California Form Hiding in Plain Sight

Posted on December 10, 2018 by Neil Garfield

In cases where the CA foreclosure is being filed on behalf of the named Trustee (e.g., US Bank, Deutsch Bank etc.) for the certificates or the certificates holders — or where the it is ambiguous as to what or who the named trustee is asserted to be representing, there is a form demanding disclosure of the certificate holders and a requirement that they file an affidavit stating that they are beneficiaries of the deed of trust and agreeing to which other beneficiaries, owning more than 50% of the beneficial interest under the deed of trust may represent all of them.

Where the assertion is clearly that US Bank (or whoever) is trustee for a specifically named Trust, this would not seem to apply — unless you show that they can’t prove the trust exists and owns the subject loan.

In the absence of an agreement then it would appear that all holders of the certificates must be disclosed. If someone claims to represent the holders of certificates that party would need to show the source of its authority to directly represent the certificate holders. Remember that certificate holders are not, contrary to popular error, beneficiaries.

This might be an effective tool to force the pretenders to assert that the vehicle is the trust which is a beneficiary qualifying under the laws of California or any other states that has passed a similar statute.

Remember there is a huge difference between the beneficiary(ies) under the deed of trust and the beneficiaries (nonexistent) of a REMIC Trust (nonexistent).

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THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
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information on Majority Action Affidavit -3

Majority Action affidavit form – Exhibit B (1) (1)

california/2013/code-civ/division-3/part-4/title-14/chapter-2/article-1/section-2941.9

2013 California Code
Civil Code – CIV
DIVISION 3. OBLIGATIONS
PART 4. OBLIGATIONS ARISING FROM PARTICULAR TRANSACTIONS
TITLE 14. LIEN
CHAPTER 2. Mortgage
ARTICLE 1. Mortgages in General
2941.9
Universal Citation: CA Civ Code § 2941.9 (2013)

(a) The purpose of this section is to establish a process through which all of the beneficiaries under a trust deed may agree to be governed by beneficiaries holding more than 50 percent of the record beneficial interest of a series of notes secured by the same real property or of undivided interests in a note secured by real property equivalent to a series transaction, exclusive of any notes or interests of a licensed real estate broker that is the issuer or servicer of the notes or interests or any affiliate of that licensed real estate broker.

(b) All holders of notes secured by the same real property or a series of undivided interests in notes secured by real property equivalent to a series transaction may agree in writing to be governed by the desires of the holders of more than 50 percent of the record beneficial interest of those notes or interests, exclusive of any notes or interests of a licensed real estate broker that is the issuer or servicer of the notes or interests of any affiliate of the licensed real estate broker, with respect to actions to be taken on behalf of all holders in the event of default or foreclosure for matters that require direction or approval of the holders, including designation of the broker, servicing agent, or other person acting on their behalf, and the sale, encumbrance, or lease of real property owned by the holders resulting from foreclosure or receipt of a deed in lieu of foreclosure.

(c) A description of the agreement authorized in subdivision (b) of this section shall be disclosed pursuant to Section 10232.5 of the Business and Professions Code and shall be included in a recorded document such as the deed of trust or the assignment of interests.

(d) Any action taken pursuant to the authority granted in this section is not effective unless all the parties agreeing to the action sign, under penalty of perjury, a separate written document entitled Majority Action Affidavit stating the following:

(1) The action has been authorized pursuant to this section.

(2) None of the undersigned is a licensed real estate broker or an affiliate of the broker that is the issuer or servicer of the obligation secured by the deed of trust.

(3) The undersigned together hold more than 50 percent of the record beneficial interest of a series of notes secured by the same real property or of undivided interests in a note secured by real property equivalent to a series transaction.

(4) Notice of the action was sent by certified mail, postage prepaid, with return receipt requested, to each holder of an interest in the obligation secured by the deed of trust who has not joined in the execution of the substitution or this document.

This document shall be recorded in the office of the county recorder of each county in which the real property described in the deed of trust is located. Once the document in this subdivision is recorded, it shall constitute conclusive evidence of compliance with the requirements of this subdivision in favor of trustees acting pursuant to this section, substituted trustees acting pursuant to Section 2934a, subsequent assignees of the obligation secured by the deed of trust, and subsequent bona fide purchasers or encumbrancers for value of the real property described therein.

(e) For purposes of this section, affiliate of the licensed real estate broker includes any person as defined in Section 25013 of the Corporations Code who is controlled by, or is under common control with, or who controls, a licensed real estate broker. Control means the possession, direct or indirect, of the power to direct or cause the direction of management and policies.

(Added by Stats. 1996, Ch. 839, Sec. 3. Effective January 1, 1997.)

 

Filed under: foreclosure, forms, Investor, legal standing, Mortgage, TRUST BENEFICIARIES | Tagged: , , , , | 4 Comments »

GARFIELD PREMISES

Posted on July 11, 2018 by Neil Garfield

Most people really don’t completely understand our premise when we investigate, research, examine and analyze a case or case documents. We have several premises with which we start and check to to see if they apply. While the answer is short the work behind it is long and complicated.

Let us help you plan your foreclosure defense strategy, discovery requests and defense narrative: 202-838-6345. Ask for a Consult.

Purchase now Neil Garfield’s Mastering Discovery and Evidence in Foreclosure Defense webinar including 3.5 hours of lecture, questions and answers, plus course materials that include PowerPoint Presentations. Presenters: Attorney and Expert Neil Garfield, Forensic Auditor Dan Edstrom, Attorney Charles Marshall and and Private Investigator Bill Paatalo. The webinar and materials are all downloadable.

Get a Consult and TEAR (Title & Encumbrances Analysis and & Report) 202-838-6345. The TEAR replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).

https://www.vcita.com/v/lendinglies to schedule CONSULT, leave message or make payments. It’s better than calling!

THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.

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15 Assumptions we make that show up in all our reports and drafting.

  1. Rescission is an event that occurs upon mailing of the notice. It is not a claim for which the borrower must justify before it becomes effective. It is effective on mailing.
  2. The trusts are empty. They never took part in any transaction in which any loan was purchased. Therefore referring to the loan as being in a trust is erroneous.
  3. The Trusts don’t exist. The use of the Trustee’s name is an accommodation for a fee, and the use of the alleged trust name is the use of a fictitious name of the underwriter for certificates issued in the name of the trust. Hence the certificate owners own nothing (especially since they usually have disclaimed all interest in the debt, note or mortgage.)
  4. Since there is no trust in which the subject loan was entrusted to the named trustee, all claims to servicing rights arising from the written trust instrument (PSA) are also fictitious.
  5. None of the parties in the named trust have any right, title or interest in ownership or servicing the subject loan.
  6. In most cases the named payee on the note was neither a source nor a conduit for funds. All documents, especially mortgage documents, are construed against the drafter of those documents.
  7. The naming of a Payee who is not the source of funding prevents merger of the debt with the note, which can only occur when the payee and creditor are the same.
  8. In most cases the named Payee is different from the the creditor who funded the loan, intentionally or otherwise.
  9. In most cases the recorded mortgage names as creditor (“Lender”) a party (the named payee on the note) who is different from the creditor who funded the loan, intentionally or otherwise.
  10. In most cases (nearly all) the originator of the loan named as Payee on the note and “lender” on the mortgage was never in privity with the actual funding source.
  11. In nearly all cases referring to a lender or servicer as a lender or servicer is erroneous and admits a fact that is not true.
  12. In nearly all cases referring to a trustee as a REMIC Trustee is erroneous and admits a fact that is not true.
  13. In nearly all cases referring to a trustee as a DOT Trustee is erroneous and admits a fact that is not true.
  14. In virtually no case does equitable or legal ownership of the debt get transferred with documents of transfer.
  15. In virtually no case is there a real world transaction in which a loan is purchased and sold. It is the paper that is transferred, not the debt; hence there is no consideration.

Filed under: foreclosure, forms, jurisdiction, legal standing, Mortgage, Motions, originator, Pleading, sham transactions, TILA, TILA rescission, Title, Trail Objections, TRIAL OBJECTIONS, trial strategy | 7 Comments »

Banks Fighting Subpoenas From FHFA Over Access to Loan Files

Posted on January 31, 2017 by Neil Garfield

Whilst researching something else I ran across the following article first published in 2010. Upon reading it, it bears repeating.

Get a consult! 202-838-6345

https://www.vcita.com/v/lendinglies to schedule CONSULT, leave message or make payments.
 
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
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WHAT IF THE LOANS WERE NOT ACTUALLY SECURITIZED?

In a nutshell this is it. The Banks are fighting the subpoenas because if there is actually an audit of the “content” of the pools, they are screwed across the board.

My analysis of dozens of pools has led me to several counter-intuitive but unavoidable factual conclusions. I am certain the following is correct as to all residential securitized loans with very few (2-4%) exceptions:

  1. Most of the pools no longer exist.
  2. The MBS sold to investors and insured by AIG and the purchase and sale of credit default swaps were all premised on a general description of the content of the pool rather than a detailed description with the individual loans attached on a list.
  3. Each Prospectus if it carried any spreadsheet listing loans, contained a caveat that the attached list was by example only and not the real loans.
  4. Each distribution report contained a caveat that the parties who created it and the parties who delivered it did not guarantee either authenticity or reliability of the report. They even had specific admonitions regarding the content of the distribution report.
  5. NO LOAN ACTUALLY MADE IT INTO ANY POOL. The evidence is clear: nothing was done to assign, indorse or deliver the note to the investors directly or indirectly until a case went into litigation AND a hearing was scheduled. By that time the cutoff date had been breached and the loan was non-performing by their own allegation and therefore was not acceptable into the pool.
  6. AT ALL TIMES LEGAL TITLE TO THE PROPERTY WAS MAINTAINED BY THE HOMEOWNER EVEN AFTER FORECLOSURE AND SALE. The actual creditor who submitted a credit bid was not the creditor. The sale is either void or voidable.
  7. AT ALL TIMES LEGAL TITLE TO THE LOAN WAS MAINTAINED BY THE ORIGINATING “LENDER”. Since there was no assignment, indorsement or delivery that could be recognized at law or in fact, the originating lender still owns the loan legally BUT….
  8. AT ALL TIMES THE OBLIGATION WAS BOTH CREATED AND EXTINGUISHED AT, OR CONTEMPORANEOUSLY WITH THE CLOSING OF THE LOAN. Since the originating lender was in fact not the source of funds, and did not book the transaction as a loan on their balance sheet (in most cases), the naming of the originating lender as the Lender and payee on the note, both created a LEGAL obligation from the borrower to the Lender and at the same time, the LEGAL obligation was extinguished because the LEGAL Lender of record was paid in full plus exorbitant fees for pretending to be an actual lender.
  9. Since the Legal obligation was both created and extinguished contemporaneously with each other, any remaining obligation to any OTHER party became unsecured since the security instrument (mortgage or deed of trust) refers only to the promissory note executed by the borrower.
  10. At the time of closing, the investor-lenders were the real parties in interest as lenders, but they were not disclosed nor were the fees of the various intermediaries who brought the investor-lender money and the borrower’s loan together.
  11. ALL INVESTOR-LENDERS RECEIVED THE EQUIVALENT OF A BOND — A PROMISE TO PAY ISSUED BY A PARTY OTHER THAN THE BORROWER, PREMISED UPON THE PAYMENT OR RECEIVABLES GENERATED FROM BORROWER PAYMENTS, CREDIT DEFAULT SWAPS, CREDIT ENHANCEMENTS, AND THIRD PARTY INSURANCE.
  12. Nearly ALL investor-lenders have been paid sums of money to satisfy the promise to pay contained in the bond. These payments always exceeded the borrowers payments and in many cases paid the obligation in full WITHOUT SUBROGATION.
  13. NO LOAN IS IN ACTUAL DEFAULT OR DELINQUENCY. Since payments must first be applied to outstanding payments due, payments received by investor-lenders or their agents from third party sources are allocable to each individual loan and therefore cure the alleged default. A Borrower’s Non-payment is not a default since no payment is due.
  14. ALL NOTICES OF DEFAULT ARE DEFECTIVE: The amount stated, the creditor, and other material misstatements invalidate the effectiveness of such a notice.
  15. NO CREDIT BID AT AUCTION WAS MADE BY A CREDITOR. Hence the sale is void or voidable.
  16. ANY BALANCE DUE FROM THE BORROWER IS SUBJECT TO DEDUCTIONS FOR THIRD PARTY PAYMENTS.
  17. ANY BALANCE DUE FROM THE BORROWER IS SUBJECT TO AN EQUITABLE CLAIM FOR UNJUST ENRICHMENT THAT IS UNSECURED.
  18. ANY BALANCE DUE FROM THE BORROWER IS SUBJECT TO AN EQUITABLE CLAIM FOR A LIEN TO REFLECT THE INTENTION OF THE INVESTOR-LENDER AND THE INTENTION OF THE BORROWER.  Both the investor-lender and the borrower intended to complete a loan transaction wherein the home was used to collateralize the amount due. The legal satisfaction of the originating lender is not a deduction from the equitable satisfaction of the investor-lender. THUS THE PARTIES SEEKING TO FORECLOSE ARE SUBJECT TO THE LEGAL DEFENSE OF PAYMENT AT CLOSING BUT THE INVESTOR-LENDERS ARE NOT SUBJECT TO THAT DEFENSE.
  19. The investor-lenders ALSO have a claim for damages against the investment banks and the string of intermediaries that caused loans to be originated that did not meet the description contained in the prospectus.
  20. Any claim by investor-lenders may be subject to legal and equitable defenses, offsets and counterclaims from the borrower.
  21. The current modification context in which the securitization intermediaries are involved in settlement of outstanding mortgages is allowing those intermediaries to make even more money at the expense of the investor-lenders.
  22. The failure of courts to recognize that they must apply the rule of law results not only in the foreclosure of the property, but the foreclosure of the borrower’s ability to negotiate a settlement with an undisclosed equitable creditor, or with the legal owner of the loan in the property records.

