Tonight! Open Mike! Live Q&A with Neil Garfield 6PM EST 3PM PST

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Tonight’s Show Hosted by Neil Garfield, Esq.

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

Follow voice instructions when you dial in or connect via computer. You will be recognized in the order of your questions.
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Around one month from now, most moratoriums on foreclosures will expire, unless they are again extended. That means that hundreds of thousands, perhaps millions of foreclosures will be filed or completed over the next year. And just like the 2008 meltdown, the securities brokerage firms that call themselves “investment banks” will be swarming like maggots over the carcass of millions of lives.
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  • We start with a simple premise: money received by homeowners was an inducement to enter into a concealed transaction in which the homeowner was not intended to receive any benefits.
  • YOU ASKED FOR A LOAN BUT NEVER RECEIVED A LOAN.
  • It was not part of a loan agreement because the money was received from players who had no intention of being lenders subject to statute and who had no intention of maintaining a loan account receivable against which payments could be received and posted.
  • DON’T GO DOWN THE RABBIT HOLE!
  • The attempt to get payment from homeowners is a concealed attempt to zero out the consideration paid to the homeowner for the concealed transaction.
  • In short, the homeowner was attempting to purchase a loan with the note and mortgage but didn’t get it. And the money paid to the homeowner was only temporary consideration for a concealed transaction in which the players received all the benefit and the homeowner took all the concealed risks.
  • THE GOAL IN LITIGATION IS TO BAR INTRODUCTION OF EVIDENCE AGAISNT YOU BY AGGRESSIVELY  PURSUING THE DEFENSE NARRATIVE THAT THE OBGLIGATION  DOES NOT CURRENTLY EXIST ON THE BOOKS OF ANY CREDITOR. 
And just like the 2008 crash, the impact of the new wave of foreclosures and evictions based on such foreclosures will be felt for years to come. The full impact of the COVID pandemic won’t be known for a long time. It could result in many more people falling into the grasp of greedy Wall Street bankers.
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So my message is simple: get prepared and stay prepared. They will try to steer you into foreclosure because every dollar they receive from the forced sale of your property is going to bonuses and profits. Get rid of any thought you have that the foreclosure mills are filing foreclosures on behalf of lenders.
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Tonight in a different format from our regular programming, I am opening the floor to questions and answers.  Please don’t use this as an opportunity to lecture about conspiracies. The purpose of this program is to allow real people to ask real questions and get real answers — subject to review and advice from local counsel.
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Here are some samples of the type of questions you could ask.
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  • Does my obligation still exist?
  • Are you saying that my obligation no longer exists or just that it cannot be enforced?
  • What do the foreclosure mill lawyers need to prove?
  • How can I stop the servicer from testifying or introducing evidence?
  • What do I need to prove?
  • I’ve been in litigation for years. How can I put an end to this?
  • I have received a notice of delinquency from a company that has presented itself as a servicer. What do I do next?
  • I have been served with a notice of default and notice of sale from a company claiming to be the new trustee on my deed of trust. What do I do now?
  • I have been served with a summons and complaint for foreclosure filed by lawyers who say they are representing a trustee for some series of certificates. What is my next move?
  • A sale has already been conducted and now somebody is trying to evict me. What can I do?
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Neil F Garfield, MBA, JD, 73, 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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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 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.
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Please visit www.lendinglies.com for more information.

CFPB Settlement With Nationwide dba Mr. Cooper Betrays Homeowners

These are “friendly” settlements. Mr. Cooper, lied and cheated their way into multiple foreclosures. The answer we are told is not to do anything about the illegal foreclosures. The answer is to pay a few cents on each dollar for the extensive damages caused by wrongful, illegal fabricated foreclosures.

But the main rationalization for such actions that only compound the wrongs is the continuing erroneous belief that these loans exist, that there are unpaid debts, that here are deficiencies and default.

Both the problem and the solution I have been the same since I first noticed what they were doing in 2006.

The problem is that they are not really lending money or acquiring loans that need to be repaid.

The solution is to call their bluff when they try to get the money back that they paid to homeowners in exchange for starting a series of transactions in which unregulated securities were sold, on an infinite basis, to investors who were betting on future announcements of data performance by the issuer doing business under the name of a legally nonexistent trust because nothing had actually been entrusted to the named trustee of the named trust.

So these settlements for pennies on the dollar or part of a massive cover-up. They reinforce the myth that the debts exist and that there is a creditor who owns the debt. In fact, the process referred to as “securitization” is a process of liquidating any entry on the ledger of any company on which a receivable had appeared.

Thus the assertion of “authority” is false as to the “servicer,” the “trust” and the trustee. It is also false as to the bank names used in litigation or notices of sale. Mr. Cooper, in my opinion, is guilty of criminal fraud. The CFPB is guilty of grandstanding instead of reversing illegal foreclosures.

To read the complaint click here: https://files.consumerfinance.gov/f/documents/cfpb_nationstar-mortgage-llc-dba-mr-cooper_complaint_2020-12.pdf.

To read the proposed stipulated judgment and order click here: https://files.consumerfinance.gov/f/documents/cfpb_nationstar-mortgage-llc-dba-mr-cooper_stipulated-final-judgment-and-order_2020-12.pdf.

CFPB Announcement

FOR IMMEDIATE RELEASE:
December 7, 2020

MEDIA CONTACT:
Office of Communications
Tel: (202) 435-7170

CONSUMER FINANCIAL PROTECTION BUREAU AND MULTIPLE STATES ENTER INTO SETTLEMENT WITH NATIONSTAR MORTGAGE, LLC FOR UNLAWFUL SERVICING PRACTICES

WASHINGTON, D.C. — Today the Consumer Financial Protection Bureau (Bureau) filed a complaint and proposed stipulated judgment and order against Nationstar Mortgage, LLC, which does business as Mr. Cooper (Nationstar).  The Bureau’s action is part of a coordinated effort between the Bureau, a multistate group of state attorneys general, and state bank regulators.  The Bureau alleges that Nationstar violated multiple Federal consumer financial laws, causing substantial harm to the borrowers whose mortgage loans it serviced, including distressed homeowners.  Nationstar is one of the nation’s largest mortgage servicers and the largest non-bank mortgage servicer in the United States.  The proposed judgment and order, if entered by the court, would require Nationstar to pay approximately $73 million in redress to more than 40,000 harmed borrowers.  It would also require Nationstar to pay a $1.5 million civil penalty to the Bureau.  Attorneys general from all 50 states and the District of Columbia and bank regulators from 53 jurisdictions covering 48 states and Puerto Rico, the Virgin Islands, and the District of Columbia have also settled with Nationstar today and their settlements are reflected in separate actions, concurrently filed in the United States District Court for the District of Columbia.

“Mortgage servicers are entrusted with handling significant financial transactions for millions of Americans, including struggling homeowners.  Nationstar broke that trust by engaging in unfair and deceptive practices prohibited by the Consumer Financial Protection Act of 2010, as well as violations of the Real Estate Settlement Procedures Act and the Homeowner’s Protection Act,” said CFPB Director Kathleen L. Kraninger.  “Today’s action is the culmination of a multi-year effort working with our state partners to investigate Nationstar’s failings, which resulted in substantial consumer harm.  We had a strong partnership with our state counterparts in this case and I thank them for all their support in this case.”

