created. And there is no recitation that anyone owns the loans on the schedule even later.

If you demand a copy of the actual trust agreement you will discover three things in the typical situation.

(1) the required elements of a trust are absent

(2) the purpose of the trust is to establish a name in which “legal title” only will be held by virtue of the execution of other documents purporting to grant title to the “trust” and

(3) the beneficiaries are one or more investment banks — i.e., they do not name any certificate holders as beneficiaries of the “trust” because they are not beneficiaries. The certificate holders are creditors of the beneficiary investment bank who is merely doing the business under the name or label of the “trust.” In short, it is a recitation of an investment bank doing business with itself.

So now you know that the lawyer who says he is filing the foreclosure on behalf of XYZ bank as trustee is not representing XYZ bank nor the tr just that is named and certainly not the certificate holders. I think more attention should be paid to his subject and the activities of lawyers who say they have a client when inf act they don’t. The circular logic of saying that they were hired by a company claiming to be a servicer because of some power of attorney signed by the company or bank named as trustee for a trust that has no property with a  trustee who has no powers, won’t survive scrutiny. But you’re going to be required to fight for it.

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

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Neil F Garfield, MBA, JD, 74, 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 TO ORDER 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 TERA – not necessary if you order PDR PREMIUM.
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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.
  • 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.

 

QWR and DVL Guidelines

A QWR is a qualified written request under the rules of RESPA.

A DVL is a debt validation letter under the rules of the FDCPA.

Centers of either one must conform to the existing rules — not what they would like the rules to be.

The purpose of a QWR or a DVL is to resolve questions or disputes. It is not a substitute for discovery that occurs during litigation in court. Several people send me their own drafts of a QWR or DVL, complaining that they never got a response to most of their questions. The answer is that most of the questions do not relate to the rules and regulations governing sending and responding to a QWR or DVL.

In most cases, I think that the wording does not comply with the rules governing a QWR or DVL. You should simply ask whether they authorized and executed the document in question. You can then ask why they authorized and executed the document — i.e., whether there was a transaction in which the underlying obligation was purchased and sold. Then you ask the date, place, and parties to that transaction and whether there are any other documents that would show that ICE was in the chain of transactions starting with the origination.

The other issue is that people often ask for “proof.” This is an open-ended term with many meanings. For example, asking for proof of payment usually results in the production of the note, the mortgage or the assignment of mortgage. It is an open question as to whether or not there is an obligation to actually show a canceled check or other evidence of the transfer of money — unless you ask for it exactly that way. In all probability, you will never get a chance to enforce that until you are in litigation.

And you will most likely end up in litigation in one of two ways. First, you can wait until the foreclosure starts, or second, as I have been promoting lately, you can initiate a lawsuit for violation of the FDCPA and related consumer protection acts.

As with all legal undertakings, I continue to caution that it is far more challenging to pursue a legal strategy without a lawyer than it is to pursue one with a lawyer. But I recognize that most lawyers still don’t want to take these cases. If you want to change that, then you must approach the lawyer with a starting strategy based upon facts rather than just accusations.

If the lawyer is given the impression that you are only seeking to delay and “inevitable” foreclosure, it is unlikely that he or she will accept the engagement. Most homeowners what a lawyer who will accept the engagement with the same urgency and importance as one would approach the defense of a criminal case. But many people, having been burned by the system, refused to apply their resources to pay the attorney to win. Part of this is based on the common belief that Foreclosure is inevitable, which is what the banks want us to believe, rather than wrongful, which I have repeatedly proven in court.

There is nothing wrong with pursuing and protecting your rights merely in the hopes of gaining a settlement, modification, or other agreement that results in retention of title to a homestead.

But if there is one takeaway from the work that I am doing it is this: there is no doubt in the minds of the attorneys who represent the financial community that their claims for administration, collection, and enforcement of payments from homeowners is not supported by law. In addition, there is no doubt in their minds is that by prolonging the litigation and making it as expensive as possible for the homeowner, they will continue to win cases that have no legal support. In short, they know that most homeowners will “Drop out.”

My point is that if you really want to accomplish a favorable or satisfactory result, you need to properly litigate your case to a conclusion with the assistance of a competent trial attorney.

