Livinglies's Weblog

Require every public official to certify and itemize what he/she read, reviewed or heard before voting or acting on the subject matter.

Some readers will recall the extensive work I performed as an expert and consultant to state legislatures. I also served as an outside consultant on many political campaigns. I met and established relationships with leaders of both the Democratic and Republican parties.

The one theme that remained constant through all political issues being discussed is that, in most cases, most of the people voting or acting on an issue, had no knowledge about the issue and no desire to learn.

They were merely concerned with retaining support from the establishment of their political party. Once instructed on how to vote or act, they did so. If asked by the press, they would either ad hoc make up a rationalization on the spot, or they would have been given a “talking points” memo that was short enough to memorize.

In some cases, legislation or even executive action orders are not read by anyone except the multiple authors who contributed to the verbiage appearing on them. Not even the authors had read the entire bill. This is as true in the course as it is in the legislature and executive branch.

The reason why immigration has never been solved is that nobody wants to solve it. The establishment of both parties believes it is too juicy an issue. Right now, it is producing hundreds of millions of dollars in donations and votes on both sides. Why give that up?

The same thing happened when we ended up with “private prisons.” That is clearly a contradiction in terms. Adding profit into the picture guaranteed that private investors would fund donations to those politicians who would vote for it, thus requiring laws that criminalize behavior that would put and keep people in prison. Prison is a public function, not private.

As for the justice system, imagine what would happen if the some of the behavior is now criminalized was exempt from criminal prosecution or at least lightened. Fewer prosecutions would mean fewer judges, fewer administrators, fewer guards, fewer prisons, fewer prison cafeterias, fewer paid calls from prison, fewer prosecutors, and fewer defense lawyers. That result is unacceptable to both Democratic and Republican public officials.

A declaration from the official that they were not aware of the entire content of the bill when they voted for it should be sufficient grounds to nullify his/her vote.

If we don’t do something like this by statewide resolutions, we can expect more of the same. Clearly, the officials are not going to help us. Good luck

Filed under: foreclosure | 1 Comment »

1. The central issue is not whether the homeowner owes a “servicer” any money. The central issue is whether the homeowner owes a creditor money.

As for Fannie Mae, I think you might be oversimplifying the situation.

1. I totally agree that if FNMA is not the creditor — either on its own behalf or on behalf of a legally existing trust as Master Trustee, then any records of FNMA or anyone claiming to enforce a claim for money on behalf of FNMA is irrelevant, and even potentially subject to sanctions.
2. To know whether FNMA is a creditor, a lawyer purportedly representing FNMA must be willing to assert that status based upon a declaration or confirmation from FNMA that the subject homeowner owes FNMA money.
   1. This is one of the places where procedural tricks take the place of substantive allegations or arguments.
   2. The issue under the rules of evidence is whether the declaration from FNMA is truthful, and perhaps just as important whether an officer of FNMA gave such a declaration. This highlights how the banks weaponize the rules of procedure. The outlook is cloudy.
      1. If you do not stay razor sharped focussed on the central issue, you will get (a) an acknowledgment or declaration from a person (probably a contract worker) singing on behalf of a “servicer” (whose function as a servicer is not supported by any evidence) who claims representative rights for litigating on behalf of FNMA.
      2. The central issue is not whether the homeowner owes a “servicer” any money. The central issue is whether the homeowner owes a creditor money.
      3. The FNMA servicing agreement DOES grant such powers to Wells Fargo and other qualified banks.
      4. By focusing the court’s attention on the existence of those powers, the opposition is able to distract the court from the central issue of litigation: whether the homeowner owes money to FNMA.
      5. The liability of the homeowner is initially presumed from any document that looks even close to being facially valid. So the job of the homeowner and homeowner’s counsel is to rebut that presumption or to remove the right to use it. Since the homeowner cannot rebut the presumption without an admission from the opposition, there is only one strategy that has a good chance of success: attacking the right to use the presumption.
   3. Attacking the use of the presumption means either (1) attacking and objecting to the “facial validity” of a document (typically the endorsement of the note or assignment of the mortgage) and/or (2) attacking the right of the opposition to put on any evidence since it has violated the discovery rules contained in the rules of civil procedure. The opposition violates those rules when they fail to answer the question and produce a copy of the unpaid loan account on the books of FNMA.
      1. By failing to provide evidence or information likely to lead to the discovery of admissible evidence relating to the existence and ownership of the presumed underlying obligation, they have waived their right to presume that the underlying obligation exists or is owned by FNMA.
      2. They can still produce such evidence at trial, but only if they have complied with discovery demands and the court’s orders compelling compliance with the discovery rules and with the orders issued by the court.