Loan File Issue Brought to Forefront By FHFA Subpoena
Posted on July 14, 2010 by Foreclosureblues
Wednesday, July 14, 2010

foreclosureblues.wordpress.com

Editor’s Note….Even  U.S. Government Agencies have difficulty getting
discovery, lol…This is another excellent post from attorney Isaac
Gradman, who has the blog here…http://subprimeshakeout.blogspot.com.
He has a real perspective on the legal aspect of the big picture, and
is willing to post publicly about it.  Although one may wonder how
these matters may effect them individually, my point is that every day
that goes by is another day working in favor of those who stick it out
and fight for what is right.

Loan File Issue Brought to Forefront By FHFA Subpoena

The battle being waged by bondholders over access to the loan files
underlying their investments was brought into the national spotlight
earlier this week, when the Federal Housing Finance Agency (FHFA), the
regulator in charge of overseeing Fannie Mae and Freddie Mac, issued
64 subpoenas seeking documents related to the mortgage-backed
securities (MBS) in which Freddie and Fannie had invested. The FHFA
has been in charge of overseeing Freddie and Fannie since they were
placed into conservatorship in 2008.

Freddie and Fannie are two of the largest investors in privately
issued bonds–those secured by subprime and Alt-A loans that were often
originated by the mortgage arms of Wall St. firms and then packaged
and sold by those same firms to investors–and held nearly $255 billion
of these securities as of the end of May. The FHFA said Monday that it
is seeking to determine whether issuers of these so-called “private
label” MBS misled Freddie and Fannie into making the investments,
which have performed abysmally so far, and are expected to result in
another $46 billion in unrealized losses to the Government Sponsored
Entities (GSE).

Though the FHFA has not disclosed the targets of its subpoenas, the
top issuers of private label MBS include familiar names such as
Countrywide and Merrill Lynch (now part of BofA), Bear Stearns and
Washington Mutual (now part of JP Morgan Chase), Deutsche Bank and
Morgan Stanley. David Reilly of the Wall Street Journal has written an
article urging banks to come forward and disclose whether they have
received subpoenas from the FHFA, but I’m not holding my breath.

The FHFA issued a press release on Monday regarding the subpoenas
(available here). The statement I found most interesting in the
release discusses that, before and after conservatorship, the GSEs had
been attempting to acquire loan files to assess their rights and
determine whether there were misrepresentations and/or breaches of
representations and warranties by the issuers of the private label
MBS, but that, “difficulty in obtaining the loan documents has
presented a challenge to the [GSEs’] efforts. FHFA has therefore
issued these subpoenas for various loan files and transaction
documents pertaining to loans securing the [private label MBS] to
trustees and servicers controlling or holding that documentation.”

The FHFA’s Acting Director, Edward DeMarco, is then quoted as saying
““FHFA is taking this action consistent with our responsibilities as
Conservator of each Enterprise. By obtaining these documents we can
assess whether contractual violations or other breaches have taken
place leading to losses for the Enterprises and thus taxpayers. If so,
we will then make decisions regarding appropriate actions.” Sounds
like these subpoenas are just the precursor to additional legal
action.

The fact that servicers and trustees have been stonewalling even these

powerful agencies on loan files should come as no surprise based on

the legal battles private investors have had to wage thus far to force

banks to produce these documents. And yet, I’m still amazed by the

bald intransigence displayed by these financial institutions. After

all, they generally have clear contractual obligations requiring them

to give investors access to the files (which describe the very assets

backing the securities), not to mention the implicit discovery rights

these private institutions would have should the dispute wind up in

court, as it has in MBIA v. Countrywide and scores of other investor

suits.

At this point, it should be clear to everyone–servicers and investors
alike–that the loan files will have to be produced eventually, so the
only purpose I can fathom for the banks’ obduracy is delay. The loan
files should, as I’ve said in the past, reveal the depths of mortgage
originator depravity, demonstrating convincingly that the loans never
should have been issued in the first place. This, in turn, will force
banks to immediately reserve for potential losses associated with
buying back these defective mortgages. Perhaps banks are hoping that
they can ward off this inevitability long enough to spread their
losses out over several years, thereby weathering the storm caused (in
part) by their irresponsible lending practices. But certainly the
FHFA’s announcement will make that more difficult, as the FHFA’s
inherent authority to subpoena these documents (stemming from the
Housing and Economic Recovery Act of 2008) should compel disclosure
without the need for litigation, and potentially provide sufficient
evidence of repurchase obligations to compel the banks to reserve
right away. For more on this issue, see the fascinating recent guest
post by Manal Mehta on The Subprime Shakeout regarding the SEC’s
investigation into banks’ processes for allocating loss reserves.

Meanwhile, the investor lawsuits continue to rain down on banks, with
suits by the Charles Schwab Corp. against Merrill Lynch and UBS, by
the Oregon Public Employee Retirement Fund against Countrywide, and by
Cambridge Place Investment Management against Goldman Sachs, Citigroup
and dozens of other banks and brokerages being announced this week. If
the congealing investor syndicate was looking for political cover
before staging a full frontal attack on banks, this should provide
ample protection. Much more to follow on these and other developments
in the coming days…
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Posted by Isaac Gradman at 3:46 PM

Filed under: bubble, CASES, CDO, CORRUPTION, Eviction, evidence, expert witness, Fannie MAe, foreclosure mill, forms, GTC | Honor, HERS, investment banking, Investor, MODIFICATION, Mortgage, Motions, Pleading, securities fraud, Servicer, trustee | Tagged: , , , , , , , , , , , | 31 Comments »

Loan Without Money

Posted on August 18, 2014 by Neil Garfield

For more information on foreclosure offense, expert witness consultations and foreclosure defense please call 954-495-9867 or 520-405-1688. We offer litigation support in all 50 states to attorneys. We refer new clients without a referral fee or co-counsel fee unless we are retained for litigation support. Bankruptcy lawyers take note: Don’t be too quick admit the loan exists nor that a default occurred and especially don’t admit the loan is secured. FREE INFORMATION, ARTICLES AND FORMS CAN BE FOUND ON LEFT SIDE OF THE BLOG. Consultations available by appointment in person, by Skype and by phone.

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If you went to the loan closing, signed the papers and then gave them to the closing agent and then the “lender” didn’t fund the loan, what would you do? If you ask an attorney he or she would probably demand the return of the closing papers. If the mortgage got recorded the attorney would threaten a variety of consequences unless the filing with the county recorder was nullified (because it can never be physically removed).

If you were then contacted by a mysterious stranger who said forget the loan papers, I’ll loan you the money, you might have accepted. This mysterious person sends the money to the closing agent who disperses it to the Seller of the property or pay off the prior mortgage etc.

Now imagine that the first “lender” ( the one who DIDN’T make the loan) has “assigned” the documents you executed to another party who also didn’t loan any money to you and who didn’t pay for the assignment because they knew full well that the loan papers were worthless. And the “lender” designated on the note and mortgage doesn’t ask for money because they know they didn’t loan a dime to you. But they gladly accept fees for “acting” as though they were the lender and renting their name out to be used as “lender.”

And finally imagine that the assignee of the worthless documentation you executed again assigns and endorses the note and mortgage to still another party, like a REMIC Trust. What did the REMIC Trust get? Nothing, right? Not so fast.

If this last transfer of the “loan” PAPERS (described as “documents” to make them sound more important) was purchased for value in good faith without knowledge of your defense that you never received the loan, you might still be liable on that note you executed even though you never received the loan. Yes you owe the holder in due course in addition to owing the money to the mystery stranger who wired the money to the closing agent. The Trust COULD enforce the loan or at least try to do so and it would be legal because they would be a HOLDER IN DUE COURSE (HDC). An HDC can enforce free from borrower’s defenses. That is the risk of signing documents and letting them get out of your hands before you receive what you expected as part of the deal.

Why then is there no evidence or allegation by any forecloser in the securitization schemes that they have HDC status? I represented hundreds of banks, lenders, and associations in foreclosures. If anyone was holding the paper as an HDC that is what I would have said in the pleading and then I would have proven it. end of story. The borrower might have a lawsuit against the third parties who tricked him but the HDC still has a good chance of prevailing despite grievous violations of lending laws and procedures at closing — including lack of consideration (they didn’t fund the loan for which you executed the closing documents).

The ILLUSION of a loan closing has been created because both “loan” scenarios in fact occurred AT THE SAME TIME at most “loan” closings. Two different deals — one where you didn’t get the money and the other where you did. One where you signed the closing documents but didn’t get the loan and the other where you signed nothing and got the money from the loan.  In other words, you signed documents, you delivered them to the closing agent and they were delivered and recorded. But the “lender” didn’t give you any money. Ground zero for the confusion and illusion is the receipt of money by the closing agent fro the mysterious stranger instead of the party in whose favor you executed the note and mortgage.

And here is the good news. The banks know full well they can’t win if they allege they have HDC status or even that the Trust has HDC status. So they allege that they are “holders” or they allege they are “holders with rights to enforce.” More often than not they simply allege either that they are simply a “holder” or that they have the “rights to enforce.” They let the court make the rest of the assumptions and essentially treated as though the party foreclosing on you had HDC status. That is ground zero for judicial error.

The Trust never issued payment to the assignor of the loan because the assignor didn’t ask for any money except for fees in “acting” its part in the scheme. The assignments and endorsements, the more powers of attorney, the higher the stack of paper. And the higher the stack of paper the more it looks like the the loan MUST be valid and enforceable, that you did stop paying on it, and that therefore you MUST be in default.

Meanwhile the mysterious stranger is getting paid by the people who entered into an agreement — a pooling and servicing agreement — under which the investors get paid from the Trust, Trustee or Master Servicer that issued bonds to the mysterious stranger. The terms of payment are very different than the terms of your note but that doesn’t matter because they never loaned you money anyway. The real basis of the ability of the servicer and trustee to see to it that you receive your expected payment is the ability of these brokers, conduits and sham corporate entities and trusts to get their hands on your money, and the money of investors in the Trust.

Why did the mysterious stranger send money for you? Was it a gift? Of course not. But without documentation the mysterious has exactly one legal right — to demand payment at any time for the entire balance of the loan plus reasonable interest. No foreclosure, because there is no mortgage. No acceleration necessary because you already owe the entire amount. Your homestead property is NOT at risk in Florida and many other states, because the mysterious stranger has no mortgage recorded. And the full balance of the loan to the mysterious stranger is completely dischargeable in a chapter 7 bankruptcy or can be reduced substantially in a Chapter 13 or chapter 11 Bankruptcy.

Why did the mysterious stranger make the loan? Because the stranger was tricked by the same people who tricked you — under several layers of complicated relationships such that it is difficult to pin the blame on anyone. But this isn’t about blame. It is about money. Either they made a loan or they didn’t. And the answer is that nobody in their chain of “title” to the loan PAPERS ever paid one dime to loan you money or buy your loan. They are hiding that from both investors and you.

The mysterious stranger gave a broker money because he thought the broker was the intermediary between the mysterious stranger and a REMIC Trust that was issuing a semi-public offering of Mortgage Banked Securities (MBS). The stranger thinks he is an investor buying securities when in fact he has just opened the door for the broker to use his money in anyway the broker wanted, including lining the broker’s own pocket with the principal that should have loaned on good solid viable loans. The illusion is enhanced by the broker when the broker makes certain that the mysterious stranger is addressed as an “investor” or “trust beneficiary” of the REMIC trust.

The mysterious stranger who made the actual lender is tricked into believing that he has purchased a fractional ownership of thousands of mortgages including yours. That what the Prospectus and PSA seem to be saying. In reality the money that the mysterious stranger gave to the broker, stayed with the broker and that satisfied the feeding frenzy of sharks circulating around each dump of money from mysterious strangers.

“Bonuses” that were incomprehensible to the rest of the world were lavished upon the people who actually made this trick work. The  bonuses came from “profits” that were declared by the brokers from some incredibly lucky “trades” that never existed in which the Trust “bought” the loans at a price far higher than the principal balance of the loans, including yours.