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

Click

Neil F Garfield, MBA, JD, 74, 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. In  the meanwhile you can order any of the following:
CLICK HERE TO ORDER 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 TERA – not necessary if you order PDR PREMIUM.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
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CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR) (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
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.
  • 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.

 

CLE Webinar Friday 11/19 4PM EDT Prelitigation Advice and Proactive Legal Actions in Foreclosure Cases

This New Webinar is about what to do before the battle begins.

APPROVED FOR 1.0 CLE CREDITS
APPROVED BY THE FLORIDA BAR

(1 Hour Presentation)

Course Materials and Follow up conference call included.

LIVE Streaming Presentation 4pm EST 11/19/21)

(Q&A 12/3/21 at 4PM EST).
HOMEOWNER ATTENDANCE PERMITTED

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Prelitigation Advice and Proactive Legal Actions
in Foreclosure Cases

Neil F Garfield, MBA JD: describes the issues presented to the general practitioner, bankruptcy lawyer and trial counsel when first presented with a client who fears Foreclosure on their Homestead. The client intake process is described in detail along with the responsibilities of the attorney to render advice based upon research and investigation. This course takes the viewer through various options for passive and proactive strategies and tactics that are likely to save home ownership.

Enforcement starts with claims of authority to administer, collect and enforce the alleged debt. It follows, therefore that if those claims are false, the time to confront them is at the earliest possible time.

Neil F Garfield, a Florida attorney and investment banker, presents the results of 16 years of research, analysis, trial appearances, expert witness presentations, and CLE presentations. In this modified course presentation, he focuses on the duties of lawyers who use or oppose assignments of mortgage, and the methods that can be used to perform expert analysis.

Since 2008, GTC Honors, Inc. has been an approved host provider for CLE (for lawyers) credits in Florida and 26 other states that allow reciprocal credits for licensed attorneys.

A short Q&A session is included — but it is not an opportunity to seek legal opinions on specific cases. It will be followed up with a conference call 2 weeks after the presentation. The presentation will be live on 11/19/21 at 4 PM EDT or on-demand. On-demand sessions will be available after the live presentations at the price of $95.

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1.0 CLE CREDITS

Curriculum:

  • Client Intake:
    • As important as Medical History going back two owners
    • Deadlines: Extensions and Pitfalls
    • Goals:  Engagement and Expectations
  • Experts:
    • Selection Criteria
    • Selecting Forensic Examiners
    • Private Investigators,
    • Forensic Document Examiners
    • CPA
    • Securitization expert: The art of preparation and persuasion.
  • Understanding the Current Situation
    • Understanding Opposing Counsel
    • Get Up to Speed: Doing the required research
    • Analyzing the case and making preliminary conclusions
    • What to look for on notices and correspondence from the other side
  • Demand, Notice, and Rejection letters
    • to the company claiming to be the “servicer”
    • to the company claiming to be the “REMIC Trustee”
  • Statutory Demands: the foundation for future defenses
    • Qualified Written Request -RESPA — What is it and how should it be used
    • Debt Validation Letter -FDCPA — What is it and how should it be used.
    • Key question: Status of the alleged debt and owner
  • FDCPA and related lawsuits — effects on discovery demands, scope and enforcement
  • Defense starts immediately and no later than
    • Notice of Substitution of trustee on non-judicial states
    • Receipt of summons and complaint in judicial states
  • Be prepared for the Long Haul: The Strategy of Claimants with Weak Claims
  • How and when to charge money, contingency fees and treatment of recovery of attorney fees.
  • How lawyers can make money in this niche
  • Q&A 
  • Follow up conference call 2 weeks later 

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The questions for today are different from the questions that were present only 2 decades ago when the forms, rules and procedures were developed — before present claims of securitization of debt.

GTC Honors, Inc. the Florida approved course provider, is a Florida Corporation, Publisher of the Livinglies.me blog and thousands of articles, treatises, and guides to successfully defend foreclosure cases in the era of self-serving declarations about the securitization of debt.

Presenter: Neil F Garfield, MBA JD:

Over a 44 year legal career, he has appeared in over 2000 final hearings and trials in Federal, State, Bankruptcy, and Administrative courts covering various areas of criminal, civil, and administrative trial practice. He has been presented with numerous academic awards and a Gold Medal for academic excellence and contribution, authored the update for Florida Real Property Law for Harrison Publications when in his Sophomore Year in law school, and was the recipient of multiple community action and contribution awards in Florida, California, Arizona, and other states. He has appeared on more than 300 media broadcasts as a guest or host and has published approximately 10,000 articles on his blog, which are currently used by legal and financial researchers in 26 countries.