“This settlement demonstrates the crucial role of state financial services regulators in ensuring that homeowners are protected as they obtain and pay down their mortgages—especially homeowners who may be struggling with making their payments,” said Illinois Department of Financial and Professional Regulation Secretary Deborah Hagan.  “This resolution demonstrates that a commitment to government coordination provides a path to efficient, effective, and comprehensive outcomes for both consumers and for Mr. Cooper, who will be held to the highest operational standards as it continues to provide mortgage services across the nation.”

The Bureau’s and States’ proposed judgments and orders, if entered by the court, will yield nearly $85 million in recoveries for consumers to date and over $6 million more in fees and penalties.  They are also part of a larger government effort, which also includes assistance from the Special Inspector General for the Troubled Asset Relief Program (SIGTARP) and the United States Trustee Program, to address Nationstar’s alleged unlawful mortgage loan servicing practices.

In its complaint, filed in federal district court in the District of Columbia, the Bureau alleges that Nationstar engaged in unfair and deceptive acts and practices in violation of the Consumer Financial Protection Act of 2010, violated the Real Estate Settlement Procedures Act (RESPA), and violated the Homeowner’s Protection Act of 1998 (HPA).  Specifically, the Bureau alleges that between January 2012 and January 1, 2016, in numerous instances Nationstar failed to identify loans on its systems that had pending loss-mitigation applications or trial-modification plans, and as a result failed to honor borrowers’ loan modification agreements.  Nationstar allegedly foreclosed on borrowers to whom it had promised it would not foreclose while their loss mitigation applications were pending.  Nationstar also allegedly improperly increased borrowers’ permanent, modified monthly loan payments, mispresented to borrowers when they would be eligible to have their private mortgage insurance premiums canceled, and failed to timely remove private mortgage insurance from borrowers’ accounts.  Nationstar allegedly failed to timely disburse borrowers’ tax payments from their escrow accounts and failed to properly conduct escrow analyses for borrowers during their Chapter 13 bankruptcy proceedings.

If entered by the court, Nationstar would be required to immediately set aside about $15.6 million to pay borrowers it has not remediated prior to the order’s effective date and to certify that it has already paid approximately $57.5 million in redress to other borrowers affected by the conduct alleged in the complaint.  The stipulated judgment and order would also require Nationstar, among other things, to enhance its policies and processes including with respect to handling consumer complaints and disputes, conducting escrow analyses on borrowers’ accounts, transferring information during servicing transfers, offering loss mitigation, and terminating borrowers’ private mortgage insurance.

To read the complaint click here: https://files.consumerfinance.gov/f/documents/cfpb_nationstar-mortgage-llc-dba-mr-cooper_complaint_2020-12.pdf.

To read the proposed stipulated judgement and order click here: https://files.consumerfinance.gov/f/documents/cfpb_nationstar-mortgage-llc-dba-mr-cooper_stipulated-final-judgment-and-order_2020-12.pdf.

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The Consumer Financial Protection Bureau is a 21st century agency that helps consumer finance markets work by regularly identifying and addressing outdated, unnecessary, or unduly burdensome regulations, by making rules more effective, by consistently enforcing federal consumer financial law, and by empowering consumers to take more control over their economic lives.  For more information, visit consumerfinance.gov.

OK Georgians, Here is Your Chance. Don’t Vote for the person backed by the big banks.

If you want to see a change (i.e., return to the rule of law) then you should not be voting for Perdue in the Georgia Senate race. You should be voting for Ossoff. Perdue sits on the banking committee and has consistently been the voice of “deregulation” of banks like the repeal of Glass Steagall which enabled Wall Street to claim securitization of debt even though no residential loan was actually sold or securitized. If you leave Perdue in office he will continue to use his office for his own benefit and to the detriment of everyday Americans.

Anyone who has followed this blog for years knows that I don’t typically enter the political arena. This is because my experience is that people from all different ideological persuasions all have the same problem when it comes to housing, borrowing, Foreclosure and eviction.

But I have continually repeated my suggestion that people who are running for office should be running against the major banks, who are responsible for the 2008 crash, and who are currently engineering the next crash (stay tuned for 2021).

And I have repeatedly endorsed voting for anyone who is running against the banks. The banks have been siphoning off trillions of dollars from the US economy for over 20 years. On some level, I think nearly everyone understands that they have been screwed by the banks, even if they don’t completely understand how it was done.

The level of Mayhem generated by the banks is virtually beyond human comprehension. But as a reference point for the scope of their illegal activities, consider this: there is about 85 trillion in fiat currency worldwide. that is all the money there is. But the shadow banking market, which had zero in 1983, now is estimated by most analysts to be in excess of $1.4 quadrillion — more than 15 times all the money in the world.

That makes the banks who make a market in this “nominal ” stuff (but treated as “cash equivalents”) in a position far beyond the ability of anyone who wants to regulate them or otherwise keep their abuses in check. And the fact that much of the money that was siphoned out of the US economy is sitting in various off-shore locations makes control over the banks virtually impossible across political borders.

With no control, the banks will not just do the same, they will escalate because that is what they do. It is already apparent that the availability of credit has lured workers into allowing their wages to be replaced by debt. At this point, the Wall Street banks are in a position where they could and no doubt will find ways to present incentives for US consumers to take on more “debt” that in actuality is a wage for services rendered. The service rendered by consumers is issuing the necessary paperwork to establish a reference data point against which investors can place bets. The revenue from selling such bets is literally infinite.

Meanwhile, the consumer who was lured into such transactions without knowledge of the real transaction is stuck with overpriced assets and is lured into strategies that create the illusion of delinquency, default, judgment, and sale of the property encumbered by “liens”.

All of this happens because consumers believe they are taking on loans went in fact they have become partners in a business scheme in which consumers receive none of the profits and assume all of the risk of loss.

If you want to see a change (i.e., return to the rule of law) then you should not be voting for Perdue in the Georgia Senate race. You should be voting for Ossoff. Perdue sits on the banking committee and has consistently been the voice of “deregulation” of banks like the repeal of Glass Steagall which enabled Wall Street to claim securitization of debt even though no residential loan was actually sold or securitized. If you leave Perdue in office he will continue to use his office for his own benefit and to the detriment of everyday Americans.

see Perdue, who sits on the Senate Banking Committee and has long been an industry ally, backing lighter banking regulations, is seeking re-election against Democratic challenger Jon Ossoff.

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Neil F Garfield, MBA, JD, 73, 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.

Another satisfied homeowner

“Not everybody needs a lawyer. I didn’t. I had one who sucked. It’s better to have no lawyer than one who doesn’t want to fight for you. I also read your blog. I won. Thank you.”

The case for reformation and damages for past, current and future attempts at foreclosure of alleged loans that were falsely claimed to have been securitized.