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The central issue in the litigation is not whether powers are granted between parties but rather whether any of them ever had any relevant powers as the foundation for the claim to collect money from the homeowner.

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Ironically, due to the court doctrine that denies homeowners the right to be proactive in challenging the “servicer” and “creditor” until after the foreclosure is launched, and in many jurisdictions, after the foreclosure is completed, the best time to present this might be by tracking the events after judgment and after the sale.

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It is there that the truth comes out. The judgment, credit bid, or right to sell is often transferred multiple times to conceal the fact that FNMA did not get any money from a forced sale and was never intended to receive it. The paperwork, as always, is vague and confusing. But homeowners do have the right to inquire where the money went and the amount of the loss that was covered on which account or ledger of what party.

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

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

Neil F Garfield, MBA, JD, 76, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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FREE REVIEW: Don’t wait, Act NOW!

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

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

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

But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 14 years or more. In addition, although currently rare, it can also result in your homestead being free and clear of any mortgage lien that you contested. (No Guarantee).

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

Please visit www.lendinglies.com for more information.

Filed under: foreclosure | 1 Comment »

The problem with free speech is that it enables people to lie without fear. It is the dominant method of securing patrons for your business, votes for your candidate, and investors for your stock. Although frequently illegal, it doesn’t stop anyone from doing it. Only the lowly go to jail. The real big liars go on to make more pornographic profits.

The recent $1 Billion Settlement between Wells Fargo and its investors highlights this continuing problem. Repeatedly hit with “settlements” that implied a promise to consumers, the US government, and now investors, Wells Fargo has paid the tab and continued to fake the existence and status of financial accounts. The difference between Wells Fargo and its cousins on Wall Street is that Wells Fargo was caught multiple times.

The $25 Billion multi-state settlement was a drop in the bucket compared to the trillions (not a misprint or typo) stolen by Wall Street banks. What was missing from that settlement was any meaningful relief to homeowners who had lost the title to their homes because fake claims were presented with fake documents.

Most people do not understand that these fake accounts do not get canceled. Some of them are terminated, but all of them are subject to the pressure of intermediaries working for Wells Fargo to “enforce” the terms of the fake account. This is possible because no settlement ever publishes a list or any form of access to determine if certain account numbers were faked. It is always left to internal procedures to make things right based on a false promise to do so.

As a result, consumers remain blithely unaware that they are paying fake charges on a fake account. All of this is the product of a very cynical business plan based on the apparently correct premise that the banks can stay on top of the food chain by lying.

Why is this relevant to foreclosure?

The entire reason why “securitization” became a business plan is that Wall Street banks were able to create fake accounts with fake terms and fake attributes. They could have pursued a business plan in which transactions were mortgage loans and then either split up or aggregated into assets that were parceled and sold off to investors. They didn’t, but they made us think they did.

The reason they pursued the “under the table” approach rather than the transparent approach is that by faking it, they could create risk-free transactions in which the entire potential for economic loss rested on the homeowner. And the corollary reason was that by foreclosing (i.e., enforcing the terms of a fake account), Wall Street did what Wall Street does best: make other people’s money their money.

By carefully restricting access to information, the banks could convince even the victims that they were not victims of fraud. And because of customs and practices in the practice of law, nearly everyone ignores what happens after a foreclosure process is concluded in the courts or concluded in nonjudicial states.

But for those of us who do follow the money trail, we know that the money collected from the forced sale of property under judicial or nonjudicial process never goes to the party named as claimant and always goes to an investment bank that does not own any unpaid underlying obligation due from the homeowner. We know that there is no “loan account” on the books of any creditor. It only exists as a manifestation of imagination on the books of a company named as a “servicer.”

Wall Street did not need the accounts to be real. They just needed us to think they were real. And so far, they have gotten away with it for over 20 years. Thye drained the US economy of wealth and then went on to continue their illegal activities like drunken sailors.

And they are still doing it.

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

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

Neil F Garfield, MBA, JD, 76, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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FREE REVIEW: Don’t wait, Act NOW!

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

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

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

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

But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 14 years or more. In addition, although currently rare, it can also result in your homestead being free and clear of any mortgage lien that you contested. (No Guarantee).