In 2006 he correctly predicted the 2008 financial crisis. He is a former advisor to the Arizona legislature, law enforcement and regulators. He is a recognized expert witness on securities issues including securitization of debt.

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It’s A Lie, Pure and Simple: Bank of New York Mellon, as trustee

CONFIRM SAULE OMAROVA AS HEAD OF OCC!!

———————————————————-

“Bank of New York Mellon as trustee for the certificate holders” is an exercise in deceit and fraud.

Lawyers for homeowners should pay more attention to filing a motion to dismiss or a motion for more definite statement as to the identification of the claimant. 

It is simply human to try to skip to the main issue. But it is not wise if what you are skipping is in fact the main issue.

I am currently reviewing a case in which the name that is offered as the designated claimant is “Bank of New York Mellon as trustee for the certificate holders of CWABS, Inc. Asset-Backed Securities 2011-7.” This is gibberish, nonsense, a lie intended to mislead anyone who reads it, and completely unsupportable as well as contrary to the position of Bank of New York Mellon in every instance except foreclosure.

Everything that is stated in that name is a lie. Everything that is not stated in that name but nevertheless implied is also a lie.

The lawyer who put that name on the paper or pleading will argue even further implying that that name is the name of a legal entity that owns or has some rights to administer, collect and enforce scheduled payments allegedly due from a homeowner on account of the loan account receivable established when the homeowner allegedly received money and which was later acquired through purchase by that name. It is all a lie.

Lawyers are NOT allowed to assert bald-faced lies in court; but, they are protected by a doctrine called litigation immunity from uttering such bald-faced lies as long as they didn’t know for a fact that it was a lie. That is because in the oath of every attorney he or she swears to make the most of the client’s position even if it is bad.

So let’s look at all the things that are wrong with that name and how it leads to a wrongful result: an illegal foreclosure.

  • Bank of New York Mellon is not making any appearance despite its name appearing in the title of the document or case. It is named as being a trustee which means by definition that it is not appearing on its own behalf but rather appearing on behalf of a trust.
  • There is no trust named or identified in this case. Sometimes in other cases, you will see the word “trust” used but there is no legal entity acting as a trust. I trust has I trust agreement in which the trustor, beneficiaries, terms of administration, and something is identified as having been entrusted to the trustee. But in this case, they don’t even try to identify any trust. Therefore the appearance of Bank of New York, as trustee, is a fictional appearance. It is neither appearing on its own behalf nor appearing on behalf of the trust. Regardless of whether it is a pleading or some document, the entire instrument is a legal nullity because it is lacking a legal person.
  • The use of the term “certificate holders” is also a lie. Neither the certificates nor the holders are identified. And since there is no reference to a trust, the implication that the certificate holders are somehow beneficiaries of a trust for which bank of New York Mellon is the trustee, is a flat-out lie. But here’s the kicker: anyone who has read the indenture on the certificates knows that the certificates expressly disclaim any claim or ownership interest or right to collect any payment or debt due from any homeowner. Therefore the holder of such a certificate possesses no interest in law or a fact making their existence relevant to any action in foreclosure. In the current custom and practice of securitization, the certificates that are purchased by investors are mere promises to pay, without a maturity date, a scheduled regular payment. The promise is not based upon the terms of any note or any mortgage ever executed by the homeowner and is not dependent upon the receipt of payments by anyone from the homeowner.
  • The really crazy thing is that there have been tens of thousands of foreclosures completed in which the claimant or plaintiff was named as being only a pile of certificates. In a legal process that has never been accepted by law, custom or practice as the identification of a legal person and therefore is another legal nullity.
  • And that brings us to the issue of how could Bank of New York Mellon be the trustee for certificate holders who are not part of a trust? The obvious answer is that is impossible. Further, any statement or implication to the contrary is a lie.
  • As for CWABS, Inc., that is a sham conduit referring to Countrywide Home Loans as an aggregator, not a lender, through which data passed but nothing else. No ownership of any asset was ever invested or transacted with CWABS, Inc.. And CWABS, Inc. is not actually mentioned as a party is it? So why is it there? It is there to confuse the reader. And it is a lie to mention it as a party that ever had an interest in either of the paper trail or the money trail.
  • The use of the phrase “asset-backed” is also a lie. The certificates are not backed by any assets. It says so right on the indenture to the certificates. And any effort by investors who purchase the certificates to obtain some leverage over the investment bank that lied to them when they sold the certificate has resulted in failure. Despite dozens, perhaps hundreds of cases in which investors have sued the investment bank and the named trustee, there is not a single instance in which the investors prevailed on the basis that they had some equitable interest in transactions that have been conducted with homeowners. Both the investment bank and the named trustee prevailed in such litigation simply because of the findings of fact by the judge that the certificate holders possessed no ownership interest or other equitable or legal rights in any transaction with homeowners. But several settlements did occur in which the investors accused the investment bank of fraud and negligence.