AND THAT IS THE REASON FOR THE LOST, DESTROYED, FABRICATED LOAN AND TRANSFER DOCUMENTS. THE BANKS ARE CREATING THE APPEARANCE OF NEGLIGENCE THAT OVERRIDES THE TRUTH — IT WAS FRAUD. The only reason you would destroy a cash equivalent document is because you told someone it promised payment of $100, when in fact it promised only $60. The Banks can’t reveal the real money trail without revealing their vulnerability to criminal prosecution.

Of course the problem was that the broker didn’t loan you any money and either did the trust, the trustee, the servicer or any of the conduits or other intermediaries. And so none of them were entitled to have or do anything with the PAPER that had your signature on them — which contained one key term that they didn’t want anyone to see — the principal balance stated on the note.

If the mysterious stranger found out that for every dollar he paid the broker for a mortgage bond, only 60% was being used for loans, then the mysterious stranger would stop giving the broker money and would have demanded the return of all funds. But the mysterious strangers who in reality had given naked undocumented demand loans to homeowners had no idea that anything was wrong because the payments they were receiving were exactly what they expected.

So when the “borrower” is asked “did you get the loan.” His answer is “which one are you asking about?” Because no loan was ever made, directly or indirectly by the “lender” on the note and mortgage. Did you stop paying? Of course, why should I pay someone who I thought was my lender but isn’t.

All of that is the exact reason why the investor “mysterious stranger” lawsuits have all been settled for hundreds of billions of dollars. But in the end this is about the mysterious stranger and the lender designated on the note and mortgage. The fact that either way the mysterious stranger’s money was to be used for loans is not the point under our system of law. If anyone wants to enforce commercial paper based upon a loan that was never made, they lose if they are merely a “holder,” and “holder” status is all that the foreclosers have ever alleged. Their “right to enforce”comes from cyberspace rather than the owner of the loan. The owner of the loan, is in the final analysis a mysterious stranger to any of their PAPER.

The solution to our economic crisis that simply won;t end until this wrong is addressed is to stop rewarding bad behavior and let the mysterious strangers and the borrowers meet each other in the market place. Under threat of a demand loan due in full right now, nearly all homeowners would execute enforceable, clean notes and mortgages in favor of the mysterious strangers and then they could BOTH sue the intermediaries that corrupted the title and investments of the “mysterious strangers.”

Presented correctly by counsel for the homeowner, the men and women sitting on the bench will accept the truth as long as you exercise your rights to object to the use of presumptions instead of facts and demand your right to receive discovery that would disprove all the presumptions upon which the brokers and their nominees rely. Stop admitting things you know nothing about. Presume that there is a shady reason why the foreclosing party never asserts itself as an HDC. That is your clue to the truth.

 

Filed under: AMGAR, CORRUPTION, discovery, escrow agent, evidence, expert witness, foreclosure, foreclosure defenses, forms, GTC | Honor, investment banking, Investor, MBS TRUSTEE, MODIFICATION, Mortgage, Motions, originator, Pleading, Servicer, STATUTES, Title, TRUST BENEFICIARIES, trustee | Tagged: , , , , , , , , | 14 Comments »

Fannie and Freddie Slammed by Massachusetts AG

Posted on May 16, 2014 by Neil Garfield

Martha Coakley gets it. Read her letter. Being a politician she does not say that the abstract fear of strategic defaults on all loans across the board is absurd. Well, actually she does say it. Principal reductions and ending patently illegal policies preventing homeowners from buying back their own property at auction are at the center of the solution to the foreclosure mess along with one more thing: things will change when we get the answer to the question IF THESE POLICIES HURT LENDERS, INVESTORS AND BORROWERS, WHY WOULD ANYONE LISTEN TO A THIRD PARTY WHO BENEFITS?

fhfa-letter-051414

As the new head of the Federal Agency administrating Fannie and Freddie, Watts, replacing DeMarco, signals a major change in policy and regulations. The question is whether he means it. There is no doubt at the White House that the economy will continue to be dragged down by foreclosures. Their answer to the problem lies in modifications with “principal reductions” and loosening some standards for lending and securitization.

While the modification policies should be changed, this isn’t enough. Modification has been used as a tool of Wall Street to lure unwary borrowers into the illusion of immediate relief only to be faced with terms that are worse than the borrowers had before when underwriting was virtually nonexistent — albeit with some fees and other “skin in the game” restrictions that could slow up some of the continuing securitization fraud.

The issue is still the same and the fear is still there — will the entire system collapse if we stop putting the full brunt of the foreclosure mess on the backs of unsophisticated homeowners who were induced to buy loan products that were filled with false pretenses, false assumptions and nonexistent review, verification and other underwriting procedures.

At this point, considering the rampant appraisal fraud, homeowners should be given an opportunity to regain equity and have some skin in the game — as opposed to the all or nothing proposition they are fighting in court with complete strangers to their transactions 000 alleged by parties relying on evidentiary presumptions rather than real facts of each transaction.

In 2007 I proposed amnesty for everyone and that everyone share in the the losses from civil and perhaps criminal fraud caused by the banks taking money from investors and applying it to loans that were guaranteed to fail and then scaring government into thinking that the world would end if they were called on this predatory and illegal practice on the basis of being too big too fail.

Too big to fail is a myth. First, the banks can’t collapse because they are cash rich off shore. Trillions were siphoned out of pension funds, taxpayers and insurers and guarantors taking so much money that the federal reserve had to engage in various schemes of direct and disguised quantitative easing (like buying mortgage bonds that were worthless at 100% of par value). The losses claimed by the banks were also fictional.

At this point everyone at the levers of power knows the truth. The trusts were never funded and the trusts never acquired the loans. This places the investors in the position of being undifferentiated and unattached creditors for loans they funded but were never  given proper documentation in the form of notes payable tot he investors and mortgages pledging collateral to the investors, leaving them as unsecured creditors.

But now the government is committed financially to a policy of continuing fraud started by the banks which is the same thing that is happening in court. The issue is not whether a deadbeat homeowner will get a free house (that is a choice presented by the banks in a false set of presumptions). despite the dire straits of investors in worthless and fraudulent mortgage bonds, homeowners are mostly willing to offer new notes and new mortgages that reflect economic reality. No, those deadbeats are nothing of the sort. They are hard working, play by the rules people who simply want a fair deal and they are willing to shoulder the loss forced on them by the banks.

Want to test it out? Call us about our AMGAR project — 7 years in the making — in which we call the bluff of the banks. It takes money, but the investors are starting to line up to help, and the homeowners with independent assets to offer the money rather than the foreclosure are racking up wins in case after case. Watch the banks back peddle as they reject the money in favor of their much needed foreclosure judgment and sale so they can report the loan was a bust — and therefore the money the banks received in servicer payments to the investors, insurance tot he banks, guarantees and other proceed from other obligors won’t need to be paid back.

And if played properly, the tax revenue due from the banks for violations of the REMIC provisions, part of which will fall on investors who fail to make their case against the broker dealers who sold them that mortgage crap, will more than offset the lack of revenue on Federal and State levels. All they need to do is give up on too big to fail and give up on thinking that killing the middle class is a good idea because the burden must fall somewhere. In fraud, the burden falls on the perpetrators not the victims although it is rare that restitution ever equals the loss. Virtually every foreclosure is merely the court’s complicity in the continuing fraud.

Remember the playbook of the bank attorneys into undermine your confidence until the very last second when they submit their voluntary dismissal in court. Call their bluff, offer the money based upon YOUR terms or the terms of an investor who is willing to make the commitment. Your terms require proof of ownership and proof of balance after credits for third party payments. you will find they don’t own the loan and the balance of the loan has already been paid down or paid off entirely.

Don’t just file motions to enforce discovery. File motions with affidavits from forensic analysts that explain why you need what you are asking for. You’ll get the order. And as soon as you get the order, the offers of settlement will start pouring in.

For information and further assistance please call 520-405-1688 or 954-495-9867. We provide help and guidance to professionals that know foreclosure defense, foreclosure offense, modifications, short-sales, Hardest Hit Funds and other Federal, State and private programs. Remember to ask about AMGAR. It is time to strike back. Let the other side start feeling the pain.

see http://www.nytimes.com/2014/05/14/business/Melvin-Watt-shifts-course-on-fannie-mae-and-freddie-mac.html?ref=business&_r=0

 

Filed under: AMGAR, CORRUPTION, discovery, evidence, expert witness, Fannie MAe, foreclosure, foreclosure defenses, forms, GTC | Honor, investment banking, Investor, MBS TRUSTEE, MODIFICATION, Mortgage, Motions, Neil Garfield Show, originator, Pleading, securities fraud, Servicer, taxes, Title, TRUST BENEFICIARIES, trustee | Tagged: , , , , , , , | 24 Comments »

Florida Standard Jury Instructions as a Guide for Bench Trials

Posted on April 1, 2014 by Neil Garfield

Danielle Kelley, esq., my law partner frequently says she likes to start with the jury instructions because that is where everything is boiled down to their simplest components. I think it is wise to make references to the standard jury instructions (plus the fact that they were introduced as an amendment to the Florida rules of Civil Procedure — thus overriding anything the Judge thought he knew).

For example, on evidence for use in motions and at trial —

SC12-1931 Opinion

301.5 EVIDENCE ADMITTED FOR A LIMITED PURPOSE

The (describe item of evidence) has now been received into evidence. It has been admitted only [for the purpose of (describe purpose)] [as to (name party)]. You may consider it only [for that purpose] [as it might affect (name party)]. You may not consider that evidence [for any other purpose] [as to [any other party] [(name other party(s)].

That admonishment is not just for jurors — its also for jurists. There is not one set of laws that apply to juries and an entirely different set of substantive law if the case is heard by the Judge. Of course the recent case decided by Judge William Zloch in Fort Lauderdale Federal Court might make these jury instructions directly relevant.

Another example, this time on third party beneficiaries — careful that this double edged sword does not swing back at you and the need for consideration for there to be an enforceable contract—

SC12-1931 Opinion

416.2 THIRD-PARTY BENEFICIARY

(Claimant) is not a party to the contract. However, (claimant) may be entitled to damages for breach of the contract if [he] [she] [it] proves that (insert names of the contracting parties) intended that (claimant) benefit from their contract.

It is not necessary for (claimant) to have been named in the contract. In deciding what (insert names of the contracting parties) intended, you should consider the contract as a whole, the circumstances under which it was made, and the apparent purpose the parties were trying to accomplish.

SOURCES AND AUTHORITIES FOR 416.2

See RESTATEMENT (SECOND) OF CONTRACTS § 302 (1981):

[A] beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties and … the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.

While the Supreme Court has not commented directly on the applicability of the Restatement (Second) of Contracts § 302 (1981) (but note Justice Shaw’s partial concurrence in Metropolitan Life Ins. Co. v. McCarson, 467 So.2d 277, 280-81 (Fla. 1985)), all five district courts of appeal have cited the Restatement (Second) of Contracts § 302 (1981). Civix Sunrise, GC, LLC v. Sunrise Road Maintenance Assn., Inc., 997 So.2d 433 (Fla. 2d DCA 2008); Technicable Video Systems, Inc. v. Americable of Greater Miami, Ltd., 479 So.2d 810 (Fla. 3d DCA 1985); Cigna Fire Underwriters Ins. Co. v. Leonard, 645 So.2d 28 (Fla. 4th DCA 1994); Warren v. Monahan Beaches Jewelry Center, Inc., 548 So.2d 870 (Fla. 1st DCA 1989); Publix Super Markets, Inc. v. Cheesbro Roofing, Inc., 502 So.2d 484 (Fla. 5th DCA 1987). See also A.R. Moyer, Inc. v. Graham, 285 So.2d 397, 402 (Fla. 1973), and Carvel v. Godley, 939 So.2d 204, 207-208 (Fla. 4th DCA 2006) (“The question of whether a contract was intended for the benefit of a third person is generally regarded as one of construction of the contract. The intention of the parties in this respect is determined by the terms of the contract as a whole, construed in the light of the circumstances under which it was made and the apparent purpose that the parties are trying to accomplish.”).

Thus servicer advances, FDIC loss mitigation payments, and insurance payments actually received by the creditor (presumed usually to be the trust beneficiaries in a REMIC New York Trust) decrease the amount due TO the creditor — which therefore means that the amount due FROM the borrower must be reduced by the same amount. The fact that out of all the parties to the contract requiring or providing for those payments to the creditor, directly or indirectly, none of them was thinking about a benefit to the homeowner borrowers does not mean it doesn’t count. The bank might not have thought about or even known you had an Aunt Tilly. But when she pays off your mortgage, it doesn’t matter where the money came from.

And as for the contract for loan that is sometimes referred to as a quasi contract, assuming the homeowner has defended by denying the existence of an enforceable contract, here we are —

SC12-1931 Opinion

416.3 CONTRACT FORMATION — ESSENTIAL FACTUAL ELEMENTS (Claimant) claims that the parties entered into a contract. To prove that a contract was

created, (claimant) must prove all of the following:
1. The essential contract terms were clear enough that the parties could understand

what each was required to do;

2. The parties agreed to give each other something of value. [A promise to do something or not to do something may have value]; and

3. The parties agreed to the essential terms of the contract. When you examine whether the parties agreed to the essential terms of the contract, ask yourself if, under the circumstances, a reasonable person would conclude, from the words and conduct of each party, that there was an agreement. The making of a contract depends only on what the parties said or did. You may not consider the parties’ thoughts or unspoken intentions.