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

Please visit www.lendinglies.com for more information.+

Filed under: foreclosure | Leave a comment »

Bill Paatalo published his analysis and frustration with the way that lawyers create “shades of gray” when there is nothing to be seen. See attacking-the-powerless-and-deceptive-limited-power-of-attorney-documents-in-foreclosure-litigation/

My instruction to lawyers is (a) stop being lazy, (b) read each word carefully and (c) think about what you have read. The answers are all right there in front of you if you just read, comprehend and accept.

If the proposed governing document is offered as a foundation for evidence proving the existence of the unpaid “loan account,” then the first thing to do is to look at the back and see whether it is signed. If it is not, read no further. The document is a decoy. The second thing to do is to look at the attachments. If they are there, then are they complete?

For example, if the attachment purports to be a mortgage loan schedule, then is there any indication on the pages that follow as to where that list came from, when it was created, by whom, and for what purpose?

Then read the document to see if it is a proposal for an agreement that has been executed or whether the promised actions are all future actions. The standard Pooling and Servicing Agreement is a comic book depicting future scenes that never occurred and never will occur, nor are they intended to occur. If the document is not self-executing — i.e., bearing the language that something is hereby transferred, sold, bargained or sold then the entire document is irrelevant. Hint: OBJECTION: RELEVANCE, LACK OF FOUNDATION).

Then you have wording like this:

“[m]ay only be executed and delivered by such Attorney-In-Fact if such documents are required or permitted under the terms of the related servicing or management agreement[s.”]

I am not kind, even perhaps harsh, to attorneys who skip over that wording. If the document is such that the powers and obligations can only be resolved by finding other documents that may or may not be in the public domain, the objection is FOUNDATION. Without those other documents, the proposed document cannot be introduced into evidence. The document lacks any probative value and is not the foundation for arguing or expecting the court to apply any legal presumption.

Such documents are not even facially valid. If you need to consult other documents to figure out whether anything happened, the document is not facially valid. This especially includes assignments of mortgage or beneficial interest under a deed of trust. But it also includes an undated endorsement on a note for which there is no alleged delivery date and no date of endorsement.

The proponent of such documents can still prove their case by bringing in the records custodian for the creditor, but they can’t win just because they said so — unless the homeowner and then lawyer for the homeowner are sleeping.

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

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

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

Neil F Garfield, MBA, JD, 76, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
*
FREE REVIEW: Don’t wait, Act NOW!

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

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

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

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

But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 14 years or more. In addition, although currently rare, it can also result in your homestead being free and clear of any mortgage lien that you contested. (No Guarantee).

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

Please visit www.lendinglies.com for more information.

Filed under: foreclosure | Leave a comment »

The best practical time to challenge the pretender lender in any jurisdiction is when the homeowner receives a “notice” (usually unsigned) announcing that some company is now their servicer. That is a lie, and effective use of the Administrative Process provided by statute can stop them.

Later, the best practical time to challenge the pretender lender in nonjudicial states is when the lawyers file a Notice of Substitution of Trustee on the Deed of Trust.

The best practical time to challenge the pretender lender in judicial states is when the hoemowner receives a notice of default (also usually unsigned).

Practice note: The claimed “default” does not exist unless and until a creditor owns the underlying obligation and has been injured by non-payment. Without actual injury, there is no claim and no default. But he injury can be impied or even presumed in the absence of a challenge from the homeowner.

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The odds are against a successful appeal — except in clear-cut procedural irregularities. Gary Dubin and many other lawyers have won multiple appeals based on minutia. Any appeal that even smells like overturning the judgment of the trial court because you’re hoping that the appellate panel members would decide the case differently will crash and burn.

Filed under: foreclosure | Leave a comment »

1. The second requirement is usually completely ignored by the homeowner, the lawyers, and the judge. But it is still there. The possessor of the note, once that is established and confirmed by competent evidence, must allege and prove that it is authorized to enforce the note. By legal definition accepted in all jurisdictions, a holder is not a holder in due course even if they satisfy the two aforesaid requirements.

So here is an exchange with a contributor and reader. She says that “they say that Caliber is the holder, not PennyMac.”

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The trick here is using complexity to conceal the truth of the matter asserted, to wit: the matter asserted is that the homeowner owes money to the claimant because the claimant owns an unpaid account receivable due from the homeowner. Further, the matter asserted usually by implication is that the claimant suffered economic damage because the homeowner stopped paying the claimant.