So if all of this is a lie, then why would anybody risk a brand-name, prison, and potential liability for compensatory and punitive damages? The answer is money. The current securitization practice is the Holy Grail for all investment bankers. Instead of being a broker for the sale of securities from a corporate client or governmental unit, the securities brokerage firm gets to sell the securities and keep the proceeds. Imagine an IPO in which the company that was promoted received no proceeds from the sale of their stock. That is what is going on here.

And why did they think it was necessary to use such carefully worded phraseology? Here are some of the reasons:

  • Bank of New York Mellon is used simply to create the illusion that the process is being administered and pursued on behalf of a financial institution. This is patently false. Bank of New York Mellon is in fact a financial institution but it is not appearing as a financial institution. It is appearing as a false trustee of a nonexistent trust. Even if the trust existed it would be the trust that is administering and pursuing claims and the trust is not a financial institution. But lawyers like going to court and saying things like “Your Honor this is a standard foreclosure on behalf of Bank of New York Mellon.” They like that better than saying that they represent the mysterious trust that is seeking foreclosure.
  • Stating that Bank of New York Mellon is appearing as trustee implies the existence of a legal entity that qualifies as a trust under the laws of some jurisdiction. Even in cases where the trust is named, there is never any allegation that states that the trust was organized and existing under the laws of some US jurisdiction. And in the rare cases where they do identify the state, it is usually Delaware, which allows the use of the word “trust” for an LLC, which is not a trust.
  • And the rest of the phraseology used in the “name” of the claimant or plaintiff or beneficiary is merely used to make the whole thing sound more “institutional.”

So the bottom line is that they do all of this in order to establish initially in the mind of a judge that this is a case of “bank versus deadbeat homeowner.” Once they have established that in the mind of the judge, the judge simply fills in the rest in his or her mind based upon training in law school and experience in court. The only truly viable defense that normally applies to collection efforts on debt is payment by the debtor to the creditor. And when the bank is involved it’s presumed that their claim is valid and their records are accurate.

In truth none of that is correct in virtually any of the foreclosures that have occurred over the last 25 years. The result has been a shift of wealth from approximately 15 or 18 million households to a handful of greedy people on Wall Street.

The above explanation is true, accurate, correct and confirmable by anyone. But it takes considerable effort, time and expense to arrive at those conclusions given the normal human reaction to except anything that is in writing. What has occurred, is that this transfer in wealth has occurred mostly without any taxation at all, leaving local, state and federal governments without the revenue that was vitally needed to survive the destruction caused by these “weapons of mass financial destruction.”

The entire securitization scheme survived because of a hugely successful Bluff by Wall Street insiders. They essentially threatened four presidential administrations with financial Armageddon if they were not allowed to survive. Nobody fact-checked their threat. That was a lie too.

Anyone who wants this country’s financial policies to make sense needs to avoid voting for anyone who is taking money from Wall Street and donate money and vote for anyone who is running against the mega-banks. We have a vote coming up for confirmation of Saule Omarova as head of the OCC. She wants to dig in, regulate these banks and start regulating financial technology companies so that when you get a letter, it really is from the company whose letterhead is being used and it is signed by someone who is responsible for signing it. WRITE your Senator and Congressman and hold them to account if they fail to confirm her. 