Note: If neither offer nor acceptance is contested, then element #3 should not be given. If (Claimant) did not prove all of the above, then a contract was not created.

NOTE ON USE FOR 416.3

This instruction should be given only when the existence of a contract is contested. If both parties agree that they had a contract, then the instructions relating to whether a contract was actually formed would not need to be given. At other times, the parties may be contesting only a limited number of contract formation issues. Also, some of these issues may be decided by the judge as a matter of law. Users should omit elements in this instruction that are not contested so that the jury can focus on the contested issues. Read the bracketed language only if it is an issue in the case.

SOURCES AND AUTHORITIES FOR 416.3

1. The general rule of contract formation was enunciated by the Florida Supreme Court in St. Joe Corp. v. McIver, 875 So.2d 375, 381 (Fla. 2004) (“An oral contract … is subject to the basic requirements of contract law such as offer, acceptance, consideration and sufficient specification of essential terms.”).

2. The first element of the instruction refers to the definiteness of essential terms of the contract. “The definition of ‘essential term’ varies widely according to the nature and complexity of each transaction and is evaluated on a case-by-case basis.” Lanza v. Damian Carpentry, Inc., 6 So.3d 674, 676 (Fla. 1st DCA 2009). See also Leesburg Community Cancer Center v. Leesburg Regional Medical Center, 972 So.2d 203, 206 (Fla. 5th DCA 2007) (“We start with the basic premise that no person or entity is bound by a contract absent the essential elements of offer and acceptance (its agreement to be bound to the contract terms), supported by consideration.”).

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3. The second element of the instruction requires giving something of value. In Florida, to constitute valid consideration there must be either a benefit to the promisor or a detriment to the promisee. Mangus v. Present, 135 So.2d 417, 418 (Fla. 1961). The detriment necessary for consideration need not be an actual loss to the promisee, but it is sufficient if the promisee does something that he or she is not legally bound to do. Id.

4. The final element of this instruction requires an objective test. “[A]n objective test is used to determine whether a contract is enforceable.” Robbie v. City of Miami, 469 So.2d 1384, 1385 (Fla. 1985). The intention as expressed controls rather than the intention in the minds of the parties. “The making of a contract depends not on the agreement of two minds in one intention, but on the agreement of two sets of external signs-not on the parties having meant the same thing but on their having said the same thing.” Gendzier v. Bielecki, 97 So.2d 604, 608 (Fla. 1957).

And as to whether the Plaintiff must prove they have been damaged by the defendant’s breach of contract —

SC12-1931 Opinion

416.4 BREACH OF CONTRACT – ESSENTIAL FACTUAL ELEMENTS

To recover damages from (defendant) for breach of contract, (claimant) must prove all of the following:

  1. (Claimant) and (defendant) entered into a contract;
  2. (Claimant) did all, or substantially all, of the essential things which the contract

required [him] [her] [it] to do [or that [he] [she] [it] was excused from doing those things];

3. [All conditions required by the contract for (defendant’s) performance had occurred;]

4. [(Defendant) failed to do something essential which the contract required [him] [her] [it] to do] [(Defendant) did something which the contract prohibited [him] [her] [it] from doing and that prohibition was essential to the contract]; and

Note: If the allegation is that the defendant breached the contract by doing something that the contract prohibited, use the second option.

5. (Claimant) was harmed by that failure.

SC12-1931 Opinion

NOTE ON USE FOR 416.4

In many cases, some of the above elements may not be contested. In those cases, users should delete the elements that are not contested so that the jury can focus on the contested issues.

SOURCES AND AUTHORITIES FOR 416.4

1. An adequately pled breach of contract action requires three elements: (1) a valid contract; (2) a material breach; and (3) damages. Friedman v. New York Life Ins. Co., 985 So.2d 56, 58 (Fla. 4th DCA 2008). This general rule was enunciated by various Florida district courts of appeal. See Murciano v. Garcia, 958 So.2d 423, 423-24 (Fla. 3d DCA 2007); Abbott Laboratories, Inc. v. General Elec. Capital, 765 So.2d 737, 740 (Fla. 5th DCA 2000); Mettler, Inc. v. Ellen Tracy, Inc., 648 So.2d 253, 255 (Fla. 2d DCA 1994); Knowles v. C.I.T. Corp., 346 So.2d 1042, 1043 (Fla. 1st DCA 1977).

2. To maintain an action for breach of contract, a claimant must first establish performance on the claimant’s part of the contractual obligations imposed by the contract. Marshall Construction, Ltd. v. Coastal Sheet Metal & Roofing, Inc., 569 So.2d 845, 848 (Fla. 1st DCA 1990). A claimant is excused from establishing performance if the defendant anticipatorily repudiated the contract. Hosp. Mortg. Grp. v. First Prudential Dev. Corp., 411 So.2d 181, 182- 83 (Fla. 1982). Repudiation constituting a prospective breach of contract may be evidenced by words or voluntary acts but refusal must be distinct, unequivocal and absolute. Mori v. Matsushita Elec. Corp. of Am., 380 So.2d 461, 463 (Fla. 3d DCA 1980).

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3. “Substantial performance is performance ‘nearly equivalent to what was bargained for.’” Strategic Resources Grp., Inc. v. Knight-Ridder, Inc., 870 So.2d 846, 848 (Fla. 3d DCA 2003). “Substantial performance is that performance of a contract which, while not full performance, is so nearly equivalent to what was bargained for that it would be unreasonable to deny the promisee the full contract price subject to the promisor’s right to recover whatever damages may have been occasioned him by the promisee’s failure to render full performance.” Ocean Ridge Dev. Corp. v. Quality Plastering, Inc., 247 So.2d 72, 75 (Fla. 4th DCA 1971).

4. The doctrine of substantial performance applies when the variance from the contract specifications is inadvertent or unintentional and unimportant so that the work actually performed is substantially what was called for in the contract. Lockhart v. Worsham, 508 So.2d 411, 412 (Fla. 1st DCA 1987). “In the context of contracts for construction, the doctrine of substantial performance is applicable only where the contractor has not willfully or materially breached the terms of his contract or has not intentionally failed to comply with the specifications.” National Constructors, Inc. v. Ellenberg, 681 So.2d 791, 793 (Fla. 3d DCA 1996).

5. “There is almost always no such thing as ‘substantial performance’ of payment between commercial parties when the duty is simply the general one to pay.” Hufcor/Gulfstream, Inc. v. Homestead Concrete & Drainage, Inc., 831 So.2d 767, 769 (Fla. 4th DCA 2002).

 

So if you look at both the pleading and the proof from the pretender lenders, they never actually say they paid for anything and they never actually say they were harmed and therefore, the Judge surmises incorrectly, that they don’t have to prove financial injury because it is somehow presumed. That is wrong. And since these jury instructions are published by the Florida Supreme Court, I don’t think the Judge has very much discretion to go outside these instructions when he or she is making the decision himself or herself — without (as the instructions from the Supreme Court say) unequivocally stating the grounds upon which the Judge deviated from the standard jury instruction.
And as for the origination of the loan, which definitely starts as an oral contract —

SC12-1931 Opinion

416.5 ORAL OR WRITTEN CONTRACT TERMS [Contracts may be written or oral.]

[Contracts may be partly written and partly oral.] Oral contracts are just as valid as written contracts.

NOTE ON USE FOR 416.5

Give the bracketed alternative that is most applicable to the facts of the case. If the complete agreement is in writing, this instruction should not be given.

SOURCES AND AUTHORITIES FOR 416.5

1. An “agreement, partly written and partly oral, must be regarded as an oral contract, the liability arising under which is not founded upon an instrument of writing.” Johnson v. Harrison Hardware Furniture Co., 160 So. 878, 879 (Fla. 1935).

2. An oral contract is subject to the basic requirements of contract law such as offer, acceptance, consideration, and sufficient specification of essential terms. St. Joe Corp. v. McIver, 875 So.2d 375, 381 (Fla. 2004).

3. “The complaint alleged the execution of an oral contract, the obligation thereby assumed, and a breach. It therefore set forth sufficient facts which taken as true, would state a cause of action for breach of contract.” Perry v. Cosgrove, 464 So.2d 664, 667 (Fla. 2d DCA 1985).

4. As long as an essential ingredient is not missing from an agreement, courts have been reluctant to hold contracts unenforceable on grounds of uncertainty, especially where one party has benefited from the other’s reliance. Gulf Solar, Inc. v. Westfall, 447 So.2d 363 (Fla. 2d DCA 1984); Community Design Corp. v. Antonell, 459 So.2d 343 (Fla. 3d DCA 1984). When the existence of a contract is clear, the jury may properly determine the exact terms of an oral contract. Perry v. Cosgrove, 464 So.2d 664, 667 (Fla. 2d DCA 1985).

5. “To state a cause of action for breach of an oral contract, a plaintiff is required to allege facts that, if taken as true, demonstrate that the parties mutually assented to ‘a certain and definite proposition’ and left no essential terms open.” W.R. Townsend Contracting, Inc. v. Jensen Civil Construction, Inc., 728 So.2d 297 (Fla. 1st DCA 1999). See also Carole Korn Interiors, Inc. v. Goudie, 573 So.2d 923 (Fla. 3d DCA 1990) (company which provided interior design services sufficiently alleged cause of action for breach of oral contract, when company alleged that: it had entered into oral contract with defendants for interior design services; company had provided agreed services; defendants breached contract by refusing to remit payment; and company suffered damages); Rubenstein v. Primedica Healthcare, Inc., 755 So.2d 746, 748 (Fla. 4th DCA 2000) (“In this case, appellant sufficiently pled that Primedica, upon acquiring Shapiros’ assets, which included their oral agreement with appellant, mutually

– 50 –

assented to appellant’s continued employment under the same terms and conditions as with Shapiro. Further, he alleged that he suffered damages as a result of his termination.”).

So if the offer  to loan money came from a party who did not loan the money then there is no contract, oral or written, and no documents that could be used as evidence of an enforceable contract because the basic elements of contract are absent. The same would hold true for assignments. Thus the pile of “transfer documents” are all meaningless and worthless unless there was an original enforceable contract.

As for the duty to disclose all intermediary parties and their compensation and the rise of an implied contract —-
SC12-1931 Opinion

416.6 CONTRACT IMPLIED IN FACT

Contracts can be created by the conduct of the parties, without spoken or written words. Contracts created by conduct are just as valid as contracts formed with words.

Conduct will create a contract if the conduct of both parties is intentional and each knows, or under the circumstances should know, that the other party will understand the conduct as creating a contract.

In deciding whether a contract was created, you should consider the conduct and relationship of the parties as well as all of the circumstances.

NOTE ON USE FOR 416.6

Use this instruction where there is no express contract, oral or written, between the parties, and the jury is being asked to infer the existence of a contract from the facts and circumstances of the case.

SOURCES AND AUTHORITIES FOR 416.6

1. “[A]n implied contract is one in which some or all of the terms are inferred from the conduct of the parties and the circumstances of the case, though not expressed in words.” 17A AM. JUR. 2d Contracts § 12 (2009).

2. “In a contract implied in fact the assent of the parties is derived from other circumstances, including their course of dealing or usage of trade or course of performance.” Rabon v. Inn of Lake City, Inc., 693 So.2d 1126, 1131 (Fla. 1st DCA 1997); McMillan v. Shively, 23 So.3d 830, 831 (Fla. 1st DCA 2009).

3. In Commerce Partnership 8098 Limited Partnership v. Equity Contracting Co., 695 So.2d 383, 387 (Fla. 4th DCA 1997), the Fourth District held:

A contract implied in fact is one form of an enforceable contract; it is based on a tacit promise, one that is inferred in whole or in part from the parties’ conduct, not solely from their words.” 17 AM. JUR. 2d Contracts § 3 (1964); Corbin, CORBIN ON CONTRACTS §§ 1.18-1.20 (Joseph M. Perillo ed. 1993). When an agreement is arrived at by words, oral or written, the contract is said to be “express.” 17 AM. JUR. 2d Contracts § 3. A contract implied in fact is not put into promissory words with sufficient clarity, so a fact finder must examine and interpret the parties’ conduct to give definition to their unspoken agreement. Id.; CORBIN ON CONTRACTS § 562 (1960). It is to this process of defining an enforceable agreement that Florida courts have referred when they have indicated that contracts implied in fact “rest upon the assent of the parties.” Policastro v. Myers, 420 So.2d 324, 326 (Fla. 4th DCA 1982); Tipper v. Great Lakes Chemical Co., 281 So.2d 10, 13 (Fla. 1973). The supreme court described the mechanics of this process in Bromer v. Florida Power & Light Co., 45 So.2d 658, 660 (Fla. 1950):

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[A] [c]ourt should determine and give to the alleged implied contract “the effect which the parties, as fair and reasonable men, presumably would have agreed upon if, having in mind the possibility of the situation which has arisen, they had contracted expressly thereto.” 12 AM. JUR. 2d 766.