None of that is true, but good lawyers can make it true if the homeowner or the lawyer for the homeowner is not well versed on evidence and the rules of civil procedure.

Again here is why pro se litigants lose even though they are morally and legally right — i.e., that there is no valid claim against them.

Filed under: foreclosure | 2 Comments »

homeowners do best when they focus not on winning, but on “not losing.”

Why you would use a declaration or affidavit from anyone:

Filed under: foreclosure | Leave a comment »

I am having a spirited exchange with a very experienced trial lawyer on the West Coast. We are discussing whether some declaration should be filed in a pending case where a Motion for Summary Judgment is pending. My answer is no, but a procedural objection should be raised on two grounds:

(1) that the mere contact from a lawyer representing a new party seeking to file a motion to intervene is reason enough to deny the motion for summary judgment and

(2) that the lawyer appears to be saying something but when you look closely she is not saying anything at all.

1. We will file” is not an assertion. It is not even a promise, and I have nothing to declare about that.
2. “Motion to intervene” merely states the title of a proposed motion that may or may not be filed. It is nota filing with the court so it means virtually nothing.
3. It does imply (create the inference) that SPS might have some economic interest in the outcome of the litigation (why else would any lawyer file a motion to intervene). It also admits or strongly implies that SPS is not yet a party to the action, directly or indirectly. However, if the lawyer for SPS believes that a Motion to Intervene is appropriate, she is representing that SPS is her client (probably not true) and that SPS has rights to be protected against one side, the other, or both. She doesn’t say.
4. She is also inserting something that is not exactly part of the case yet (because she has not intervened pursuant to a motion that describes the interest of her client, SPS). That  “something” is DBNTC. But she does not assert that DBNTC is a trustee. She only mentions that when naming the “whole client” — “Deutsche Bank National Trust Company, as Trustee, on behalf of the holders of the Impac Secured Assets Corp., Mortgage Pass-Through Certificates, Series 2006-3.”
   1. But here we go again. Does she represent SPS or DBNTC. Because DBNTC does not have any contact or relationship with the lawyer or her firm. And Neither DBNTC nor SPS has ever instructed the lawyer to do anything. Nor does SPS or DBNTC pay any invoices for legal fees.
   2. And here we go again: There is no mention of a trust — only a trustee.
   3. There is also no mention of beneficiaries but based upon prior conduct of lawyers purportedly naming the same parties they are NOT asserting but they ARE implying that the “Certificate holders” are beneficiaries of a trust.
   4. We are left with no reference to a trust that is managed or administered by DBNTC, and no mention of a trust account in which a specific asset (an obligation due from White) is held as an asset.
   5. And we are left with no reference to the foundation for even implying that the DBNTC is empowered to exercise representative or agent authority for certificate holders, nor the identity of the certificate holders.
   6. And, finally, we are left with no reference whatsoever to any exhibit or allegation asserting that the certificates are anything other than paper or worse, non-certificated “certificates” containing only data relating to the issuer and the buyer.

Filed under: foreclosure | 3 Comments »

Very few people have studied the use of expert testimony, and fewer still have understood it. Start with the basics:

1. An Expert is a person with knowledge beyond the scope of knowledge of the judge. So if you want someone accepted as an expert, you need to show that it is more likely than not that this witness will testify about something that the court concedes (formally or informally) it does not yet know.
2. An expert cannot give an expert opinion on conclusions of law by using the word “illegal” or “fraud” or other words that imply that a judge and jury have heard it and rendered a verdict. So the expert can testify that in their opinion the signature is inconsistent with other signatures by the same person; but the “expert” will not even be allowed to testify if they have no credentials, licensing, education, and long-term experience examining documents for law enforfement or other venues that are deemed credible.
3. An expert’s factual opinions will be given more weight if they have testified in other venues before with success.
4. An expert undermines their ownt estimony the moment they appear to be na advocate for the homeowner.

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While it is possible that a court might accept opinion testimony and it might be given weight in deliberations, it seems unlikely that will happen very often. Judges think they know all about foreclosures. They see no need to delay the proceeding by listening to some witnesses give opinions about things the judge believes they know better than the witness.

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As with others who have accumulated a lot of knowledge, the apparent lack of credentials would undermine your status as an expert who could testify to matters beyond the knowledge of the court. So the setup by the lawyer becomes extremely important (vital) to getting anything contained in the expert’s report into evidence.