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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, 74, 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.
  • 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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TONIGHT! How consumers and homeowners win cases against “the banks” 6PM EST 3PM PDT

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Nearly all consumers think they’re litigating or dealing with banks when in fact they’re not. Tonight we look at basic elements of winning based upon 16 years of experience, research, and data collection.

Here are some of the highlights:

  • Consumers who hurl accusations at the banks are sealing their own doom.
  • The basics of every successful defense can be summed up into two words: DENY and TEST
  • Most failures in court are the result of admissions of facts by the consumer about which they know absolutely nothing.
  • Most successes in court are the result of the consumer denying everything and testing every allegation and exhibit.

Tonight I will discuss the attributes of successful defense strategies

CFPB NEWS:

see cfpb_section-1022_generic-order_2021-10

I think both litigants and litigators should take a close look at this order because it contains definitions that result from administrative research and findings, which have a presumption of being correct. What is contained in this order or specific ways in which to identify parties, products and processes. I think this can be used as a template for legal discovery.

But homeowner should be aware that there is a difference between legal discovery and a qualified written request or debt validation letter. The CFPB order could be used as a template to broaden discovery efforts during litigation. Statutory demands (QWR and DVL) are more limited in scope. If you want to file an FDCPA action, you will need a very narrow QWR and DVL.

Remote Online Notarization: Banks are ramping up the way they will conduct illegal foreclosures

Nobody talks about ICE.  But it owns the New York Stock Exchange, MERS and an incredible buffet of FINTECH capabilities and it operates as though it is a governmental or quasi governmental agency. It isn’t.

see https://candysdirt.com/2018/10/17/mers-and-ice-modernization-without-regulation-increases-housing-crash-risk/

And its practices have been institutionalized by longevity and the courts who have no idea what Wall Street is doing. The bottom line is that ICE — and its owners — have transformed the American and world marketplaces into their own personal piggy bank. As such, they  are steadilg increasing wealth inequality, unfairness in transctions, fraud in transctions, forgery, fabrication and outright theft.

The result has been social unrest, distrist of government institutions who failed to keep up with what Wall Street was doing and a growing public sense of impending doom.

The bottom line is that ocnsuemrs are making payments but they don’t know who is recieving the paymetns or why. And when they are coerced or sued they don’t know who is suing them or why. 

“ICE Mortgage Technology, part of Intercontinental Exchange Inc., has announced that MERSCORP Holdings Inc., the mortgage industry’s national electronic loan registry, is expanding its capabilities to now include industry-wide, secure storage of Remote Online Notarization (RON) videos for lenders, investors and servicers.” see https://mortgageorb.com/ice-mortgage-announces-expansion-of-mers-remote-online-notarization-capabilities

Although ICE is supposedly headquartered in Atlanta Georgia its money trail nearly always leads to offshore accounts. More importantly, it has risen to dominate nearly every facet of every financial transaction including and perhaps most importantly transactions with homeowners that they have labeled as “loans.”

Although advertised as a financial technology company it is, in a very real sense, the prime player in the creation maintenance, and promotion of securitization infrastructures and the creation, maintenance, and prime player in fake foreclosure infrastructure that plagues not only homeowners but virtually everyone else who is a party to what appears as an installment debt.

Readers of this blog (and other blogs, articles, shows and news outlets) know that notarization had become a joke in the late 1990’s. People were hired for the express purpose of documents that were put in front of them, with no time to read them because they were signing thousands of documents per day.

In turn, those documents were initially forwarded to someone licensed as a notary in any state. Nobody signed any document in front of a notary which is the point of having a notary. And went the logbooks are requested, demanded or subpoenaed they go missing.

And all of that is because the foreclosure players are all involved in the creation and use of false fabricated documents that refer to nonexistent transactions for the sole purpose of achieving a remedy to which nobody is entitled to receive — foreclosure.

So just so you know who is behind all of this — i.e., the central command of all illegal foreclosures based on false claims of securitization of debt, here is some information for you taken directly from Wikipedia. I have independently researched this data and I can confirm that all of it is correct:

And just to be clear, the participants in this scheme all agreed to STOP using false, fabricated fruadulent documents to get foreclosure judgments and sales in the 50 state settlement that was mere windown dressing. It has never been enforced and homeowners have for the most part never received any benefit from it — even though it recites a pattern of illegal activity to get foreclosure remedies that were awarded to thousands of players in millions of cases and distributed like candy instead of satisfiying a loan account receivable — which of course did not exist, being basically irrelevant to the securitization infrastructure that sold intangible rights and bets rather any debt of any consumers or homeowners.