A lot of people are asking me what I am up to counter this reign of fraud and terror by the investment banks. Here is a sneak peek at some recent work I am doing on a rough draft of what might turn out to be a class action. Comments from lawyers are invited.
This may be a case of first impression. The fact pattern alleged in this petition is unique although the application of law is not; however the outcome of applying the law and the facts as presented in this petition contrasts with virtually all forced sales of residential property in which the foundation for the claim lies in false assertions, implications, or allegations of securitization of debt.
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In plain language all such assertions were false and all evidence of default was equally false. Such sales and the orders and judgments that permitted them were and remain void for lack of personal and subject matter jurisdiction. Such court actions are ultra vires.
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These illegal acts do not ripen with time. They are still void. It is the same with any wild deed. The money proceeds from such sales were paid to parties who neither intended nor received the money to reduce any debt owed by the homeowner(s). This was a for profit venture that succeeded by deceit, camouflage, manipulation and fabrication of documents, and false testimony.
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An order requiring an accounting for payments from the proceeds of the foreclosure sale will amply demonstrate and corroborate the assertions made herein.
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The courts have permitted this false securitization venture and false foreclosure venture to continue under the erroneous belief that the proceeds of foreclosure sales would eventually find their way into the hands of someone who had a loss arising from the failure or refusal of homeowners to make scheduled payments in accordance with a promissory note that was executed at the time of the closing of the transaction with the homeowners. This assumption, as set forth in this petition, was and remains completely and utterly false.
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As set forth in this Petition, neither the debt nor the owner of any debt owed by the homeowner existed at the time of the foreclosure. The filing of such foreclosures was a malicious attempt to cover up a fraudulent scheme that was part direct fraud on investors and homeowners, and part Ponzi scheme.
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The goal of foreclosure was (a) to perpetuate the illusion of an existing established loan account receivable on the books and records of a valid legal creditor and (b) to generate funds for the foreclosure players including but not limited to some of the securitization players. In effect, each such foreclosure was a bonus lawsuit — i.e., where the proceeds were used to pay bonuses and other compensation to people and companies who assisted in the scheme.
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Like other institutionalized practices in this country’s history that were eventually revoked and abandoned as abhorrent to simple notions of decency, law, justice and equity, the time has come for the courts to exercise their independence from executive policy and to apply the laws as they have existed for hundreds of years.
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The time has come for the courts to stop foreclosures that are entirely devoted to generating revenue arising from fraud, deceit, and active concealment that exists up to and including the date of the writing of this brief.
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To put it another way, the fact that a homeowner stopped making scheduled payments is not proof or even evidence that the prior history of payments were due or paid to anyone entitled to receive them. Anotehr roder requriing ana ccounting for moneyr eceived and paid by intermediary parties claiming to be servicers will reveal that they entierh received nor had access to any payments from homeowners nor did they forward any money to investors (i.e., the parties whom the courts and most people believe are getting the money from voluntary and involuntary payments from homeowners).
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And the fact that the homeowner received money is not necessarily proof that a loan agreement was created. As described below, the payment of money to the homeowner was in fact intended to be an inducement to the homeowner to become party to a fictional securitizations scheme about which the homeowner knew, and could know, nothing at all.
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The attempt to retrieve the money paid to the homeowner is based upon a plan of reducing the consideration paid the homeowner to less than zero thus nullifying even the quasi contract that might be construed to exist. The homeowner, without knowing it, was paying for the privilege of the securitization players to generate revenue geometrically larger than the amount of the initial payment to the homeowner — while excluding the homeowner from any knoweldge or benefits from the scheme.
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All the benefits of the real transaction flowed to the securitization and foreclosure players while the homeowner lost his home, his lifestyle, peaceful enjoyment of his home, the benefit of the bargain he intended and the loss of his largest investment.
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All assumptions and presumptions to the contrary are completely wrong, although the undersigned counsel concedes that current procedural law requires the homeowner to raise such issue or else waive them — as long as the issues were known or could have been known. But as Alan Greenspan admitted after participating in the analysis of the “securitization scheme” along with over 100 Phd’s from the Federal Reserve, the scheme was impenetrable even to them.
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The homeowner in this action has only learned of the issues raised in this petition within the past few months and arising out of intensive legal analysis and securities analysis that are beyond the scope of knowledge of laymen and beyond the scope of knowledge or understanding of the usual robed individual who sits on the bench. As a whole there is complete agreement that if there is no debt there can be no conveyance of the debt or any right to enforce it.
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Having allowed foreclosure anyway, the court is tasked with the obligation to right the obvious wrong in a court of equity — as all foreclosures are said to be derived.
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Undersigned counsel also concedes that it is possible that the (note) might survive and may even be secured if the transaction were reformed to reflect the true nature of the transaction — a securities scheme that was concealed under the labels and accoutrements of a loan transaction in which there would be no lender nor any loan account receivable nor anyone of substance to answer for violations of lending and securities laws.
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The court must consider the reason why a payment was made to the homeowner and if those reasons were disclosed to the homeowner (bringing into question whether there was a meeting of the minds to form any contract). If no such disclosure was made, the the court must decide whether there exists any enforceable contract . If there is no enforceable contract the court must either rescind or reform the transaction as it played out in the real world.
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The court must consider whether the homeowner is entitled to equitable relief for entering into a contract based upon terms and conditions that were entirely actively concealed and hence unknown to the homeowner for the most part up to and including the date of this petition drafted by one of the few people in the country who understands securitization in general and securitization of debt in particular.
In circumstances where there is a manifest injustice, cruelly applied, it is incumbent upon the court to exercise its rights to avoid the usual restrictions of time and procedure to allow justice to prevail.
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Neil F Garfield, MBA, JD, 73, 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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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. Inthe meanwhile you can order any of the following:
*
CLICK HERE 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.

After Complaints to AG and CFPB Follow UP!

If you are not going to follow up on complaints to your attorney general or the CFPB, then you shouldn’t have filed the complaint in the first place. If you are not going to follow up on demand for discovery, don’t bother filing them.

The simple truth is that they never answer the question. They simply use the opportunity to propagate the lie that a loan was securitized when in fact no sale of the loan ever occurred.

Most people and many lawyers fail to recognize a simple legal strategy that is available to them, to whit: that the failure to respond to simple basic questions about The ownership and existence of the underlying obligation open the door for a clear win for the homeowner.

 

Your opposition is simply following the usual playbook. They are missed directing your question. And you should point that out to the AG office or CFPB after you file the complaint.

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The basic thrust of your question is the identification of the creditor who maintains an account receivable for the underlying obligation, and whether the Obligation still exists.
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Their answer Is that the word salad that they are using to label a virtual creditor (if it exists as a legal entity), is the note holder. You were not asking that. And if you did ask that question you would still be asking the same question — how did they become the “holder.”
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Remember that a holder is someone in possession of the note with the right to enforce it. What everyone seems to forget is to ask the question of how the party in possession of the note received the right to enforce (which can only be granted by the party who owns the obligation or who represents someone who owns the obligation).
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And remember nobody gets to own an obligation just because they say so. In order to own an obligation, a party must have entered into a legally recognizable transaction in which they purchased it for value pursuant to Article 9 §203 UCC as adopted by all 50 states. All states also recognize that a purported conveyance of an interest in a mortgage without a conveyance of ownership in the underlying obligation is a legal nullity. 
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Most states allow a rebuttable presumption arising from the possession of the note. The legal fiction adopted in most states is that if you have the note in your possession, or at least if you claim to have a note in your possession, that there must’ve been a delivery of the physical note along with the authority to enforce it.
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Homeowners who fail to rebut this presumption lose their case and their home.
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Homeowners who fail to understand legal procedure do not understand that the inability of the opposition to provide legally required answered to the basic questions about existence and ownership of the underlying obligation can easily be used as the basis to rebut that presumption.
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At the end of that claimed transaction, the purchasing party must claim ownership. If it says it is the owner of the obligation, then it must have entries on its accounting ledgers and banking statements that show payment of value for the underlying debt and the establishment of a loan account receivable.
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It is possible that the entire Wall Street strategy has been based upon the gamble that nobody other than accountants understands double-entry bookkeeping — the only bookkeeping system legally recognized as the starting point of any claim of ownership or transaction about anything.