Filed under: foreclosure | 2 Comments »

Here is a simple tip: if the same company is named in other similar actions and that company did not receive the proceeds of the repossession or foreclosure, then the claim and the process was faked through and through. Hint: ask for proof or even a statmeent under oath that the company named as “creditor” is inteded and expected to receive money from the successful outcome of the repo or foreclosure.

In plain language, if your car or home was sold and the money did not go to a creditor who reduced your “debt”, then someone got a windfall. 99% of all installment payment claims result in that windfall.

The fact that the injured “creditor” has not made a complaint is NOT evidence that the debt exsts, that the debt was owed to the Plaintiff or beneficiary, or that that the “servicer” was actually a “servicer” for an injured “creditor.”

MESSAGE TO EVERYONE —-  JUDGES, LAWYERS, HOEMOWNERS, CONSUMERS AND DEBT TO COLLECTORS: STOP PRETENDING YOU KNOW WHEN YOU DON’T

The fact that you receive a letter from someone does not mean that the sender was identified in the “letterhead.” Nor that the sender had any legal authority to send it. And the fact that the letter proclaims that authority adds nothing to the legal authority of the sender. I proclaim I am the king of the world right here in black and white.

It isn’t true, but I still proclaim it, and there is nothing in the rules of civil procedure that prevents me from filing a complaint in which I am identified as the King.

The current pervasive erroneous presumption is that the receipt of a letter containing false information and making false claims about everything in it is sufficient to move the burden of proof and burden of persuasion to the homeowner or consumer.

This is a game and it isn’t pretty. The game prize is a transfer of wealth — which is masqueraded as repossessions and foreclosures. The money never goes where you think it is going.

• Regardless of what company is named as “servicer,” if it is not receiving any payment that you have ever directed to them or any predecessor company that was designated as “Servicer” (most likely by a FINTECH company operating under license, and acting for an investment bank that does NOT own any indebtedness owed by you to anyone. The big “tell” is that their “Payment History” lacks any reference to disbursements. No REAL Payment History could exclude any debit or any credit and call itself complete. 
• That means the Payment History is not the loan account. It is merely a report based on data received from third parties which makes it inadmissible hearsay.
• If a company was actually performing the functions of a “servicer” as is commonly understood, it would be receiving checks or electronic deposits into an account it owned and controlled.
  • It would then process the receipt by having its own employees or outside contractors enter data based upon the original event of receiving a check or receiving electronic notice of a deposit into the servicer-owned account.
  • It would then disburse the funds to the creditor for whom it is working.
  • Evidence of the balance would show on the accounting ledger of the creditor, not the servicer. The asset receivable on the accounting ledger of the creditor would show all credits (mostly receipts of payments from servicer attributed to that transaction account with the homeowner and all debits consisting of disbursements to investors or to the operating account of the  “successor lender” (the creditor).
  • The “Payment History” is proffered by a lawyer who purportedly represents a creditor (with whom he or she has most likely never had any contact or contract) and attested to by robowitnesses selected for their lack of knowledge or training.
    • Payment History may be accurate or inaccurate — but it is NEVER COMPLETE. Except by unintended waive by the homeowner, it is virtually never admissible evidence because it relies on input by third parties who actually received and processed payments from the homeowner. This usually cannot be proven directly by the homeowner whom I always counsel not to even try.
    • • [Because to prove it, you would need information in the and of third parties who are NEVER going to give it to you. So don’t waste your time on that.
      • *
      • Put your time into showing the court that the position refuses to answer and that, therefore, you are entitled to draw and apply inferences from the refusal to comply with those demands and the noncompliance with the rules of civil procedure.
      • *
      • And possibly produce a legal presumption that ((a) defeat the presumptions from the fake documentation presented thus far and (b) force the opposing lawyer to call witnesses and produce documentation in which the named “creditor” affirms it owns the unpaid loan account due from the homeowner and that its records custodian certifies that he/she possesses a copy or original fo the unpaid loan account starting with its creation and reflecting all debits and credits up to the time of the hearing. ]
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    • Unless those third parties are able to testify in court that they were performing their tasks under contract or at the behest and on behalf of the company named as servicer, the data and the report are hearsay and barred from evidence upon proper and timely objection. (It doesn’t happen automatically).
      • But only those companies can produce a witness and documents in court.
      • AND none of this applies if the homeowner fails to object.
      • *
    • Well-drafted and well-timed discovery and other strategies will quickly reveal that the “servicer” has no authority and does not perform any of the functions that are commonly ascribed to a company that is being called a “servicer” by anyone.
    • Further inquiry will reveal the Servicing Agreement which is different from the Pooling and Servicing Agreement that only governs the Master Servicer.
    • The same is true with respect to the Trust agreement allegedly governing the actions of the named Trustee in an apparent REMIC trust. Those agreements are NOT revealed except under exigent circumstances and instead, the lawyers proffer a Pooling and Servicing Agreement which always refers to future events that might happen, rather than any past events that did happen.
      • This last point is highly important because the PSA is just a mask because nobody claims to own the alleged underlying obligation(s) from the homeowner (s). In the absence of such a claim and proof thereof, nobody can be said to be an agent or servicer for a creditor. 