 

 

 

“FOR THE CERTIFICATE HOLDERS” IS A DEAD GIVE-AWAY THAT THERE IS NO CREDITOR

Here is the example:

BANK OF NEW YORK MELLON AS TRUSTEE FOR THE CERTIFICATE HOLDERS OF CWABS, INC. ASSET BACKED CERTIFICATES, SERIES 2007-11.

FACT CHECK 1. BONY IS NOT A TRUSTEE FOR ANY CERTIFICATE HOLDERS BECAUSE THE CERTIFICATE HODLERS ARE NOT BENEIFICAIRIES OF ANY TRUST.

FACT CHECK 2: NO TRUST IS IDENTIFIED EVEN BY NAME.

CONCLUSION: THE HOMEOWNER IS FIGHTING WITH A GHOST. THE INVESTMENT BANK IS HIDING BEHIND IT AND EVERYONE IS MAKING MONEY EXCEPT THE HOMEOWNER WHO UNKOWINGLY ALLOWED THE SECURTITIZATION SCHEME TO PROCEED WITHOUT ANY SALE OF THE DEBT.

In every modern foreclosure there is a complete absence of anyone who did not get paid money that was owed to them. 

There is no trust bearing any of the names shown above. No trust has been organized or existing under the laws of any US jurisdiction.

There is no trustee-beneficiary relationship between Bank of New York Mellon and any investor who purchased a certificate from any investment bank or securities broker. In fact, when the investors sued, Bank of New York Mellon emphatically defended on the basis that no fiduciary duty was owed to any purchaser of any certificate. And they won.

There is never any assertion, allegation or exhibit identifying the source of authority of the bank of New York Mellon to represent anyone in connection with any underlying obligation, legal debt, note or mortgage. It is up to the homeowner to bring that to the attention of a judge. Failure to do so may constitute a waiver and acceptance of a designated virtual creditor in lieu of an actual creditor.

CWABS, INC., for practical purposes, does not exist. It performed no function. It is merely a label being used by the securitization infrastructure controlled by an investment banker book runner. The name indicates that the data came from countrywide home loans end it relates to “alternative” lending. In the context of securitization, “alternative lending” is understood within the industry as meaning that there is no actual lending activity. However, the labels are used for the purposes of making false claims of authority to administer, collect and enforce alleged loan account receivables that do not exist.

The job of the homeowner, as the defendant in a judicial foreclosure action, is to test the illusion until the illusion fails.

Homeowners I have consistently lost cases simply because they attempted to prove the fraudulent nature of the claims. This created a burden of proof so high (clear and convincing evidence) that no homeowner could satisfy it without the cooperation of parties who are not even named as interested parties in the foreclosure — despite their absolute control over every aspect.

Homeowners need only chip away at all the assumptions and presumptions that every foreclosure mail needs the court to accept. Homeowners need to remember that when the assumptions and presumptions are tested aggressively and persistently, the case evolves from a perception of bank versus deadbeat homeowner, to a perception of Judge versus Lawyer for Foreclosure Mill. The court always wins that battle. And that means the homeowner wins as well.

NOTE: keep in mind that for a securitization structure that was created in 2007, and the entire structure has probably been erased and replaced. Also keep in mind that securitization does not mean what most people think it means.

Securitization of a debt or a loan only occurs if the debt or loan, or shares in it, are sold to investors. There’s not a single securitization of residential transactions in the last 25 years in which any such sale occurred. That means that the current claimant has neither paid value for the loan nor any foundation or basis on which to actually assert that it is losing money as a result of the failure of the homeowner to make a scheduled payment. That is why you never find any allegation in any case, nor any exhibit, asserting any loss or showing an accounting ledger — a basic requirement for any case.

The only relevant loss that might be felt by anyone on the finance side, is the loss of profit in the event that the foreclosure is unsuccessful.

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

Click

Neil F Garfield, MBA, JD, 74, 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 TO ORDER 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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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.
  • 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.