See Mecier v. Broadfoot, 584 So.2d 159, 161 (Fla. 1st DCA 1991).

Common examples of contracts implied in fact are when a person performs services at another’s request, or “where services are rendered by one person for another without his expressed request, but with his knowledge, and under circumstances” fairly raising the presumption that the parties understood and intended that compensation was to be paid. Lewis v. Meginniss, 12 So. 19, 21 (Fla. 1892); Tipper, 281 So.2d at 13. In these circumstances, the law implies the promise to pay a reasonable amount for the services. Lewis, 12 So. at 21; Lamoureux v. Lamoureux, 59 So.2d 9, 12 (Fla. 1951); A.J. v. State, 677 So.2d 935, 937 (Fla. 4th DCA 1996); Dean v. Blank, 267 So.2d 670 (Fla. 4th DCA 1972); Solutec Corp. v. Young & Lawrence Associates, Inc., 243 So.2d 605, 606 (Fla. 4th DCA 1971).

….

For example, a common form of contract implied in fact is where one party has performed services at the request of another without discussion of compensation. These circumstances justify the inference of a promise to pay a reasonable amount for the service. The enforceability of this obligation turns on the implied promise, not on whether the defendant has received something of value. A contract implied in fact can be enforced even where a defendant has received nothing of value.

I think I made my point. Lawyers, follow Ms. Kelley’s suggestion. You might find your job in court a lot easier.

Florida jury instructions contract and third party beneficiary -sc12-1931

 

 

 

Filed under: CASES, CORRUPTION, evidence, expert witness, Fannie MAe, foreclosure, foreclosure defenses, foreclosure mill, forms, GARFIELD KELLEY AND WHITE, GTC | Honor, investment banking, Investor, MBS TRUSTEE, MODIFICATION, Mortgage, Motions, Neil Garfield Show, Pleading, Servicer, STATUTES, TRUST BENEFICIARIES, trustee | Tagged: , , , , , , , , | 27 Comments »

Bankruptcy Lawyers: it starts in the schedules — admission of secured debt is deadly

Posted on January 9, 2014 by Neil Garfield

I was traveling and re listening to an older lecture given by 2 Bankruptcy judges generally held in high esteem. The largest point was that naming a party as the creditor and checking the right boxes showing they are secured basically ends the discussion on the motion to lift stay and restricts your options to either filing an adversary lawsuit attached to the administrative bankruptcy petition or filing an action in state court which is where you will be if you don’t follow this same simple direction. If you file schedules attached to your petition for bankruptcy relief, as you are required to do, these are basically the same as sworn affidavits. They will be used against you in any contested hearing.

So the judge lifts the stay and then often mistakenly enters additional language in the order ending the issue of whom is the real lender. After all, that is who you were making the payments to, right, so they must be a creditor. And this is all about a mortgage foreclosure so they must, in addition to being a creditor, they must be a secured creditor. And if the collateral is worth less than the claim, there is not much else to talk about it is simple to these Judges because nobody has shown them differently and one of the Judges is retired now. By definition when the Bankruptcy Judge says in the order who is the creditor, he or she has gone beyond their jurisdiction and due process because there was no evidentiary hearing.

This all results from a combination of technology (garbage in, garbage out), inexperience with securitized mortgages, laziness and failure to do the research to determine what is the truth and what is not. If you are a bankruptcy practitioner who uses one of the desktop bankruptcy programs, then the questions, boxes, and fill-ins are intuitively placed in the schedule that your client swears to. No problem unless the schedules are wrong. And they are wrong where the debt runs from the Petitioner to the REMIC trust beneficiaries and is unsecured by any mortgage that the homeowner borrower petitioner ever signed or meant to sign.

The first point is that the amount if the debt is unknown and we now this for a fact because there are multiple offsets for Third party payment (like Servicer advances) that must be examined one by one. It could be zero, it could be there is money due to the borrower, it could be more or less what is being demanded by the Servicer or trustee. Another thing we know is that neither the Servicer or trustee is likely to know the amount of their claim. So send out a QWR to all addresses for the Servicer and the REMIC trustee.

If you get several different payment histories it is a fair bet they came off of different records, different systems and require the records custodian to authenticate each Servicer’ rendition, of beginning balance, ending balance and every transaction in between. The creditor who filed a proof of claim has the burden of showing a color able right to enforce the mortgage. That can only come from the pooling and servicing agreement. The parties to the PSA are the REMIC Trust, the REMIC Trust beneficiaries and the broker dealer who sold the bonds issued by the REMIC trust.

But if there is no trust or the REMIC trust never actually acquired the subject loan, then the appointed Servicer in the PSA draws no power from a PSA for a nonexistent or empty trust (at least empty of the subject loan.) it is not the Servicer by right, it has become the Servicer by its intervention into the contractual right between the borrower homeowner and the lender (the REMIC trust beneficiaries). The “apparent authority” of the Servicer will only take it so far.

And every transactions means that as a Servicer they were paying or passing on the borrower’s payments . Where are those records — missing. Does the corporate representative know about those payments? Who was the creditor paid. When did the payments from Servicer start and when did they stop — or are they still on-going right up to and including trial, foreclosure sale auction and final disposition of proceeds from an REO sale.

So from the perspective of the Petitioner he might have made payments to an entity that claimed to be the Servicer and those payments are due back not the bankruptcy estate. OOPS but that is what happens when a company arrogated unto itself the powers of a Servicer for loans that are claimed to be in a trust — where the trust doesn’t own the loan, note or mortgage (deed of trust). Thus the Servicer would be owed zero but you would show them in the unsecured column, unliquidated and disputed. This could have a substantial income on the amount of the claim, whether part or all of it is secured.

But no matter, if you fail to take a history from the client, get the closing documents, title and securitization report together with loan level analysis, you are going to do a disservice to your client. We provide litigation support and analysis to give you the data to make an informed decision, fight the POC, MLS, turnover of rents, etc. Then you might avoid the dreaded call of calling your insurance carrier who will probably tell you neither paid for nor received a tail on your claims made policy.

LAWYERS: Go to http://www.livingliesstore.com and start journey toward the light.

Filed under: CORRUPTION, EMS, escrow agent, evidence, expert witness, foreclosure mill, forms, GARFIELD KELLEY AND WHITE, GTC | Honor, investment banking, Investor, MBS TRUSTEE, MODIFICATION, Mortgage, Motions, Pleading, securities fraud, Servicer, STATUTES, TRUST BENEFICIARIES, trustee | Tagged: , , , , , , | 209 Comments »

Why do we need to force the banks to accept more money in modification?

Posted on October 28, 2013 by Neil Garfield
Selecting a forensic analyst or a lawyer to represent you in a mortgage dispute. You need to look at their credentials rather than listen to their sales pitch. And you need people who really believe that you can and SHOULD win. For our services and products call our customers service numbers at 520-405-1688 on the West Coast, and 954-495-9867. Or visit http://www.livingliesstore.com. Don’t waste your money if the people lack the credentials and experience and commitment to make things work out the way you want it. Everyone promises the world. We promise expertise and guidance on how to use it in court.

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It seems obvious. And if you are a lawyer practicing in real estate, you have probably attending CLE seminars about mortgage lending requirements and what to do when the borrower is in default or claimed to be in default. The answer is always a “workout” wherever possible. And the reason is that you get more from a workout than the proceeds from a foreclosure and all the financial requirements of ownership like maintenance, taxes, insurance and the expenses of selling, repairs etc. It really is that simple.

But Banks don’t want workouts or modifications. They only want to use the illusory promise of modification to get the borrower in so deep he sees no way out when the application is eventually denied. Why are so many trial modifications now in court because the bank denied the permanent modification after the trial modification as approved and the borrower met all the requirements including payments? why are the banks pursuing a strategy where they are guaranteed far less money than ramping up the “workout” programs. Maybe because if they did, they would be admitting that the loan was defective in the first place, the appraisal was inflated, the viability of the loan was zero, and the borrower had been tricked.

So why do the Banks need to be forced to take more money and less responsibility for the property? It seems obvious that they would want a workout rather than a foreclosure because it will end up with more money in their pockets and the whole mortgage mess behind them with a nice clean note and mortgage.

The answer can only be that the Banks oppose such efforts because the rational strategy of a true lender won’t end up with more money in THEIR pockets. And THAT can only be true if they are working off some different business model than a lender. It means by definition in a rational world, as Greenspan likes to say, that they could not possibly be the lender or working for the lender.

It can only be true if they are protecting the fees they are earning on nonperforming loans and justifying their stubborn resistance to modification and principal reduction by showing that the foreclosure was the only way out even though it wasn’t. The destruction of tens of thousands of homes in various cities shows that the net value of the foreclosure was zero even while the homeowners were applying for modifications that, if approved, would have not only saved individual homes, but entire neighborhoods.

The other reason of course is that the banks don’t own the loans and they did receive multiple payments on the loans from multiple sources. A foreclosure hides these payments.

So the practice hint is to be persistent and insistent on following the money trail. What the San Francisco study revealed as well as other similar studies and are own study here at livinglies is that the courts are rubber stamping foreclosures that are in favor of complete strangers tot he transaction. They don’t have a dime in the deal. But they are being given judicial nod that they are the creditor even though they are clearly not the creditor. This false creditor now has authority to claim the status of creditor and to buy property worth millions of dollars with a non-monetary credit bid in the amount of their claim, thus “out bidding” any conceivable competition and guaranteeing their ownership of the property, or allowing someone else to outbid them and taking the money from the sale even though everything they had done up to that point was false.

So you have these people and companies in a cloud of false claims of securitization selling the loan multiple times through insurance and other gimmicks making a ton of money assuming the identity of the investors and assuming ownership over the borrower’s identity and trading on that all for the purpose of ill-gotten gains. It is fraud, identity theft, RICO and Ponzi Schemes all rolled into the fog that comprises the false claims of securitization.

PRACTICE HINT: Test each transaction claimed to see if money exchanged hands and if so between what parties. You will find that the money transactions — that is the reality of what was going on bears no resemblance to the paper trail. The paper trail is meant to lead you down the rabbit hole. First establish what is in the paper trail, then establish what transactions actually occurred and then compare the two and show that the paper trail is a trail of lies.

THE KEY TO THIS MESS IS TO REPLACE OR SUBSTITUTE THE CURRENT SYSTEMS OF SERVICERS WITH AN ENTIRELY DIFFERENT SYSTEM OF SERVICING AND A DIFFERENT SET OF SERVICERS TO REPLACE THOSE WHO ARE BLOCKING THE DIALOGUE BETWEEN LENDERS AND BORROWERS.

Mortgage borrowers get more foreclosure protection from Mass. bank regulators
http://www.bizjournals.com/boston/news/2013/10/17/mortgage-borrowers-get-more.html

The Very Worst Thing About Foreclosures Today Is Watching Consumers That You Know Could be Helped Standing in Court Without An Attorney
http://ireport.cnn.com/docs/DOC-1050081/

 

Filed under: CDO, CORRUPTION, Eviction, evidence, expert witness, Fannie MAe, foreclosure, foreclosure mill, forms, GARFIELD GWALTNEY KELLEY AND WHITE, investment banking, Investor, MODIFICATION, Mortgage, Motions, Pleading, securities fraud, Servicer, trustee | Tagged: , , , , , , , , , | 23 Comments »

How to Win the Case

Posted on July 20, 2013 by Neil Garfield

There many ways to win a case, so what I am saying in this article should be taken in the context of a larger reality where lawyers are winning hearings and winning the entire case using their own style, strategies and tactics. And it is equally true that any case management plan, regardless of the brilliance behind it, can still result in a loss. So this article should not be taken as my way or the highway, but rather just my way.

The first thing to keep in mind is that the argument that many lawyers are using at the beginning of the case should really be reserved until the end if the case — closing argument at trial, or argument at motions in limine, motions for summary judgment etc.

The narrative at the end of the case must be based upon evidence that you have built, brick by brick, and which has been admitted in evidence or at least is presumed correct by the time you make your arguments. The error of pro se litigants and many lawyers is that in the absence of knowledge and experience in trial law, they attempt to insert the final narrative at the beginning of the case, when it is neither credible on its face nor supported by anything in the record. Evidence, for the most part, consists of facts that are admitted into evidence or presumed true. In early motion practice and discovery requests and motions there is no evidence except that the Plaintiff’s complaint is usually presumed or deemed to be true for purposes of the motion and argument.

If you wish to challenge the foreclosure complaint or the notice of sale in non-judicial states it is necessary for you to know the facts and know the defects of the case presented by your opposition. Announcing your narrative at the beginning merely telegraphs your case plan and locks you into an argument about why you are saying what you are saying.