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PRACTICE HINT: USING THE ABOVE PARAGRAPHS, DEVELOP YOUR DISCOVERY DEMANDS. Ask only things that MUST BE TRUE if the claim is real and valid. The answer will always be, “We don’t need to answer that because we hold the note.” But they are nonetheless required to answer because if they are suing on a debt, they must show the debt (loan account) — not merely evidence of the debt (promissory note).

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

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

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

Neil F Garfield, MBA, JD, 76, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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FREE REVIEW: Don’t wait, Act NOW!

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

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

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

But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 14 years or more. In addition, although currently rare, it can also result in your homestead being free and clear of any mortgage lien that you contested. (No Guarantee).

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

Please visit www.lendinglies.com for more information.

Filed under: foreclosure | 2 Comments »

Court procedure is a long and tedious process during which the parties make their points and counterpoints. If you don’t make the point evident, you lose. If you don’t make the counterpoint, you lose. If you lose, the opposition wins. This is about the rules, not justice or the pursuit of truth.

Recently a client asked me to comment on whether to file an adversary complaint in a Chapter 13 bankruptcy along with eh schedules attached to then petition or to wait until the opposition makes their move. Here is what I answered.

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

There are arguments both ways. You are required to name anyone making a monetary claim against you, so your schedules already state the case. But his email also makes sense. I would file ASAP because I like to take the lead in the case narrative.

Filed under: foreclosure | Leave a comment »

see xhttps://www.wsj.com/articles/coinbase-armed-for-legal-clash-over-how-crypto-is-regulated-dc08f85b?page=1

WHO CAN WE CHEAT?

The predominant business formula by which trillions of dollars are transferred from ordinary people to people without a conscience is based on a lack of disclosure and outright lying.

The problem for such players is that it is technically illegal to cheat and lie. But just because something is illegal doesn’t make it impossible. And that is where crypto and certificates (dubbed “mortgage-backed securities”) come into play.

You can rob a dozen banks and never go to prison if no law enforcement agency wants to catch you, charge you and convict you.

And you can remove law enforcement if you ignore it, as in cypto markets, or get laws passed that say that your kind of game cannot be regulated as in MBS certificates. Crypto issuers are saying, “don’t stop ignoring us.” Investment banks are basically saying the same thing.

Yes Martha, they are both securities and, therefore, subject to regulation under a variety of current laws that the SEC, FTC, and CFPB ought to be enforcing with great vigor.

The failure of such agencies to act is one of the ways the economic board was tilted far out of alignment against the foundation of the system —- consumer spending. By defrauding consumers, debt rises, and wealth gets transferred. It is a going-out-of-business strategy.

Anyone who issues a “thing” that is based on passive income or profit is issuing a security. The regulation that is being fought is the power of government to make sure you are not lying when you issue your “thing.”

Right now, crypto is claiming exemption on the grounds that it would go out of business if they were required to tell the truth.

And Wall Street investment banks have convinced almost everyone that they too would go out of business if they were subject to enforcement of laws.

One of the great memes of the last 10+  years is the “big lie.” In this case, we have the big lie combined with the “big bluff.” Presidents Bush, Obama, Trump, and Biden have been convinced to let financial players continue lying about the “things” they create in transactions with investors and homeowners.

Wall Street overcame all obvious objections by the simple threat that if they were held accountable or were subject to regulation, they would pull the plug on the rest of the economy, and we would be plunged into economic and social chaos. We have all heard such threats before, and they were never true.

There is no evidence that any part of the threat was based on a foundation of fact or truth any more than the lies they were telling investors and homeowners. They were just telling a new whopper to the government.