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Without real transactions and real entries in their ledgers, nobody can claim ownership of the obligation. And nobody can claim authority from the owner of the obligation unless that mysterious virtual creditor has entered into transactions and currently maintains ownership of a loan account receivable. 

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Neil F Garfield, MBA, JD, 73, 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.
*

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. Inthe meanwhile you can order any of the following:
*
CLICK HERE 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.

Another Victory — This Time in NJ

I’m not one for bragging or testimonials but occasionally I think it is helpful to encourage people to fight foreclosures and evictions based on foreclosures.

I have thousands of cases like this but most people refuse to believe it — including lawyers and judges — mainly because the field of investment banking is so complex and sophisticated that it is incomprehensible to think that the loan is not a loan and that there is no lender or obligation in most “securitized” transactions (which were never in fact securitized).

The simple act of aggressively pursuing the facts behind the claim of delivery of the note and the facts behind the grant of authority to enforce is usually sufficient to win. But the opposition will drag it out because most people lose heart, lose interest, or give up for lack of time and money.

Here is one such case from someone who was merely following what I was saying on this blog:

Good morning Mr. Garfield!! I was thanking you because without you I wouldn’t have won my case. I honestly cannot thank you enough for your website. I have followed it for 2 years now and have successfully litigated against US Bank/Wells/SLS and currently, DBNTC/Nationstar. We have one final hearing but DBNTC/Nationstar has already filed papers conceding they cannot follow the controlling Order dated XXXXXXX. The Judge said she will issue a Judicial Satisfaction on XXXXXXXX should they fail to follow the Order (Hearing date: XXXXXX2020)

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Neil F Garfield, MBA, JD, 73, 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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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. Inthe meanwhile you can order any of the following:
*
CLICK HERE 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.

BEWARE OF FORECLOSURE RELIEF SCAMS

IN JUST A FEW WEEKS, A NEW TIDAL WAVE OF FORECLOSURES AND EVICTIONS WILL BEGIN.

HOMEOWNERS AND RENTERS DO HAVE DEFENSES, BUT THEY ARE UNAWARE OF HOW TO USE THEM.

THIS LEAVES THEM OPEN TO FRAUD — victims of both predatory investment banks and predatory entrepreneurs.

Here is a simple rule of thumb — if it isn’t a lawyer directly offering his/her services you are probably being scammed. There is no such thing as a middleman who decreases the cost or increases the quality of the service. That is pure fiction.

This is already happening. There are a number of lay people out there, some of whom are even well-intentioned, that are making promises that are merely wishful thinking.

So in a nutshell, if you think you are going to defeat a claimant who says that they are the lawful owner of an existing obligation that has not been paid, you need to do one of three things:

  • Prove that there is no existing obligation owed by the named claimant (not as hard as you may think)
  • Defeat the ability of the named claimant to put on evidence (generally successful).
  • Destroy the credibility of the testimony and exhibits at trial through voir dire and cross-examination (sometimes successful). 

In all cases, you need a skilled trial lawyer who is not afraid to object, argue aggressively, and persistently seeks to take control of the litigation narrative throughout the process.

It is not and never will be enough to know that you are the victim of fraud and to claim that. It is not enough to pose challenging questions to which you will receive no answer outside of court (although QWR and DVL are effective mans for setting the stage for impeachment through inconsistent answers).

It is not even enough to pose those questions in discovery unless you aggressively pursue answers by filing motions to compel, getting a hearing, winning the hearing, and getting an order from the court commanding the foreclosure mill to provide you with answers to questions that they will never answer.

And it is not enough to get that order unless you know what to do with it in order to limit evidence that can be introduced against you.

The scam artists will play on certain predispositions and then let you sell yourself on doing something against your own interests. You want to save money and they offer to get you results for less money than a lawyer would charge.

No report is going to save you without a lawyer who knows how to use it. But is also true that most lawyers have nothing to work with without the report. Your personal information (mostly opinion) is useless because you don’t understand the basic elements of securitization of debt as practiced by the investment banks for the past 25 years:

  • THE DEBT WAS NOT SECURITIZED
  • THE DEBT WAS WRITTEN OFF CONTEMPORANEOUSLY WITH ORIGINATION OR ACQUISITION OF THE HOMEOWNER TRANSACTION
  • THE NAMED TRUSTEE HAS NO TRUSTEE POWERS
  • THE NAMED TRUST HAS NOTHING IN IT AND PROBABLY HAS NO LEGAL EXISTENCE BECAUSE OF THAT.
  • INVESTORS ARE NOT BENEFICIARIES OF THE NAMED TRUST
  • ADMINISTRATION, COLLECTION, AND ENFORCEMENT ARE PERFORMED FOR PROFIT — NOT FOR COLLECTION OF AN UNPAID DEBT. 
  • THE “CERTIFICATES” WERE NOT CONVEYANCES OF ANY RIGHT, TITLE, OR INTEREST IN ANY DEBT, NOTE, OR MORTGAGE.

HAVE A HAPPY THANKSGIVING!!!

I WILL PUBLISH AGAIN NEXT MONDAY.

*
Neil F Garfield, MBA, JD, 73, 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.
*

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 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.

 

 

Tonight! How the Expiration of the Federal CARES Act Will Affect You and the Economy 3PM PST 6PM EST

Thursdays LIVE! Click into the WEST COAST Neil Garfield Show

with Charles Marshall and Bill Paatalo

Or call in at (347) 850-1260 Thursdays

 

Host Charles Marshall returns with Bill Paatalo to discuss among other matters how the Federal CARE Act will expire at the end of this year. It protected millions of mortgage loans from imminent foreclosure due to COVID-19 related hardships, with an admittedly band-aid approach of what amounts to a forbearance. That all ends in weeks and millions of loans so protected are expected to go into active foreclosure with the back payments not being paid, and the current payments not affordable either, due to the continued sluggishness of much of the economy.

To fight this, homeowners will need to revisit and clarify strategies to defend their homes, and legally attack those who would foreclose on them.

Essential approaches will be

1. Facts to look for in your homeowner situation;

2. Pleading a defense or going on offense with a Plaintiff’s lawsuit;

3. Discovery options;

4. Motion practice.

So to bring this fight homeowners will need to know how, where, and when certain burdens apply–BK vs civil court for example. Then the most relevant facts to a given case should be alleged which are provable, or which it can be shown the other side can’t prove. In many cases, discovery can be used to expose the inability or unwillingness of the opposition to answer simple questions about the ownership and status of the loan account.

Bill Paatalo will first discuss how in New Jersey securitized mortgage ‘trusts’ are for the all the wrong reasons avoiding taxes by declaring they are not in facts trusts.