For that reason I question the wisdom of filing counterclaims against the foreclosing party since your claim probably does not arise until it is determined that the foreclosure action was wrongful. This is a matter some considerable debate amongst lawyers who believe that the borrower’s claims are compulsory counterclaims that are waived unless filed in the first action that litigates the validity of the foreclosure. So it is a tricky call and only a licensed practicing attorney can give you an opinion upon which you could rely in your strategy. My belief is that most of the issues presented by the planned counterclaim should fit nicely into affirmative defenses and set up the claim for wrongful foreclosure, Slander of title etc.

So knowing your theory of the case is important as a guidepost for your early discovery and motion practice. But what you need to do is attack the basic facts and presumptions alleged by your opposition. Where do you start? In judicial states there are frequently rules requiring the verification of the complaint. Taking the deposition of the person who verified the complaint is a good idea.

Making them bring the documents and media upon which they relied might require the place of deposition to be their place of work and for lawyers to arrange for video deposition. The interesting reaction of your opposition is likely to be a motion for protective order. At this hearing you can probably get an order requiring that the person show up, perhaps permitting access to the workplace for your forensic ediscovery expert, and to bring documents “upon which she or he relied.”

My experience is that the presumptions in favor of the banks start cracking during the fight about deposing the verifier and the designated representative (the next deposition duces Tecum). The Bank will want to block access to the person who signed the verification. They will want to limit the inquiry to the designated corporate representative. Keep in mind that you also want to depose the witness who will testify at trial find out why that witness is different from the one they produced as the corporate representative with the “most” knowledge at deposition and why both if them are different than the person who verified the complaint.

By demonstrating the stonewalling and delays imposed by the bank who supposedly has an interest in getting to foreclosure sale, judges recognize that there is something odd about the case. Asking for and offering an expedited discovery schedule in a motion for status conference will also help set the stage for your accusation that the delaying party is the plaintiff or the foreclosing party. Being the aggressor can convey the impression that the borrower is not the perpetrator, but rather the victim of wrongful behavior.

Early subpoenas and motions will remove the impression that are just buying time. Strategies for buying time even if allowed by the court, basically show that you are admitting the debt, note, mortgage, foreclosure sale and credit bid but want your client to get a few months of free rent. You are digging the wrong hole if your case strategy encourages the judge to believe that the debt, note and mortgage, and the assignments are all valid and that the borrower is looking for a break.

Early proactive litigation can highlight the fact that the bank is backing up and only wants to fight uncontested cases. It is a way to take control of the narrative gradually, so that when it comes to the motions for summary judgment (including your own cross motion), you have an opening for victory as Mark Stopa has done in Florida at least make it clear that there are material issues of fact in dispute.

The absence of early proactive discovery and motions speaks loudly that the homeowner really has no defense because otherwise they would have pursued the proof.

Getting experienced trial attorneys who understand this article is not easy. Most cases settle, and most people are at least initially happy to remove the stressor imminent foreclosure and eviction. But without presenting a credible threat to the opposition, the settlement, if it happens at all is not going to offer much in terms of relief. And the cost of just getting free rent is not retaining your house and not having offset and complaints for damages for wrongful foreclosure. When you sit and do nothing you are conforming to the playbook of the bank. In the end they get the foreclosure, they evict the homeowner and the homeowner gets nothing except a black mark on their credit history.

We offer a forms library that will help reduce the work and cost of an attorney if he or she uses them as templates. Write to neilfgarfield@hotmail.com to inquire. But there are also dozens of free forms and templates you can get from foreclosure defense forms n the left side of this blog. THEY SHOULD NOT BE USED WITHOUT CONSULTING AN ATTORNEY LICENSED TO PRACTICE IN THE JURISDICTION IN WHICH THEN PROPERTY IS LOCATED.

Filed under: CASES, CORRUPTION, Eviction, evidence, expert witness, foreclosure, foreclosure mill, forms, MODIFICATION, Mortgage, Motions, Pleading, securities fraud, Servicer | Tagged: , , , , | 201 Comments »

Danielle Kelley Looks at New Florida Law: Pitfalls and Possibilities

Posted on June 18, 2013 by Neil Garfield
The fundamental paradigm shift that is coming is that the banks are the deadbeats, not the borrowers. The borrowers are seeking to enforce a fair deal; the banks are seeking to steal and lie their way through the PONZI scheme we called “Securitization.” —Neil F Garfield, Livinglies.me
If you are seeking legal representation or other services call our South Florida customer service number at 954-495-9867 and for the West coast the number remains 520-405-1688. In Northern Florida and the Panhandle call 850-765-1236. Customer service for the livinglies store with workbooks, services and analysis remains the same at 520-405-1688. The people who answer the phone are NOT attorneys and NOT permitted to provide any legal advice, but they can guide you toward some of our products and services.

SEE ALSO: http://WWW.LIVINGLIES-STORE.COM

The selection of an attorney is an important decision  and should only be made after you have interviewed licensed attorneys familiar with investment banking, securities, property law, consumer law, mortgages, foreclosures, and collection procedures. This site is dedicated to providing those services directly or indirectly through attorneys seeking guidance or assistance in representing consumers and homeowners. We are available TO PROVIDE ACTIVE LITIGATION SUPPORT to any lawyer seeking assistance anywhere in the country, U.S. possessions and territories. Neil Garfield is a licensed member of the Florida Bar and is qualified to appear as an expert witness or litigator in in several states including the district of Columbia. The information on this blog is general information and should NEVER be considered to be advice on one specific case. Consultation with a licensed attorney is required in this highly complex field.

Danielle Kelley, Esq. is a partner in Garfield, Gwaltney, Kelley and White located in Tallahassee. She has been a constant contributor to the dialogue on wrongful foreclosures and has been quoted recently in a number of articles in mainstream media. For further information on the firm’s services please call 850-765-1236.

Editor’s Comment: The Florida bill was clearly meant to speed up the “inevitable” foreclosure process, which is the wrong assumption right off the bat. If the foreclosures are wrongful we are not talking about some “i” that wasn’t dotted or some “t” that wasn’t crossed. We are talking about foreclosures that (a) didn’t need to happen and (b) couldn’t happen legally if the party  bringing the foreclosure had no right to do so.
The fundamental paradigm shift that is coming is that the banks are the deadbeats, not the borrowers. The borrowers are seeking to enforce a fair deal; the banks are seeking to steal and lie their way through the PONZI scheme we called “Securitization.”

Verification of the complaint has taken another bizarre turn. In reading the testimony and affidavits of those who “verified” the complaint, it turns out they signed the verification but knew nothing about the case. The only thing they verified was that the complaint contained information that was given to her or him by unknown parties through computer via a computer monitor.

Banks are using the verification aspect to bolster their false claims to the business records exception of hearsay. They are wrong and any judge who rules that is wrong if the verifier or affiant (a) is not the records custodian and (b) had no basis for personally knowing the truth. Pressed to give an accounting for how they know what they know, the verifier will answer “it’s in the complaint.” They often express confidence that it wouldn’t be in the complaint if it wasn’t true. Talk about circular logic!

The recent revelations about Bank of America are the tip of the iceberg of lying and deception that started when the first mortgage bond was sold and the first loan application was taken within the scope of the PONZI scheme that required bonds to be sold in order to make payments to the investors.

The fact that BOA told its employees to lie to customers in order to get them into foreclosure is enough to infer the truth, to wit: the goal was foreclosures and not financial recovery. How is that possible? What bank would not want the most it could get in mitigation of a “loss” it supposedly incurred as a result of a “default” by a “borrower” on a “debt” that was owed to the bank because the bank funded the origination or acquisition of the loan?

The questions answer themselves. If the Bank had a real loss they would want to mitigate the loss as quickly as possible. In the past that has always meant some sort of workout when that possible. Now we find out that BOA was paying its employees to lie and deceive the “borrowers” for the express purpose of getting the property into foreclosure even though that means getting a lot less money for the “creditor” than any modification, settlement or workout. So the answer is that they had no real loss and they must want the foreclosure for some other reason.

The “other reason” is simply that foreclosure is the cover-up for the PONZI scheme. And the government feels stuck by assurances it gave the large banks (see statements of future whistle blowers) when they forced the banks to acquire the investment banks, the aggregators and other players in this scheme, before the government knew that the scheme existed. So the government is buying up worthless mortgage bonds with no loans backing them and pretending that the bonds are really worth something. This is supposed to shore up the financial system by avoiding massive failures of the largest banks — something that is eventually going to happen anyway because the $ trillions that were siphoned off from from investors were then siphoned off from the banks and management now controls that money.

If you look at the merger and bond activity you can see the banks acquiring other institutions in order to provide a safety valve through which part of the ill-gotten gains from the PONZI scheme can be repatriated and the “earnings” of the bank can be seen as stable or increasing even while the rest of the world goes to hell in a hand basket. (see below). The rest of the money is being controlled by a handful of people (see future whistle blowers) who are actually controlling world events by controlling the purse strings of all world economies.

Sounds like a conspiracy theory, doesn’t it. Maybe a little less crazy now that we know that BOA was rewarding employees for lying to customers. And maybe a little less so now that we know the bonus was paid with a Target gift card. If it was a legitimate bonus, why use Target as the intermediary? Answer: the auditors of the bank probably would not like seeing bonuses paid to people who were supposedly working with borrowers on modification or settlement of the loan — especially when the record shows that the bonus was for getting the case into foreclosure rather than settlement.

As you can read for yourself below, the pace of foreclosures is picking up and is going to accelerate under the new Florida law. They are in a rush to hush up any further whistle blowers who might blow the whole thing wide open. But the carrot they held out to homeowners might be the bank’s undoing if the borrower moves promptly and fights the foreclosure on the basis of ownership of the loan. There is only one way to really own a loan and that is by paying for it. The argument has been rejected by many judges, but now it is right in the statute that the proof of ownership must be present as a condition precedent which means that the real burden of proof is switching back to the banks, where it belongs.

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Danielle Kelley, Esq. June, 2013

The banks wanted this bill – so let’s take a look at the “consumer friendly” portions and get ready.  Keep in mind the act is remedial in nature.  All complaints filed after June 7, 2013 will be subject to a motion to dismiss if the plaintiff does not meet the requirements of the new bill:

1) they must give affirmative allegations that at the time foreclosure is filed they are the holder of the original note, allege with specificity the factual basis by which they are entitled to enforce the note under 673.3011 (no more either/or pleading),

3) a plaintiff given authority to sue (i.e. servicer or someone coming in with a POA like we’ve been seeing) – the Complaint shall describe their authority and identify with specificity the document that gives them authority to act on behalf of the Plaintiff.

Given what we know about how they verify complaints, they will have a hard road showing they can verify the plaintiff actually “has” the original note.  I won’t settle for anything less than a declaration that they have seen it in person – not on a computer screen.  The bill states, “The term “original note” or “original promissory note” means the signed or executed promissory note rather than a copy thereof.”  I don’t want to hear about a janitor who was adopted as assistant vice president through corporate resolution and is verifying they saw the “original note” on a screen.  Keep in mind that they executed the complaints filed this month months ago – they sign right after they send off for verification usually. 

If they file a lost note count they must attach an affidavit under penalty of perjury to the Complaint that
1) details a clear chain endorsements, transfers, or assignments Note;
2) set forth facts showing the Plaintiff is entitled to enforce the lost instrument (Note); and
3) attach documents to the affidavit such as copies of the Note, allonges, audit reports, or other evidence of acquisition, ownership, and possession.  
 