 

Basic Bookkeeping and Accounting Knowledge Can Keep False or Unreliable Information Out of Evidence

The current custom and practice is to substitute a partial report that is entirely hearsay (usually titled “Payment History”) for the expected and legally required loan account receivable. Such a report when revealed as such is not admissible into evidence if the homeowner raises an objection.
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In the alternative the homeowner can get such reports out of the evidence record by revealing that the report is (a) not based on financial transctions completed with the company offering the report and/or (b) that the report is not the loan account receivable of any creditor.
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The basic premise is as I have stated it — there is no loan account receivable in most cases. The reason for that is that from the finance side, they were not intending to make a loan, take a risk on lending, or become a lender subject to laws, rules and regulations governing lending practices or the creation, sale, and trading of securities (regulated or unregulated).
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While that statement is undoubtedly true in most instances, it cannot be proven without access to information controlled by third parties who are not even related to the parties bringing the foreclosure claim. And revealing that the foreclosure players are refusing to comply with basic discovery rules and even court orders will, as a practical matter, only serve to partially persuade the judge who hears the case.
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The homeowner must make every possible effort to keep evidence out and if it’s admitted, then to get it out or knock it down. That job is a lot easier if the lawyer understands the basic principles of double-entry bookkeeping and the reporting principles in generally accepted accounting principles. This is not rocket science.
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The current custom and practice is to substitute a partial hearsay report (usually titled “Payment History”) for the expected and legally required loan account receivable. The result is a gaggle of false statements supporting the smoke and mirrors that characterizes the PONZI scheme currently referred to (erroneously) as “securitization.” Keeping this report out of evidence is one of the ways homeowners win.
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And the basic strategy is to avoid as much of the burden of proof as is possible by focusing the strategy on revealing the unwillingness of the presumed “creditor(s)” to produce proof that a loan account receivable due from you is on their accounting ledger. Do not accept the “Payment History” as a substitute for the loan account receivable, which is an asset of the party who owns it. A true loan account receivable from a real accounting ledger would show the following:
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  • Debit to cash or increase in liability for funding the homeowner transaction
    • Corresponding Credit to Loan Account receivable establishing the loan account
  • Debits to the loan account receivable (reducing the balance) for all payments received and allocated to the loan account by the creditor (not just the servicer, because the servicer does not keep track of all possible activity on the account — only scheduled payments from the homeowner, regardless of whether they are due or not.
      • Even that is most likely not true in most cases. The apparent servicer usually does not handle the payments from homeowners even when checks are made out in the name of the “servicer.” That is all handled by lockbox arrangements and FINTECH that is unrelated to the named servicer.
    • Corresponding Credits to the cash account for such payments. This means that the cash value of the payments received is deposited and held in a depository account in a financial institution where such an account is named, owned and controlled by the creditor (or servicer, if the claim is that the Payment History is a business record exception to hearsay). If no such depository account exists then the “Payment History” from the servicer is a hearsay report of data received from third parties and not made by servicer employees at or near the time of a transaction with the servicer.
      • If there is a claimed “servicer involvement” then there is a corresponding debit to cash reflecting payment to a creditor — something every homeowner should demand since it shows who the “servicer” is working for
      • and corresponding credit to accounts payable liability owed to the creditor
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Note that without all of such information, the report being shown to the court or to the homeowner is NOT a loan account receivable. Most likely there is no showing on the report of the “servicer” of the establishment of the loan account receivable, nor are there any notations of payments to creditors. By definition, that means that report is not a full report of the account receivable or, more likely, that it is not an admissible report of the status of any loan account receivable.
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But legally unless the lawyer understands the basic accounting principles of double-entry bookkeeping, he or she will usually not raise any objections nor conduct discovery on the above issues — in which case they are most likely waived.
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The way to start thinking about these issues is by thinking about the difference between your bank account, your check register that you keep, and any record you might keep in a journal (general ledger) that keeps track of what you owe or what is owed to you. If what is presented as “proof” of the existence of a loan account receivable and its current status does not line up with that simple analogy, then you are being steamrolled.
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And if you’re looking for a local accounting firm with clout to testify on these issues I would strongly recommend the employment of an established CPA firm to serve as an expert witness on the fundamentals of bookkeeping and accounting. I had conversations with some of them and I was very impressed how well and how quickly they grasped the issues discussed in this email. They are not inexpensive but their testimony could be very persuasive in keeping out evidence and forcing the foreclosure mill to withdraw the claim.
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In my experience as lead trial attorney and as a legal consultant to other attorneys and pro se homeowners, this is a primary reason that homeowners have won their cases at trial —even after they tried to bar evidence before trial — and even when they did not realize why they won.
*
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