Tonight! Open Mike! Questions and Answers — Preparing for the New Wave of Foreclosures

Thursdays LIVE! Click in to the Neil Garfield Show

Tonight’s Show Hosted by Neil Garfield, Esq.

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

Follow voice instructions when you dial in or connect via computer. You will be recognized in the order of your questions.
*
In 49 days, most moratoriums on foreclosures will expire, unless they are extended. That means that hundreds of thousands, perhaps millions of foreclosures will be filed or completed over the next year. And just like the 2008 meltdown, the securities brokerage firms that call themselves “investment banks” will be swarming like maggots over the carcass of millions of lives. 
*
And just like the 2008 crash, the impact will be felt for years to come. The full impact of the COVID pandemic won’t be known for a long time. It could result in many more people falling into the grasp of greedy Wall Street bankers. 
*
So my message is simple: get prepared and stay prepared. They will try to steer you into foreclosure because every dollar they receive from the forced sale of your property is going to bonuses and profits. Get rid of any thought you have that the foreclosure mills are filing foreclosures on behalf of lenders.
*
Tonight in a different format from our regular programming, I am opening the floor to questions and answers.  Please don’t use this as an opportunity to lecture about conspiracies. The purpose of this program is to allow real people to ask real questions and get real answers — subject to review and advice from local counsel. 
*
Here are some samples of the type of questions you could ask.
*
  • I have received a notice of delinquency from a company that has presented itself as a servicer. What do I do next?
  • I have been served with a notice of default and notice of sale from a company claiming to be the new trustee on my deed of trust. What do I do now?
  • I have been served with a summons and complaint for foreclosure filed by lawyers who say they are representing a trustee for some series of certificates. What is my next move?
  • A sale has already been conducted and now somebody is trying to evict me. What can I do?
*
Neil F Garfield, MBA, JD, 73, 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.
*

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. Inthe meanwhile you can order any of the following:
*
CLICK HERE 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.

To All Those Requesting an Amicus Brief on Illegal Foreclosures: A different strategy is needed in my opinion

I have spent the last six months drafting, re-drafting, editing, researching and investigating the basis for filing a brief as a friend of the court.
*
The basis for an amicus curiae brief is the anticipated willingness of the receiving court to admit that there are factors involved about which the judge or panel lacks adequate knowledge or understanding. The problem with foreclosures is that judges think they understand all they need to know. Hence an amicus curiae brief is unlikely to be accepted or even read. Some judges might accept it into the court file, but they still won’t read it or give it any weight.
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This is very much like the whole issue of fake news. In this case, the securitization players have spent billions of dollars convincing the American public, agency regulators, homeowners, lawyers, judges and appellate judges or justices that the transaction with the homeowner was a loan. Like all fake news, the more people read it and the more often they read it, the more they believe it. Judges believe in the value of precedent — decisions made previously by other courts.
**
CONFIRMATION BIAS: Each judge that has allowed the claim of securitization players to go forward as a foreclosure has reinforced the false narrative that the money received by homeowners was a loan and not payment for services rendered (i.e., payment to allow personal information to be used for marketing and selling securities, and payment for execution of documents bearing the label of loan documents so that securities could be sold).
**
So each time another court twists some law like the statute of limitations beyond recognition in order to save the foreclosure from being dismissed or vacated, they are contributing to the growing false narrative that somehow foreclosures are reducing the loss in an account receivable on the ledger of some company that has paid value in exchange for receiving a conveyance of ownership of the underlying debt from someone who owned it.
***
But nobody has ever seen such an account. They have only seen the reports from a self-proclaimed servicer who refuses to assert for whom it is working and refuses to provide any confirmation that any money collected from any homeowner is sent to any creditor.
***
I have come to the conclusion that after months of drafting potential amicus briefs, it is a nonstarter and all that work was for naught. But that freed me to think about other strategies that might directly impact the current pandemic of confirmation bias. I think an administrative rule challenge might be that vehicle. 
****
A petition to the Supreme Court of each state asserting that the current loose pleading and certification requirements reflect a bygone era in which a known creditor with an uncontested account receivable sought a remedy to offset a loss from nonpayment. In the hundreds of thousands of contested cases at least one of the principal issues raised in defense has been the true status and ownership of the alleged obligation.
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A requirement that the pleading or notice explicitly must assert the identity of the party currently carrying the account receivable (in compliance with Generally Accepted Accounting principles -GAAP)— certified by the sworn statement an actual officer of that creditor would (a) narrow the issues in discovery and (b) quite possibly narrow either the number of claims, defenses or both.  The availability of that officer for deposition or other discovery should be a condition precedent to allowing any evidence seeking to prove the assertion that a loan account exists or is owned by anyone.
****
The basic pre-approved pleading forms and rules allowing foreclosures should be changed to reflect the new reality — or the court must consider whether it is going to allow, without legislation, changes in the law to allow virtual creditors to make and collect on claims.
*
Neil F Garfield, MBA, JD, 73, 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.
*

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. Inthe meanwhile you can order any of the following:
*
CLICK HERE 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.

Fake News on Foreclosure Status: Don’t be lulled into complacency.

The worst part is that most homeowners will not even realize that it is a securities brokerage firm that is foreclosing without any right to do so and who probably owes the homeowner money — not the other way around.

You can do your own Google search. What you will discover is that local papers are documenting a substantial rise in “delinquencies”, and most experts are predicting a tsunami of foreclosures in 2021. But the Wall Street banks are peddling fake news, to wit: the foreclosures are at an all-time low.

The banks are pushing that narrative so people will forget that there is a major problem looming over the entire economy — mirroring the displacement and losses of homeowners in the 2008 mortgage meltdown.

While it is technically true that completed foreclosures are low, that is solely because of Federal and state moratoriums in place. What is needed at this point in time, is for everyone to realize that these threats of foreclosure are coming from people who are only interested in profiting from fraudulent transactions with homeowners.

When the leash comes off and the cages are open the Wall Street banks are going to come out. They will be looking at homeowners as though they were food.

The worst part is that most homeowners will not even realize that it is a securities brokerage firm that is foreclosing without any right to do so and who probably owes the homeowner money — not the other way around.

BOTTOM LINE: Get your ducks in a row now when you have the time to think. I know it’s the holiday season coming up and you want to buy presents. But saving your house is infinitely more important and possible.

*
Neil F Garfield, MBA, JD, 73, 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.
*

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 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.

Why are conditions precedent so important in foreclosure cases?

The mischaracterization of a condition precedent alters the burden of proof. (e.s.) If compliance with the HUD regulation is a condition precedent to foreclosure, the plaintiff carries the burden of proving substantial compliance with the condition when it presents its case, so long as the borrower has made a specific denial of the plaintiff’s allegation that it had satisfied all conditions precedent (e.s.).2 See, e.g., Chrzuszcz, 250 So. 3d at 769–70. But if compliance with 24 C.F.R. § 203.604 is an affirmative defense, “[t]he defendant, as the one who raises the affirmative defense, bears the burden of proving that affirmative defense.” Id. at 769 (citing Custer Med. Ctr. v. United Auto. Ins. Co., 62 So. 3d 1086, 1096 (Fla. 2010) (“An affirmative defense is an assertion of facts or law by the defendant that, if true, would avoid the action and the plaintiff is not bound to prove that the affirmative defense does not exist.”))Lakeview Loan Servicing v. Walcott-Barr. Judge Gross,  Concurring opinion.