Relevant portions of the bill below:
(2) A complaint that seeks to foreclose a mortgage or other lien on residential real property, including individual units of condominiums and cooperatives, designed principally for  occupation by from one to four families which secures a  promissory note must:
(a) Contain affirmative allegations expressly made by the plaintiff at the time the proceeding is commenced that the plaintiff is the holder of the original note secured by the mortgage; or
(b) Allege with specificity the factual basis by which the plaintiff is a person entitled to enforce the note under s. 673.3011.
(3) If a plaintiff has been delegated the authority to institute a mortgage foreclosure action on behalf of the person entitled to enforce the note, the complaint shall describe the authority of the plaintiff and identify, with specificity, the document that grants the plaintiff the authority to act on behalf of the person entitled to enforce the note. This subsection is intended to require initial disclosure of status and pertinent facts and not to modify law regarding standing or real parties in interest. The term “original note” or “original promissory note” means the signed or executed promissory note rather than a copy thereof. The term includes any renewal, replacement, consolidation, or amended and restated note or instrument given in renewal, replacement, or substitution for a previous promissory note. The term also includes a transferable record, as defined by the Uniform Electronic Transaction Act in s. 668.50(16).
(4) If the plaintiff is in possession of the original promissory note, the plaintiff must file under penalty of perjury a certification with the court, contemporaneously with the filing of the complaint for foreclosure, that the plaintiff is in possession of the original promissory note. The certification must set forth the location of the note, the name and title of the individual giving the certification, the name of the person who personally verified such possession, and the time and date on which the possession was verified. Correct copies of the note and all allonges to the note must be attached to the certification. The original note and the allonges must be filed with the court before the entry of any judgment of foreclosure or judgment on the note.
(5) If the plaintiff seeks to enforce a lost, destroyed, or stolen instrument, an affidavit executed under penalty of perjury must be attached to the complaint. The affidavit must:
(a) Detail a clear chain of all endorsements, transfers, or assignments of the promissory note that is the subject of the action.
(b) Set forth facts showing that the plaintiff is entitled to enforce a lost, destroyed, or stolen instrument pursuant to s. 673.3091. Adequate protection as required under s. 673.3091(2) shall be provided before the entry of final judgment.
(c) Include as exhibits to the affidavit such copies of the note and the allonges to the note, audit reports showing receipt of the original note, or other evidence of the acquisition, ownership, and possession of the note as may be available to the plaintiff.
(6) The court may sanction the plaintiff for failure to comply with this section.
SEE ALSO
Unnatural Disaster How mortgage servicers are strong-arming the victims of the Moore, Oklahoma tornado (among others)
http://www.newrepublic.com/article/113496/moore-oklahoma-tornado-victims-strong-armed-mortgage-servicers
HAMP Extension 2015 Could Help Millions More Avoid Foreclosure, LoanLove.com Reports
http://www.sys-con.com/node/2700128

Bank of America gave bonuses for hitting foreclosure quotas, suit alleges
http://www.bizjournals.com/orlando/morning_call/2013/06/bank-of-america-gave-bonuses-for.html

Filed under: CDO, CORRUPTION, Eviction, foreclosure, forms, GARFIELD GWALTNEY KELLEY AND WHITE, GTC | Honor, Investor, Mortgage, securities fraud | Tagged: , , , , , , , , , , | 14 Comments »

3 CASES THAT SHOW WE ARE ON THE RIGHT TRACK

Posted on September 18, 2010 by Neil Garfield

SUBMITTED BY BRIAN

Three cases that show we are on the right track.
Indymac is a bad group that is going down further.

http://www.scribd.com/doc/37596878/Paul-Nygen-Judgement-Against-Lenders-09-15-10

http://www.scribd.com/doc/37617034/FDIC-Indymac-V-Van-Dellen-Complaint-Officers-of-Indymac-sued-by-FDIC-Onewest-Bank-states-106-of-the-108-loans-are-non-performing-Must-be-to-the

http://www.scribd.com/doc/37618538/Indymac-Certificate-ShareHolder-Class-Action-9th-Circuit-Interlocutory-Order-certifying-the-6th-Amended-Complaint

Filed under: CASES, CDO, CORRUPTION, evidence, expert witness, foreclosure, forms, GTC | Honor, HERS, Investor, Mortgage, Motions, Pleading, securities fraud, STATUTES, taxes, trustee | Tagged: , , , , | 3 Comments »

MOVING INTO FIRST POSITION: PRIORITY OF LIENS

Posted on September 13, 2010 by Neil Garfield

livinglies-general-store

livinglies-newsletter-provides-more-strategic-info

IF YOU HAVE A SECOND MORTGAGE, HELOC OR OTHER JUNIOR LIEN ON YOUR PROPERTY (LIKE AN ASSOCIATION LIEN FOR NON-PAYMENT OF MAINTENANCE), THAT MIGHT JUST BE YOUR TICKET OUT OF THIS MESS.

I would add that if you are the holder or the attorney for the holder of junior liens, you should pay careful attention, because it is possible if not likely that you will have an opportunity to improve the value of that lien and at the same time clear the title with the homeowner such that the predatory loan defenses and title defenses disappear forever.

While the judiciary has been slow to apply the normal requirements of law, procedure and prioritization of real estate interests, that has only been apparent where the homeowner is contesting a foreclosure and the presumption in the Judge’s mind is that you’re a deadbeat who is trying to use technical gimmicks to delay or get out of a jam. In several cases we have reported here the rules were easily applied when the party seeking relief was an institution seeking to perfect its lien and establish its priority in the chain of title.

What I am suggesting here is that a deal between a junior lien holder with no equity covering their current position and the homeowner with an uphill fight on their hands could result in a favorable outcome for everyone except the first lien-holder. The following is a hypothetical scenario executing this strategy:

  • John Jones owns a house worth $75,000. The first mortgage is $200,000 and the second mortgage is $50,000. The original appraisal was $270,000. Jones also has a lien on his property for non payment of assessments to his condominium association. Each lien under law is subject to the procedure of foreclosure.
  • Scenario 1: The association sues to foreclose claiming the other lien holders have not perfected their liens and citing the deficiencies we all know from this blog. Homeowner settles or redeems property after Association has obtained a judgment placing it in first position. Homeowner is defendant is foreclosure of Association lien. If the Judgment states that the first lienholder failed to perfect their security interest, then the association has done your work for you.
  • Scenario 2: The holder of the second mortgage or HELOC which now views the loan as virtually worthless, or at least without any security covering the the loss, brings a quiet title action with you jointly establishing them is first position. In exchange for funding the litigation, the second place holder gets into first place, establishes that the first holder did not perfect their security interest and gets paid in full with or without a bonus.

  • Scenario 3: Homeowner is more creative and gets third party to purchase the holder of the junior lien and uses the same tactics as above. But without it appearing as bank vs. bank, the likelihood is that the court will see it as a homeowner maneuver and resort back to the wrongly conceived presumptions that makes all this necessary in the first place. A smart credit union or small community bank would do very well with this and could pilot it one house at a time.

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Filed under: CDO, evidence, expert witness, foreclosure, forms, GTC | Honor, HERS, investment banking, Investor, MODIFICATION, Mortgage, Motions, Pleading, securities fraud, STATUTES | Tagged: , , , , , , , , | 7 Comments »

HOW TO ARGUE FLORIDA ASSIGNMENT FRAUD TO JUDGES

Posted on September 2, 2010 by Neil Garfield

Good Stuff —- Now we are working on a script. Comments invited including edits. Let’s get on the same page do what the pretender lenders are doing. We should have a common message that all the Judges hear from all the lawyers.

HOW TO ARGUE FLORIDA ASSIGNMENT FRAUD TO JUDGES
http://www.amartinezlaw.com

In accordance with the Disclaimer posted on this site, nothing here shall be construed as legal advice. The information below is strickly commentary designed to help enhancing the presentation skills. The hiring of an attorney is very important. If you are in need of legal assistance, consult a licensed attorney for legal advice.

The Assignment Not Attached To The Complaint & Is Dated After The Complaint Was Filed

It is important to note here that judges like rulings from the appellate division that cover their circuit or other opinions from WITHIN their circuit (colleagues). Find those cases first and if you can’t and have to use other Florida cases, show the judge WHY they should rule the same. Remember you have 5 minutes to bring it home.

I’m going to use Deutsche Bank National Trust Company as Trustee for FFMLT 2006-3 as the Plaintiff and Marshall C. Watson as their counsel for this example.

Judge: We’re here on Defense Counsel’s Motion to Dismiss. Counsel please proceed.

Defense Counsel: Good morning Your Honor. This Motion is based on 3 points that warrant dismissal of this action (we will only focus on one – Standing)

1) Plaintiff lacks standing to bring this foreclosure action against my client (FACT/OPINION). The allegations in the complaint allege Plaintiff is the OWNER and HOLD of the NOTE that they seem to have apparently LOST (FACT) but have failed to identify, WHEN they became the OWNER and HOLDER of the Note (FACT) and HOW they became the OWNER and HOLDER of the Note (FACT), or the approximate date WHEN they allegedly lost the NOTE (FACT) and explaining HOW they allegedly lost it (FACT). They have attached a copy of a print out from court records AND NOT THEIR CLIENTS FILES of the Mortgage (FACT) which indicates First Franklin as the ORIGINAL Lender (FACT) and does not mention Plaintiff Deutsche Bank anywhere on THAT document (FACT). No NOTE or a CERTIFIED COPY of such nor has a LAWFUL and EQUITABLE ASSIGNMENT been ATTACHED to the Complaint (FACT) in support of their allegation that they are the OWNER and HOLDER of the NOTE (FACT).

STOP RIGHT HERE (EDITORS NOTE): First always state facts and not opinions. If you have to state an opinion it better be extremely persuasive and you need to have sufficient evidence to back it up. Second, if there was a Notice of Filing after the complaint was filed and you filed your Motion to Dismiss of the Assignment you want to say:

In an attempt to cloud the court’s judgment (OPINION), PLAINTIFFS COUNSEL has magically caused an Assignment to appear (FACT) which according to the date was CLEARLY drafted, executed and filed AFTER the filing of this action (FACT) where numerous case-law opinions throughout Florida PROHIBIT such Assignment filings warranting dismissal (FACT)!

STOP RIGHT HERE (EDITORS NOTE): You don’t want to come off as condescending here. Your want to come off as confident to your position and a little fantastical about Opposing Counsel’s Actions (Not PLAINTIFF) in filing the Affidavit this way. You have to end your speaking presentation here because you don’t ever want the judge to cut you off to allow opposing counsel to speak but you want your last words to the judge the prompt the question…what case law and opinions do you have to support your position?

Judge: Plaintiffs Counsel what do you have to say?

Plaintiff’s Counsel: Your Honor, our Complaint clearly states a cause of action (OPINION). Plaintiff is in possession of the original Promissory Note and we are prepared to drop the Re-establishment Count Your Honor. Since we have possession of the Original Note, the Court should find that an equitable assignment occurred prior to the actual dated assignment and the date of the assignment is irrelevant (OPINION). We only need to have possession to be the holder in due course judge which allows us to bring this action. I have numerous case-law to support our position.

Judge: Such as?

Plaintiffs Counsel: Well Your Honor, WM Specialty Mortgage, LLC v. Salomon, 874 So.2d 680 (Fla. 4th DCA 2004) and Johns v. Gillian, 184 So. 140 (Fla. 1938) clearly state that because Plaintiff had possession of the original Promissory Note the Court should find that an equitable assignment of the mortgage occurred prior to the actual dated assignment and the date of the assignment should be deemed irrelevant.

Judge: I see…Defense Counsel?

Defense Counsel: Your Honor, Counsel’s argument is misplaced (FACT/OPINION). WM Specialty Mortgage requires that, whatever the form of the assignment, there MUST first be an “unconditional” transfer of interest BEFORE the assignee may maintain a foreclosure (FACT). Unlike the matter presently before the Court, in WM Specialty Mortgage the Plaintiff alleged facts of a physical transfer of the mortgage to the assignee prior to the Plaintiff filing suit (FACT). The allegation of physical delivery SUPPORTED an equitable assignment (FACT) and based on THAT fact the Court in WM Specialty Mortgage overlooked the late executed assignment and allowed the foreclosure to continue (FACT). In the matter before this Court, the Plaintiff made no allegation IN THE Complaint of physical delivery (FACT) within the holding of WM Specialty Mortgage and the allegations in the Complaint do not rise to the standard of showing an “unconditional” transfer of the assignor’s rights to Plaintiff (FACT) nor has Plaintiff alleged in the Complaint it is the HOLDER IN DUE COURSE which counsel is alleging here.

Your Honor, before Plaintiff’s Counsel responds, I’d like the court to note that PRESENTING Affidavits that are dated AFTER the a Complaint is filed and the foreclosure has been initiated in the manner done so EXACTLY as seen here (FACT/OPINION), is a pattern and practice amongst the law firms Marshal C. Watson, Florida Default Law Group, Law Offices of David J. Stern and Shapiro & Fishman (FACT) who represent over 90% of foreclosures in the State of Florida (FACT). In fact the argument I’ve just expressed to the court comes straight from Judge Anthony Rondolino of the 6th Judicial Circuit in and for Pinellas County BANK OF AMERICA vs. COLLEEN M. MCKENNA Case No. 09-4179-CI-13 (FACT) which Marshall C. Watson was counsel of record for, where His Honor granted Defendant’s Motion to Dismiss against Marshall C. Watson for the very same reason (hand a copy of 16 Fla. L. Weekly Supp. 833c to Judge) (FACT). At a glance I have over ten (10) cases where this tactic has been used and the case was dismissed as a result (FACT) (hand Judge the cases with the points highlighted). Those cases are BRANCH BANKING AND TRUST COMPANY vs. REGINALD JENKINS, 16 Fla. L. Weekly Supp. 642a, CHASE HOME FINANCE, LLC v. JANET DOBSON, 16 Fla. L. Weekly Supp. 428a, CITIMORTGAGE, INC. vs. MICHAEL EASOM, 17 Fla. L. Weekly Supp. 100b, CREDIT BASED ASSET SERVICING AND SECURITIZATION, LLC v. TAMMY D. HARDY, 16 Fla. L. Weekly Supp. 1147a, SUNTRUST MORTGAGE, INC. vs. ELENA V. FULLERTON, 16 Fla. L. Weekly Supp. 1146b, THE BANK OF NEW YORK MELLON v. MARY L. BARNICH, 17 Fla. L. Weekly Supp. 100a, U.S. BANK NATIONAL ASSOCIATION v. BRENDA C. ROSE, 16 Fla. L. Weekly Supp. 1044a, US BANK N.A. v. JESUS TACORONTE, 17 Fla. L. Weekly Supp. 17a and WACHOVIA BANK NATIONAL ASSOCIATION vs. JUANITA NORTON, 16 Fla. L. Weekly Supp. 1043a.