Click

Neil F Garfield, MBA, JD, 74, 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. In  the meanwhile you can order any of the following:
CLICK HERE TO ORDER 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 TERA – not necessary if you order PDR PREMIUM.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
*
CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR) (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
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.
  • 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.

Lay People Look at What the Document Says. Lawyers Look for What the Document Does Not Say

I am often sent documents to review. And most of the documents purport to grant authority to some person or entity to do everything (or at least something) necessary to complete the process of foreclosure. In virtually all cases documents that are allowed to appear are merely part of the illusion of authority and not the source of Authority.

In short, the grantor does not say that it owns or has the authority to grant authority to anyone else. This is considered a fatal defect on most documents but it occurs regularly in foreclosure cases.

The interesting thing about documents like this is that they do not use any preamble stating that the company owns any of the loans for which the Authority has been granted.

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It is standard practice in virtually all legal documentation of this sort to start off with a paragraph that starts with the word “whereas”.
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The custom and practice would actually require two such clauses. The first being an affirmation of title or warranty of title. The second being an explanation of why such authority is being spread out over several people rather than a single person who is in charge of the enterprise.
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Many times the document presented is an agreement of some kind. Usually, the agreement is either not signed or digitally signed. It is also usually incomplete, referring to exhibits that are not attached or which conflict with the position taken by the foreclosure mill. Such agreements are only produced for purposes of foreclosure. They are not intended to be used and they are not used for any other purpose by and between the parties to the agreement or related parties.
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No transaction lawyer in the country would have drafted the agreement that people have sent to me if they actually intended for it to be used and enforced. *
The only reason these documents are created is to create the illusion and distraction that arises from a presumption that the company would not have such an agreement if it did not own the underlying obligation, debt, note, or mortgage in connection with active loans.
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Lawyers sometimes overlook these issues. The lazy way is to look at what is there. The appropriate way for a lawyer to review such a document is to consider what is not there and what should be there.
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Neil F Garfield, MBA, JD, 74, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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Anyone who participated in the 9/29/21 CLE Webinar “Examination and Challenge of Assignments of Mortgage” must have come away with at least this takeaway — the devil is in the details.

And as I repeatedly suggested in that 2-hour CLE webinar (now available on-demand at lendinglies.com, it is only by coordinating the work of private investigators, forensic examiners of documents, and legal practitioners that homeowners actually prevail in litigation.

If there are two people that understand the intersection of these skills better than nearly anyone else, it is Bill Paatalo, Private Investigator and Charles Marshall, Attorney at Law.

Bill Paatalo joins Host Charles Marshall on the Neil Garfield Show today to break down with Charles a recent case handled by Bill on the invesitgation end, in which Bill was able expose a major deficiency in the servicer/lender’s case.

Additionally, Charles will address the latest on the Covid front, including updates on how foreclosures and unlawful detainers are heating up in California and elsewhere due to the lifting of the various moratoriums.

9/29 CLE Webinar Q&A

As promised we are doing a follow-up telephone conference to my CLE presentation of “Examination and Challenge of Assignments of Mortgage”. It was conducted live via ZOOM webinars at 3 pm on Wednesday, September 29, 2021.  The follow-up conference call details are below.

I am announcing here to allow nonparticipants in the Webinar to listen to the Q&A.

Participants can have their questions answered by writing to neilfgarfield@hotmail.com . No questions will be taken orally.

The recorded 2 hour Webinar is still available for at least 2 CLE credits in Florida and several other states.

Click Here to Purchase Access to 9/29/21 CLE Webinar for lawyers “Examination and Challenge of Assignments of Mortgage.” 

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FOLLOW-UP Q&A CONFERENCE CALL FOR EXAMINATION AND CHALLENGE OF ASSIGNMENTS OF MORTGAGE

Date: October 15, 2021 (Friday)

Time: 1:30 PM (45 minutes)

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