Article 9 §203 of the Uniform Commercial Code (UCC) has been adopted as state law in all 50 states. It states that a claimant must have paid value for the underlying debt before seeking enforcement of a security instrument and it states that this is not mere guidance. It expressly states that it is a condition precedent to any attempt to enforce the security instrument (e.g. mortgage or Deed of trust).

The reason this is important is the technical construct of the burden of proof. If the homeowner denies that all conditions precedent have been satisfied then it is the claimant who must prove that all conditions precedent must be satisfied. Since one of those conditions precedent is the payment of value one exchange for ownership of the underlying obligation, a proper denial (answer in judicial cases) is sufficient in those cases to require the foreclosure mill to prove the payment of value. there are no exceptions.

In non-judicial foreclosures, this issue is muddied and its application is potentially unconstitutional. That is because the homeowner must file the lawsuit and declare that the foreclosure mill and its “client” failed to satisfy conditions precedent including the state statute adopting Article 9 §203 UCC.

In judicial foreclosures, the foreclosure mill will most likely be unable to actually prove that anyone paid value for the underlying obligation. The homeowner can seal the doom of the foreclosure mill simply by aggressively pursuing discovery seeking proof of payment. In non-judicial foreclosures, the homeowner must rely on discovery because the foreclosure has not made any allegations and therefore has nothing to prove.

Many lawyers and pro se litigants get confused in applying these “technical” requirements. The foreclosure mill will always rely on allowable legal presumptions arising from the apparent facial validity of notes, allonges, mortgages, and assignments. If the document is indeed facially valid then the presumption is that it can be admitted into evidence as both relevant and as proof of the matters asserted in the document — namely that the mortgage or note has been transferred. but you will rarely find an instrument that recites that the underlying debt was transferred. that is where legal presumptions enter the picture.

So the first thing a homeowner must do is challenge whether the document is facially valid. the answer to that often comes in the signature block where the actual party and their authority is unclear without parol evidence. If that is the case, then the document is not facially valid. Therefore no legal presumptions arise from facial validity. If the attack on facial validity fails then the homeowner must counterattack the evidence, which is now admitted, by rebutting the legal presumption, to wit: that no value was paid. That is done in discovery where the failure to respond to the discovery can if pursued correctly, lead to the conclusion that no such payment occurred. The condition precedent fails and the homeowner wins.

This is technical but not a technicality in the lay sense of the word. In the national code preceding the UCC and for centuries before it, forfeiture of property — especially homestead property — was considered to be a draconian remedy where only money was involved.

So it evolved that while you could get judgments for debts, you could not execute that judgment by selling the debtor’s property unless you had actually paid for the debt. That is why there are so many differences between Article 3 UCC and Article 9. Mortgages are not negotiable instruments.

But even with notes the fact that a claimant alleges possession of the original note does not mean they actually have it. they must prove it. And the fact that they possess it does not mean that they have the right to enforce it. But possession raises the presumption of the right to enforce. This is another area of mistakes and errors by homeowners, lawyers, trial judges, and even appellate judges.

The right to enforce can ONLY come from the one who owns the underlying obligation OR, under Article 3, someone who paid for the note in good faith and without knowledge of the maker’s defenses. There is no law in existence that will confirm ownership of the debt without payment — but payment is often presumed. So rebutting the presumption is key to winning foreclosure cases.

The absence of knowledge and use of these legal precepts is fatal to efforts to defend one’s home from unlawful seizure and foreclosure. The presence of knowledge is no guarantee of results but it raises the likelihood of a successful defense to highly probable.

BOTTOM LINE: It is not enough that you know the opposition never paid for the underlying debt. You must either force them to prove payment or prove they did not. The only other possibility that produces the same result is revealing that the opposition should not be permitted to submit evidence of ownership or authority over the debt because they refused or failed to respond to discovery — but that requires aggressive motion practice to succeed.

*
Neil F Garfield, MBA, JD, 73, 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.
*

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. Inthe meanwhile you can order any of the following:
*
CLICK HERE 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.

Tonight! Act NOW to prepare for TIDAL WAVE of foreclosure and eviction. The early bird captures the worm! 3pm PST 6PM EST

THIS IS REALLY SIMPLE: WHO DO YOU WANT OPERATING ON YOUR BRAIN? IS IT SOMEONE WHO IS THINKING OF GOING TO MEDICAL SCHOOL OR SOMEONE WITH A MEDICAL DEGREE, INTERNSHIP, RESIDENCY AND 10 YEARS OF EXPERIENCE? 

Thursdays LIVE! Click into the WEST COAST Neil Garfield Show

with Charles Marshall and Bill Paatalo

Or call in at (347) 850-1260, 3PM PST 6pm EST

Every Thursday

 

Host Charles Marshall returns with Bill Paatalo to discuss among other matters how the Federal CARE Act will expire at the end of this year. It protected millions of mortgage loans from imminent foreclosure due to COVID-19 hardships, with an admittedly band-aid approach of what amounts to a forbearance. That all ends in weeks and millions of the loans so protected are expected to go into active foreclosure with the back payments not being paid, and the current payments not affordable either, due to the continued sluggishness of much of the economy.

To fight this, homeowners will need to revisit and clarify strategies to defend their homes, and legally attack those who would foreclose on them. Essential approaches will be

1. facts to look for in your homeowner situation;

2. pleading a defense or going on offense with a plaintiff’s lawsuit;

3. discovery options;

4. motion practice.

So to bring this fight homeowners will need to how, where, and when certain burdens of proof of apply–Bk court vs. civil court for example. Then the most relevant facts to a given case should be alleged which are provable, or which it can be shown the other side can’t prove. In many cases, discovery can be used to expose the inability or unwillingness of the opposition to answer simple questions about the ownership and status of the loan account.

Bill Paatalo will first discuss how in New Jersey securitized mortgage ‘trusts’ are for all the wrong reasons avoiding taxes by declaring that they are not in fact trusts.

EDITOR’S WARNING: While a few people are correctly reading the writing on the wall, most homeowners who are or will shortly be facing foreclosure or eviction are trying to “wait it out.”

This is a dangerous mistake and a foolish risk to take with your largest asset.

When the time comes for aggressive defensive strategies, those who waited and didn’t prepare will be steamrolled the same way tens of millions were steamrolled in 2004-2012. Start the process of investigation, reporting, and analysis now. Prepare your strategy in advance. Become one of the winners.

RED ALERT! OCC IS ATTEMPTING TO SNEAK IN A RULE THAT ALLOWS ANYONE TO VIOLATE LAW AND CLAIM THEYA RE THE TRUE LENDER

https://www.occ.gov/news-issuances/news-releases/2020/nr-occ-2020-139.html#

This just in or at least just brought to my attention. It is full frontal assault on the rule of law and the banks are trying to jam it through as a rule change to allow illegal foreclosures. This development is the banks response to my blog. You must defeat this by writing to everyone you can think of to voice your protest. It is timed to be ignored with the election looming.