All of these cases support that where an Assignment is filed AFTER the Complaint is filed and the Complaint fails to allege and/or Plaintiff fails to submit other documentary evidence showing conclusively an EQUITABLE TRANSFER of the Note (FACT), Plaintiff lacks standing to bring a foreclosure action and the case should be dismissed (FACT). I would ask the court at this time based on the OVERWHELMING support I have provided to dismiss this case.

STOP RIGHT HERE (EDITORS NOTE): I cannot tell you what the judge will decide or what Opposing Counsel will say after this point…you be the judge. What I will say is that Judges want to hear the FACTS. You have presented the FACTS very well here. The key to success in this example is your flow of words in a strong and confident manner without studder, interruption or indecisive pause.

Another very important point and cross argument I want to point out is the Assignment is 99% of the time from MERS to the Plaintiff. There are two (2) important positions to take on this.

(1) While the Mortgage may name MERS as the Nominee for Lender, it does so only in the Mortgage and the Mortgage interest only. MERS is not mentioned ANYWHERE on the Note hence it can not assign an interest greater than that which it is entitled to. The MERS assignment (outside of the number of fraudulent issues that may exist on the face of it) will casually state in the language that it is transferring ALL beneficial interest in the Mortgage AND Note. Be sure to bring to the court’s attention that MERS name is not mentioned anywhere on the NOTE as the Lenders Nominee and Plaintiff has NOT provided evidence to support MERS ability to transfer the beneficial interest of the Note.

(2) In instances where the Plaintiff is Trustee for a securitized pool of loans, find the Pooling & Servicing Agreement at http://www.secinfo.com/. Show the court that it would be impossible for MERS to transfer interest to Deutsche when it is clear from the case caption that this loan is part of a pool of loans (FYI – just because they allege your loan is part of a pool does not mean it is but for argument sake use this allegation against them). The Pooling and Servicing Agreement will show who the Depositor is, Servicer, Master Servicer and Deutsche as Trustee. This document is evidence that a) the loan transferred from the original lender to at the very least, the Depositor (where is the evidence of this transfer?), and from the Depositor to the parties in the pool (where is the evidence of this transfer or transfers) and that the Trustee gets its alleged power from this pool and agreement which only begs the question…why is counsel here attempting to claim this Note has moved from MERS to Plaintiff directly?

This is a great point to proving the assignment is a fraud. Watch what opposing counsel answers to this because it will probably amount to testimony at which point you need to be quick to say to opposing counsel “unless you intend to recuse yourself as counsel from the Plaintiff please refrain from testifying on their behalf.” Because at this point anything opposing counsel says will not be supported by anything alleged in the complaint or in the court record and that should always be your…”maybe so your honor but Plaintiff has not alleged such in the complaint…Plaintiff has not submitted any documented evidence to support what counsel is saying here today.”

Well my fellow soldiers of the cause, that is my 2 cents. Master this in 5 minutes and I think the outcome will be a positive one. I’d be very interested to hear any comments and feedback on this. My next topic will be Summary Judgment. I hope this helps.

Anthony Martinez Esq.

Filed under: bubble, CASES, CDO, CORRUPTION, Eviction, evidence, expert witness, foreclosure, foreclosure mill, forms, investment banking, Investor, Mortgage, Motions, Pleading, securities fraud, Servicer, STATUTES, trustee | Tagged: , , | 22 Comments »

JP Morgan: 8 people, 18,000 signed affidavits per month

Posted on June 8, 2010 by Neil Garfield

The bottom line is that none of these signors of affidavits have ANY personal knowledge regarding any document, event, or transaction relating to any of the loans they are “processing.” It’s all a lie.

In a 35 hour workweek, 18,000 affidavits per month computes as 74.23 affidavits per JPM signor per hour and 1.23 per minute. Try that. See if you can review a file, verify the accounting, execute the affidavit and get it notarized in one minute. It isn’t possible. It can only be done with a system that incorporates automation, fabrication and forgery.

Editor’s Note: Besides the entertaining writing, there is a message here. And then a hidden message. The deponent is quoted as saying she has personal knowledge of what her fellow workers have as personal knowledge. That means the witness is NOT competent in ANY court of law to give testimony that is allowed to be received as evidence. Here is the kicker: None of these loans were originated by JPM. Most of them were the subject of complex transactions. The bottom line is that none of these signors of affidavits have ANY personal knowledge regarding any document, event, or transaction relating to any of the loans they are “processing.” It’s all a lie.

In these transactions, even though the investors were the owners of the loan, the servicing and other rights were rights were transferred acquired from WAMU et al and then redistributed to still other entities. This was an exercise in obfuscation. By doing this, JPM was able to control the distribution of profits from third party payments on loan pools like insurance contracts, credit defaults swaps and other credit enhancements.

Having that control enabled JPM to avoid allocating such payments to the investors who put up the bad money and thus keep the good money for itself. You see, the Countrywide settlement with the FTC focuses on the pennies while billions of dollars are flying over head.

The simple refusal to allocate third party payments achieves the following:

  • Denial of any hope of repayment to the investors
  • Denial of any proper accounting for all receipts and disbursements that are allocable to each loan account
  • 97% success rate in sustaining Claims of default that are fatally defective being both wrong and undocumented.
  • 97% success rate on Claims for balances that don’t exist
  • 97% success rate in getting a home in which JPM has no investment

(THE DEPONENT’S NAME IS COTRELL NOT CANTREL)

JPM: Cantrel deposiition reveals 18,000 affidavits signed per month

HEY, CHASE! YEAH, YOU… JPMORGAN CHASE! One of Your Customers Asked Me to Give You a Message…

Hi JPMorgan Chase People!

Thanks for taking a moment to read this… I promise to be brief, which is so unlike me… ask anyone.

My friend, Max Gardner, the famous bankruptcy attorney from North Carolina, sent me the excerpt from the deposition of one Beth Ann Cottrell, shown below.  Don’t you just love the way he keeps up on stuff… always thinking of people like me who live to expose people like you?  Apparently, she’s your team’s Operations Manager at Chase Home Finance, and she’s, obviously, quite a gal.

Just to make it interesting… and fun… I’m going to do my best to really paint a picture of the situation, so the reader can feel like he or she is there… in the picture at the time of the actual deposition of Ms. Cottrell… like it’s a John Grisham novel…

FADE IN:

SFX: Sound of creaking door opening, not to slowly… There’s a ceiling fan turning slowly…

It’s Monday morning, May 17th in this year of our Lord, two thousand and ten, and as we enter the courtroom, the plaintiff’s attorney, representing a Florida homeowner, is asking Beth Ann a few questions…  We’re in the Circuit Court of the Fifteenth Judicial Circuit, Palm Beach County, Florida.

Deposition of Beth Ann Cottrell – Operations Manager of Chase Home Finance LLC

Q.  So if you did not review any books or records or electronic records before signing this affidavit of payments default, how is it that you had personal knowledge of all of the matters stated in this sworn document?

A.  Well, it is pretty simple, I have personal knowledge that my staff has personal knowledge of what is in the affidavit on personal knowledge.  That is how our process works.

Q.  So, when signing an affidavit, you stated you have personal knowledge of the matters contained therein of Chase’s business records yet you never looked at the data bases or anything else that would contain those records; is that correct?

A.  That is correct.  I rely on my staff to do that part.

Q.  And can you tell me in a given week how many of these affidavits you might sing?

A.  Amongst all the management on my team we sign about 18,000 a month.

Q.  And how many folks are on what you call the management?

A.  Let’s see, eight.

And… SCENE.

Isn’t that just irresistibly cute?  The way she sees absolutely nothing wrong with the way she’s answering the questions?  It’s really quite marvelous.  Truth be told, although I hadn’t realized it prior to reading Beth Ann’s deposition transcript, I had never actually seen obtuse before.

In fact, if Beth’s response that follows with in a movie… well, this is the kind of stuff that wins Oscars for screenwriting.  I may never forget it.  She actually said:

“Well, it is pretty simple, I have personal knowledge that my staff has personal knowledge of what is in the affidavit on personal knowledge.  That is how our process works.”

No you didn’t.

Isn’t she just fabulous?  Does she live in a situation comedy on ABC or something?

ANYWAY… BACK TO WHY I ASKED YOU JPMORGAN CHASE PEOPLE OVER…

Well, I know a homeowner who lives in Scottsdale, Arizona… lovely couple… wouldn’t want to embarrass them by using their real names, so I’ll just refer to them as the Campbell’s.

So, just the other evening Mr. Campbell calls me to say hello, and to tell me that he and his wife decided to strategically default on their mortgage.  Have you heard about this… this strategic default thing that’s become so hip this past year?

It’s when a homeowner who could probably pay the mortgage payment, decides that watching any further incompetence on the part of the government and the banks, along with more home equity, is just more than he or she can bear.  They called you guys at Chase about a hundred times to talk to you about modifying their loan, but you know how you guys are, so nothing went anywhere.

Then one day someone sent Mr. Campbell a link to an article on my blog, and I happened to be going on about the topic of strategic default.  So… funny story… they had been thinking about strategically defaulting anyway and wouldn’t you know it… after reading my column, they decided to go ahead and commence defaulting strategically.

So, after about 30 years as a homeowner, and making plenty of money to handle the mortgage payment, he and his wife stop making their mortgage payment… they toast the decision with champagne.

You see, they owe $865,000 on their home, which was just appraised at $310,000, and interestingly enough, also from reading my column, they came to understand the fact that they hadn’t done anything to cause this situation, nothing at all.  It was the banks that caused this mess, and now they were expecting homeowners like he and his wife, to pick up the tab.  So, they finally said… no, no thank you.

Luckily, she’s not on the loan, so she already went out and bought their new place, right across the street from the old one, as it turns out, and they figure they’ve got at least a year to move, since they plan to do everything possible to delay you guys from foreclosing.  They’re my heroes…

Okay, so here’s the message I promised I’d pass on to as many JPMorgan Chase people as possible… so, Mr. Campbell calls me one evening, and tells me he’s sorry to bother… knows I’m busy… I tell him it’s no problem and ask how he’s been holding up…

He says just fine, and he sounds truly happy… strategic defaulters are always happy, in fact they’re the only happy people that ever call me… everyone else is about to pop cyanide pills, or pop a cap in Jamie Dimon’s ass… one or the other… okay, sorry… I’m getting to my message…

He tells me, “Martin, we just wanted to tell you that we stopped making our payments, and couldn’t be happier.  Like a giant burden has been lifted.”

I said, “Glad to hear it, you sound great!”

And he said, “I just wanted to call you because Chase called me this evening, and I wanted to know if you could pass a message along to them on your blog.”

I said, “Sure thing, what would you like me to tell them?”

He said, “Well, like I was saying, we stopped making our payments as of April…”

“Right…” I said.

“So, Chase called me this evening after dinner.”

“Yes…” I replied.

He went on… “The woman said: Mr. Campbell, we haven’t received your last payment.  So, I said… OH YES YOU HAVE!”

Hey, JPMorgan Chase People… LMAO.  Keep up the great work over there.

Filed under: CASES, CORRUPTION, evidence, expert witness, foreclosure, foreclosure mill, foreign relations, Forensic Analysis Workshop, forms, GTC | Honor, HERS, investment banking, Investor, MODIFICATION, Mortgage, Motion Practice and Discovery, Securitization Survey, Servicer, STATUTES, trustee, workshop | Tagged: , , , , , , , , , | 22 Comments »

Excellent Motion for Fraud on Court

Posted on June 5, 2010 by Neil Garfield

motion for fraud on court Matis Abravanel

by  Matis H. Abravanel, Esq.

Some short background information on this pleading, it’s an emergency motion to cancel a final sale based upon Fraud on the Court.  This client came to us a month before his final sale date, and already had a default and a final summary judgment entered against him.  Besides non-compliance with the pooling and servicing agreement, we uncovered notary fraud (see paragraphs 1-4 and attached exhibits) and a fraudulent assignment and endorsement of a note that was dated in January of 2006, to U.S. Bank National Association, as successor Trustee to Bank of America, National Association as successor by merger to LaSalle Bank, N.A..  However its interesting to note that Bank of America didn’t take over LaSalle Bank until October of 2007, over 1 and 1/2 years later!  (see paragraph 17 and attached exhibits).   Once the ‘pretender lender’ received our motion they immediately called us and cancelled the sale, and we haven’t heard back from them since.  We are waiting to have our evidentiary hearing for Fraud on the Court.

Matis H. Abravanel, Esq.
Loan Lawyers, LLC.
www.FIGHT13.com
1 888 FIGHT 13

Filed under: CASES, CORRUPTION, Forensic Analysis Workshop, forms, GTC | Honor, HERS, Investor, MODIFICATION, Mortgage, Motion Practice and Discovery, Motions, Pleading, securities fraud, Securitization Survey, Servicer, workshop | Tagged: , , , , , | 4 Comments »

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