The fallback position for crypto issuers and the underwriting (issuance) of so-called “derivatives” (MBS) is that regulation is socialism. Go to any dictionary to see how it is an absolutely established fact that regulation is not socialism — it is a basic component of any economic system.

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

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

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

Neil F Garfield, MBA, JD, 76, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
*
FREE REVIEW: Don’t wait, Act NOW!

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

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

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

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

But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 14 years or more. In addition, although currently rare, it can also result in your homestead being free and clear of any mortgage lien that you contested. (No Guarantee).

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

Please visit www.lendinglies.com for more information.

Filed under: foreclosure | Leave a comment »

The CFPB release says “It is illegal for debt collectors to sue or threaten to sue to collect debts past the statute of limitations.”

The more subtle message is that Wall Street needs to stop making claims and threats on claims that either never existed or don’t exist anymore. And that is not just about the statute of imtiations. I would go further and say that anyone who uses that approach as a business model belongs in prison.

Consumers don’t know how legal debts are created, managed, serviced, or extinguished. They typically rely entirely on the statements, correspondence, and notes sent to them — even if those notices come on unsigned paper under the letterhead of business names with which they have never done business.

So the CFPB is catching up with an aspect of this and a fine nuance regarding the legal right to make claims or threaten action to collect an alleged debt. This time it is about Zombie mortgages. The success of the business plan depends entirely on convincing the consumer that his/her transaction was a loan, that an obligation was created, and that the instructions in the letter, statement or notice are authentic communications from a legally recognized creditor. In other words, the business plan requires lying to the consumer and convincing them to pay money when none is due, or there is no right to demand the money.

This is like a trip into the twilight zone.

The bottom line is that Wall Street investment banks are using sham conduit intermediaries to “sell” rights to collect on debts. The story is that they have written off the debt and now wish to make the deduction from the tax returns and financial statements. But the truth is stranger. Wall Street indeed sold those rights of collection, but it is not true that they had anything to sell. The CFPB has been inching toward this conclusion for years. It is about time for the SEC and FTC to also jump on board.

WHAT IS A ZOMBIE MORTGAGE?

First, it is not a mortgage, even though there is a mortgage lien recorded in the chain of title. It is not a mortgage because it secures the performance of nothing, and nobody wants to have anything to do with it for various reasons that make it legally toxic to own or even manage.

Second, it has aged to the point where the statute of limitations bars any claim on it. Anyone who expected any payment relating to any transaction with the subject homeowner has been paid off long ago. So there is no debt or loan account, and, therefore, there is no right to enforce it even if someone has a bill of sale. The CFPB noticed that no Bill of Sale ever includes the most standard and essential clause — a warranty of ownership by the seller. So Wall Street created the illusion of “assets” out of thin air and then had the temerity to describe it as “asset-backed.”

This brings us closer to quieting title and forcing the removal of liens that do not secure any obligation.

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

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

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

Neil F Garfield, MBA, JD, 76, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
*
FREE REVIEW: Don’t wait, Act NOW!

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

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

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

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

But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 14 years or more. In addition, although currently rare, it can also result in your homestead being free and clear of any mortgage lien that you contested. (No Guarantee).

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

Please visit www.lendinglies.com for more information.

Filed under: foreclosure | 2 Comments »

The first question is, “if it wasn’t a loan, then what is it?” Lawyers and homeowners get hooked on this question because they think it is up to them to answer it. But the first rule of procedure and due process is that if you have a claim, then you need to describe it. If it is left to your opponent to speculate about the nature of the claim, then all existing US law requires dismissal of the case, perhaps with leave to amend.

And the corollary is if it wasn’t (or at least is not currently) a loan, how do we fix the transaction so that it reflects the duties and obligations of a fair transaction (assuming it can’t simply be rescinded).

The answer is reformation, but this is a blade that the investment banks are very careful to step away from. The court takes in evidence about the entire transaction and then decides what the contract would look like if all those factors were known at the relevant time(s).

Since the late 1990s this means the court would require an accounting for the entire money trail, including the sale of securities, without which there would have been no loan to the investment bank, without which there would have been no transaction offered or sold to the homeowner.

What I find so interesting is that the issue of reformation of the debt, note, or mortgage lien arises so frequently between the lawyer, purportedly representing a creditor, and a party other than the owner of the Homestead. Reformation is the only legal and fair way out of a situation created entirely by Wall Street. This is widely known in legal circles and especially by lawyers who represent players in securitization schemes and players in foreclosure schemes.