 Issued on October 27, 2020:

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 The Office of the Comptroller of the Currency (OCC) issued a rule that determines when a national bank or federal savings association (bank) makes a loan and is the “true lender,” including in the context of a partnership between a bank and a third party. This rule may not directly affect originators who are neither national banks or federal savings associations. But it is carte blanche to the likes of Goldman Sachs, Chase, Bank of America et al. 

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The rule specifies that a bank makes a loan and is the true lender if, as of the date of origination, it (1) is named as the lender in the loan agreement or (2) funds the loan. The rule also specifies that if, as of the date of origination, one bank is named as the lender in the loan agreement for a loan and another bank funds that loan, the bank that is named as the lender in the loan agreement makes the loan.

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The rule specifies that a bank makes a loan and is the true lender if, as of the date of origination, it (1) is named as the lender in the loan agreement or (2) funds the loan. The rule also specifies that if, as of the date of origination, one bank is named as the lender in the loan agreement for a loan and another bank funds that loan, the bank that is named as the lender in the loan agreement makes the loan.

*

So the OCC has corroborated everything said on my blog and in my public appearances and broadcasts. It recognizes that there are in fact problems with identifying the true lender and with table funded loans which have been against public policy since the 1960’s. The fix is in unless there is a public outcry. *

This rule change effectively allows anyone to be considered a true lender even if they didn’t give the borrower one penny. It also reverses public policy in allowing third parties to lend money as table finders without a license or any disclosure as to their existence.

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So what this means is that the banks are simply unable to come up with a way to bring forward any company that has an entry on its ledgers indicating the payment and ownership of a loan. For the last 20 years they have been using a virtual creditor rather than a real one. The law requires a real one.

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This rule is ultra vires and probably unconstitutional because it deprives the borrower of rights given under consumer protection statutes. If this becomes final homeowners will have very little to use to defend their property against law firms who do not represent anyone who has a financial interest or loss associated with the alleged loan. They can foreclose even though the money is used for bonuses.

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Get your pen out, go to email, Twitter and Facebook and start writing congressmen, Senators, governors, and people in the executive branch. this rule is coming out now because under a Biden administration it would never fly.

 

Qui Tam? Class Action? Mass joinder? Wrongful foreclosure?

The problem with qui tam in connection with mortgages and foreclosures is that they have not yet worked except in rare instances. The biggest hurdle seems to be that the agency that supposedly got defrauded (e.g. FDIC) by false claims steps forward and says it was OK. You can’t force them to admit that they were defrauded and if they are unwilling to do so, there is no possible claim. The false claims act apparently needs amendment such that an agency may not ratify or forgive criminal behavior.

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The second thing that usually trips up a qui tam action is that the relator must be someone with specific knowledge that is outside of the public domain and specific to that individual. Most such actions are dismissed because they are merely disguised class actions.
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The third thing that is an obstacle to a successful qui tam action is that the expense of litigation is much higher than ordinary litigation. So most people file such actions in the hope of a state AG or the US AG accepting the action and litigating it. If the AG steps on it, the inference is raised that the qui tam lacks merit or can’t be raised to the necessary level of proof — making it that much harder to prove a prima facie case.
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All that said, the reason why people keep trying to go for qui tam actions is that the rewards can be enormous. One person received $31 million in a settlement. See stories on Lynn Simoniak.
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My personal preference (which could be dead wrong) is a mass joinder action in which homeowners who have or had loans claimed as securitized by one specific REMIC trust scheme, bring a claim essentially stating that it was all a lie. I like it because proving that the loan was not securitized is actually quite simple in discovery.
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You end up not actually proving it, but rather blocking the opposition from introducing any evidence that the transaction was a loan and was securitized. If there is no evidence supporting the securitization of the “loan” the claims of the lawyers, servicer, trust and trustee are left without any foundation. And once that is the case any past, current or future foreclosure judgments or sales are void, not merely voidable.
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Without securitization (or some other enforceable agreement detailing the rights between the owner of the underlying obligation and the foreclosure players) there is no right, title or interest in the debt, note or mortgage and no authority to administer, collect or enforce.

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Neil F Garfield, MBA, JD, 73, 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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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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Please visit www.lendinglies.com for more information.

Tonight! I’m Back! Talking about Motions to Vacate, Motions for Rehearing, Motions for Reconsideration and Appeals 6PM EDT 3PM PDT

THE MOMENT YOU FIND YOURSELF SAYING “BUT  JUDGE, YOU DON’T UNDERSTAND,” YOU HAVE ALREADY LOST.

Thursdays LIVE! Click in to the Neil Garfield Show

Tonight’s Show Hosted by Neil Garfield, Esq.

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

In my experience most motions to vacate are actually motions for rehearing. There is a huge difference. Failure to understand these differences results in thousands of hours of legal work that are completely useless except perhaps as a delay tactic. In order to score points in this arena you must (1) disabuse yourself of the notion that you’re dealing with a “standard mortgage loan” and a “standard mortgage foreclosure” and (2) know how to use that knowledge to make legal points that cannot be ignored by the trial court or an appellate court.

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Just because you labeled a pleading as a motion to vacate does not mean that it will be treated as such. Nor should it. Just like an assignment of mortgage or beneficial interest in a deed of trust is not an assignment of mortgage if it does not include transfer of the underlying the debt after payment of value — either on the face of the instrument (making it facially invalid if there is no recitation of transfer of the debt for value paid) or concurrent with the assignment is a separate transaction — requiring actual proof of payment and transfer from someone who owns the underlying obligation.

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Tonight we talk about an area of law that is confusing for lawyers, lay persons and even judges. There is a difference between a motion to vacate, a motion for rehearing and a motion for reconsideration. And generally the decision comes down to manifest injustice. Trial court decisions are not corrected on appeal unless there was a clear mistake by  the trial judge that would have resulted or probably would have resulted in a different decision. 
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Appeals are not about whether the judges on the appellate panel would have decided the case differently. And an appeal is not a forum for rearguing a case. The case has been heard and its final unless there was error and it resulted in a violation of due process where that violation resulted in a decision that would have been different if the violation had not occurred. But even if all that is true, the court will not and may not even consider the issue unless it was timely and properly raised and preserved, without intentional or unintentional waiver, in the trial court.
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New Look for www.lendinglies.com

Our commercial site which sells services and publications has had a makeover. Please browse it and let me know if you like it.

www.lendinglies.com

 

BANKS ARE STEPPING UP ATTACKS ON THIS SITE

The banks employ a fairly large army of people whose job it is to discredit meritorious foreclosure defenses. Their job is to convince the public and lawyers and judges in general to accept the notion that the “loans” are real, that documentation alone is sufficient to win a foreclosure even if it is challenged, and that the specific facts reported on this blog and others are merely “conjecture” or “hypothetical.”

Such comments are meant to provoke a certain reaction and the banks have been successful at it — 96% of all homeowners served with foreclosure papers walk away from their biggest and maybe their only asset. Unlike myself, none of them worked on Wall Street in any capacity except writing for the investment banks. Unlike myself and the dozens of lawyers across the country that have defeated foreclosures, these “commentators” have no experience in law, trial work, forensic auditing or anything else. they serve only one master — the myth that are directed to propagate.