(1) given the universal absence of a loan account receivable and, therefore, the absence of an owner of the nonexistent loan account receivable, there is no cause of action or defense that can be raised because of lack of standing and lack of a justiciable issue.

a. The simple counterargument is that the present party named as claimant/creditor has paid for the underlying obligation, note or lien (and has both alleged that and proven that when the allegations are contested by the homeowner).

(2) the only way out of this pickle is to either (a) dismiss the current proceedings and file a new lawsuit or pleading that truly is filed by a lawyer on behalf of a client that is a creditor or (b) to file an action in reformation — admitting that the transaction was not a loan but pleading reasons why the money is still owed.

(3) in most cases, the opportunity to file a real pleading is barred by the statute of limitations. After spending years pretending to be lenders and successor lenders, they ran their own statutes. No amendment is possible without asserting actual ownership, rather than presumed ownership, of the alleged underlying obligation (if it even exists).

Here is an example where this is relevant, but the lesson carries over to virtually all activities undertaken by players in securitization and players in false foreclosure claims.

Filed under: foreclosure | 3 Comments »

“We already see how AI tools can turbocharge fraud and automate discrimination, and we won’t hesitate to use the full scope of our legal authorities to protect Americans from these threats,” said FTC Chair Lina M. Khan. “Technological advances can deliver critical innovation—but claims of innovation must not be cover for lawbreaking. There is no AI exemption to the laws on the books, and the FTC will vigorously enforce the law to combat unfair or deceptive practices or unfair methods of competition.”

Wall Street has been using algorithms for selling, processing, and reporting on transactions with homeowners for 25 years. I investigated this and reported on it starting in 2006. Virtually every letter, statement, or notice homeowners receive is composed and sent by machines.

When the time comes that this joint statement of federal agencies is put into action, Investment banks will (a) be revealed as the originators in all homeowner transactions and (b) be revealed as violating consumer protection laws as their main business model.

The main and most important effect of this paradigm shift at Federal agencies is that the defense (plausible deniability) that the “machine did it” is being stripped away. Individual liability under criminal and civil laws will apply. Machines don’t make decisions. People make decisions. Machines carry out those human decisions.

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

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

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

Neil F Garfield, MBA, JD, 76, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
*
FREE REVIEW: Don’t wait, Act NOW!

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

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

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

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

But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 14 years or more. In addition, although currently rare, it can also result in your homestead being free and clear of any mortgage lien that you contested. (No Guarantee).

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

Please visit www.lendinglies.com for more information.

Filed under: foreclosure | 1 Comment »

Whenever anyone refers to your transaction as a loan, you should be objecting at the earliest possible moment (or else it is waived), and you should be moving to strike the phrase from the court record. But you need to do so properly.

Filed under: foreclosure | 2 Comments »

People familiar with my victories in court frequently ask for a list of generic questions that they hope will work in every case. Lay people are not rained to think within the context fo the rules of civil procedure or motions required to force the opposing side to comply with those rules.

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There are plenty of POSSIBLE questions and plenty of ways to ask them. But there is no list that is one size fits all. It MUST be tailored to the specific case. Some of the questions are obvious from my prior correspondence.

But to be clear, there is no list of questions unless you are attempting to establish the merits of a particular defense; and you must be asking those questions to someone who has a legal obligation to answer. 

Filed under: foreclosure | Leave a comment »

The mega banks are reporting higher profits that were most likely created years ago and stuffed into offshore repositories in off balance sheet transctions. From 1998 to 2008, they siphoned trillions of  dollars out of the US economy using worthelss and faslely represented “Mortgage-backed bonds.”

How is it that both manufacturing and services declined over the last 40 years while the banks reported gains from the creation, issuance, sale, and trading of securities related to the US eonomy?

How is it that the financial sector accounted for about 16% of US GDP in 1970’s but now accounts for nearly 50%?

Does any of this make sense? Why is the Fed suporting a flasely portrayed financial sector? Can we ever make a landing without returning to fundamental economic values?

https://www.nytimes.com/2023/04/14/business/jpmorgan-citi-wells-fargo-earnings.html?smid=nytcore-ios-share&referringSource=articleShare
Biggest U.S. Banks Report Bumper Profits Amid Industry Turmoil

Filed under: foreclosure | 2 Comments »

Filed under: foreclosure | 1 Comment »