In effect, they are conveying the erroneous and false impression that lawyers like myself could not possibly have won cases in state and Federal courts because all we have is conjecture and no proof of our irrational “theories.” But our strategy is no theory. If someone is named as the claimant in a  foreclosure case the law requires them to have paid value for the underlying obligation. If they haven’t paid value they fail (i.e., they don’t get the foreclosure order or sale) for two reasons — (1) non compliance with condition precedent in Article 9 §203 UCC and (2) noncompliance with constitutional requirement that only injured people can bring claim for relief.

These shills post comments on this blog and social media to drive consumers away from their only path to relief from illegal, wrong, immoral foreclosures.

Mostly I ignore them.  Most of them, like Bob G below, have no credentials in finance, law, accounting or lending. I, on the other hand, have extensive (50 years) academic degrees with highest honors in securities, accounting and law along with licensing in securities trading and analysis. See my bio. I also am a real live licensed attorney (43+ years) who has won most of the foreclosure cases referred to me and I have extensive experience representing both lenders and borrowers since 1977.

The latest bit of pure silliness comes from Bob G, who, writing for the banks, says

The trustee doesn’t have to buy anything. [EDITOR’S NOTE: TRUE BUT THE TRUSTEE MUST RECEIVE SOMETHING THAT HAS A LEGALLY RECOGNIZED VALUE FROM SOMEONE WHO BOUGHT THE ASSET, IN THIS CASE A LOAN]. Only needs to have the beneficiary convey property to the trustee that the conveyor had a legal interest in. [EDITOR’S NOTE: NONSENSE. BENEFICIARIES ARE THE RECIPIENT OF AN INTEREST IN THE ASSET THAT WAS ENTRUSTED TO THE TRUSTEE NOT THE OTHER WAY AROUND]. Now, I can also give you a quitclaim deed to 1600 Pennsylvania Avenue in Washington, DC. I may or may not have a real property interest in the White House. But that doesn’t matter. I can still convey the deed to the trustee. Whether it turns out to be a real asset is another matter to be determined by a court. [EDITOR’S NOTE: THAT DEED WOULD PROBABLY NOT EVEN BE ACCEPTED AS FACIALLY VALID. BUT EVEN IF IT WAS, THE DEED IS VOID. NO PROPERTY INTEREST CAN BE CONVEYED EXCEPT BY SOMEONE WHO OWNS IT.

In the cases that interest folks here, there is a real owner of the mortgage note hiding behind the curtain. [EDITOR’S NOTE: THIS IS TOTALLY FALSE. THE CASES OF INTEREST ARE THOSE THAT INVOLVE FALSE CLAIMS OF SECURITIZATION OF LOANS. IF THE LOANS HAD ACTUALLY BEENS SECURITIZED THEN THERE WOULD HAVE BEEN A SALE OF PRO RATA SHARES OF THE LOANS TO MULTIPLE INVESTORS. NO SUCH SALE OCCURRED. IF THERE WAS A REAL OWNER HIDING BEHIND THE SUGGESTED CURTAIN THE PROOF IN FORECLOSURES WOUDL COME FROM THAT PERSON, WHICH IS WHAT IS REQUIRED BY LAW. INSTEAD THE FORECLOSURE PLAYERS SKATE PAST THAT REQUIREMENT BY RAISING LEGAL PRESUMPTIONS FROM THE FAICAL VALIDITY OF FABRICATED, FALSE DOCUMENTS. THERE IS NO OWNER BECAUSE TEHRE IS NO LOAN ACCOUNT HELD AS ASSET (I.E., OWNED BY) ANY COMPANY. THE LOAN ACCOUNT IS EXTINGUISHED CONTEMPORANEOUSLY IWTH ORIGINATION OR ACQUISITION OF THE DEBT.]

Original REMIC trusts are a different matter. There, there is a PSA or trust agreement. [EDITOR’S NOTE: THERE IS ALWAYS A TRUST AGREEMENT WITHOUT WHICH THERE CAN BE NO TRUST. PROFFERING THE PSA AS TRUST AGREEMENT IS MISLEADING THE COURT. THE TRUST AGREEMENT SHOWS THAT THE TRUSTEE OWNS NOTHING OF LEGALLY RECOGNIZED VALUE AND THAT THE BENEFICIARIES ARE NOT THE INVESTORS BUT RATHER THE INVESTMENT BANK THAT STARTED THE SECURITIZATION SCHEME.] There is also a named seller and depositor. [EDITOR’S NOTE: COMPLETELY UNTRUE. COMPANIES ARE NAMED AS POTENTIAL SELLER OR POTENTIAL DEPOSITOR FOR FUTURE VENTS. NO SALE IS RECITED IN PSA]. If you try and use arguments propounded on this site to win your case, you are not going to have much success, in my opinion. [EDITOR’S NOTE; BOB G’S OPINION IS IRRELEVANT BECAUSE HE LACKS ANY KNOWLEDGE OR EXPERIENCE TO OFFER AN OPINION. IT ALSO FLIES IN THE FACE THAT MANY LAWYERS, INCLUDING MYSELF HAVE WON THESE CASE FLAT OUT WITH SPECIFIC FINDINGS OF THE JDUGE THAT THE “TRUSTEE”, THE “TRUST” AND THE “SERVICER” WERE NOT AUTHORIZED WITH RIGHTS TOE FNORCE GRANTED BY ANYONE WHO OWNED THE UNDERLYING DEBT. JUDGMENT FOR HOMEOWNER].

 

Counterfeit Documents and Lying Lawyers: How to stop the foreclosure

A reader asked me to post this: (It’s worth your time)

see https://www.youtube.com/watch?v=TBSXNI0g-Kc

As I have stated for 14 years, they can’t get anywhere if they don’t have the note unless they prove a lost note. They don’t prove a lost note because the elements of a prima facie case for lost note are that the claimant was given possession of the original note by specified person in a specified transaction.. The banks can’t prove that case because there is original note. it was destroyed contemporaneously with origination of the homeowner transaction that is mistakenly referred to as a loan.

And they have another problem” they can’t get the note into evidence as evidence of the underlying obligation unless they have proper foundation testimony from someone with personal knowledge about the original transaction or, as in this case, by getting the homeowner to admit that the fabricated note she is being shown is the original, that she signed it and that she owes the money.

The homeowner in this video, Renee, refused to admit anything and the lawyers responded with all sorts of tricks to get her to acknowledge her signature on the fabricated note that they were trying to get into evidence. But Renee stayed simple and smart. She said I didn’t sign that document.

The plain truth is that if the foreclosure mill had a case they could win without legal presumptions then they would have gone to court saying it doesn’t matter if that is the original note or not — we have the right to enforce granted to us by the owner of the underlying obligation. But they can’t do that because it isn’t true. And they get away with it because the overuse of litigation immunity.

Renee should not be required to pay on any claim unless it is a valid legal claim. But more than that she should not be subject to claims for enforcement of her alleged obligation when the investment banks are not subject to enforcement of their obligation to compensate her for her absolutely required assistance in launching a concealed securitization scheme. A scheme that did NOT securitize her transaction, debt, note or mortgage. So sale occurred.

She appears to be correct in saying that Wells Fargo, a repeat offender for fraudulent accounts and documentation, was doing it again.

Bottom line: Admit nothing make them prove everything — whether alleged or asserted.

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