jurisdiction | Livinglies's Weblog

Another Example of LSF9 and McCarthy and Holthus going down in flames

Posted on February 13, 2023 by Neil Garfield

Standing is established when the party pursuing foreclosure can “demonstrate that it had the right to enforce the note and the right to foreclose the mortgage at the time the foreclosure suit was filed.” PNC Mortg. v. Romero, 2016-NMCA-064, ¶ 19, 377 P.3d 461 (alteration, internal quotation marks, and citation omitted). Third parties seeking to enforce a promissory note underlying a mortgage establish standing by “prov[ing] both physical possession and the right to enforcement through either a proper indorsement or a transfer by negotiation.” Bank of N.Y. v. Romero, 2014-NMSC-007, ¶ 21, 320 P.3d 1.

LSF9 Master Participation Tr. v. Dickinson, No. A-1-CA-37364, at *4 (N.M. Ct. App. Feb. 8, 2022)

LSF9 Master Participation Tr. v. Dickinson, No. A-1-CA-37364, at *4-5 (N.M. Ct. App. Feb. 8, 2022) (“If, at the time a lawsuit is filed, the plaintiff produces a note indorsed in blank, the plaintiff is “entitled to a presumption that it could enforce the note at the time of filing and thereby establish standing.” Johnston, 2016-NMSC-013, ¶ 25.”)[e.s.]

Trust maintains that the documentary and testimonial evidence offered, in the aggregate, established “constructive possession of the note” on the date the complaint was filed. But our review of the record established that testimony was offered concerning the absence of documentary evidence showing the note’s physical location on the complaint’s filing date. Specifically, Fannie Mae’s testifying agent admitted that none of the exhibits about which she had testified addressed the note’s physical location at the time of filing. Therefore, viewing the facts in the light most favorable to the decision below we cannot hold that the district court erred by concluding that Fannie Mae failed to demonstrate standing, as we are satisfied that its finding that Fannie Mae did not show physical possession of the note on the date the complaint was filed is supported by substantial evidence.

Hat tip to our friend and colleague Bill Paatalo, private investigator whose tireless efforts, paid and unpaid, have led to numerous discoveries and results favorable to homeowners who have successfully defended false foreclosure claims.

The devil is in the details. The moral of the story is that homeowners and their lawyers should stop assuming there is a valid, legally recognized claim against the homeowner.

This case highlights the standard I have been writing about for 16 years, which most lawyers and judges have completely ignored. First, the claim of possession of the original note is usually false. In the affidavit, the signatory doesn’t actually identify or state the physical location of the original note. Second, possession of the original note is irrelevant in the absence of a foundation, establishing the authority to enforce the note.

Ultimately and logically, that authority can only come from the creditor to which the alleged unpaid account is owed.

Lastly, a proper endorsement can be used to raise a legal presumption that the authority exists. But the homeowner should make every effort to rebut that presumption. This is normally done in the discovery process. But the same issues can be raised in a qualified written request, or a debt validation letter.

The refusal or failure to provide an answer to such basic questions and title for the homeowner to ask the court to rule that a negative inference can be raised. Having failed to corroborate the alleged legal presumption, the argument should center on the fact that the court lacks the authority to consider any evidence of the existence of an unpaid loan account due to the named plaintiff or beneficiary.

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Neil F Garfield, MBA, JD, 75, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE COMMENTS ON THIS BLOG AND ELSEWHERE ARE BASED ON THE ABILITY OF A HOMEOWNER TO WIN THE CASE NOT MERELY SETTLE IT. OTHER LAWYERS HAVE STRATEGIES DIRECTED AT SETTLEMENT OR MODIFICATION. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.

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

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

Please visit www.lendinglies.com for more information.

Filed under: foreclosure, foreclosure mill, jurisdiction, legal standing | Tagged: LSF9, McCRTHY AND HOLTHUS | Leave a comment »

How Foreclosure Mills Win by Misusing “Judicial Notice”

Posted on February 10, 2023 by Neil Garfield

Hat tip to summer chic

Judicial Notice is a rule of evidence in which the court receives a written request to accept a document into evidence as proof of the truth of the matter asserted.

In Foreclosures, the truth of the matter asserted is that there is an unpaid loan account, and the named plaintiff or beneficiary has the right to administer, collect and enforce it. If that is alleged in a form that is allowed by law, and proven in the manner allowed by law, the foreclosure will be granted. I might add, that it should be granted to the extent that there is still an unpaid balance due to the named Plaintiff or beneficiary. But in nearly all foreclosure cases, this is NOT the true fact scenario.

There are circumstances where the trial court either MUST accept a document as evidence or in which the court can accept the document as evidence as to its existence. But unless there is an objection, the court will also presume that what is contained in the document is also true.

I hasten to add that it is highly unusual for an appellate court to accept a document or record on judicial notice if it was not introduced as such in the trial court.

Here is an article that discusses judicial notice at length and presents clear definitions and uses for the request.

https://www.dailyjournal.com/mcle/1034-judicial-notice

Here are some relevant quotes from the article by attorney David M Axelrod in California.

Judicial notice is a means of bringing before a trial or appellate court “matters [that] are assumed to be indisputably true, [ so that] the introduction of evidence to prove them will not be required.”

mandatory judicial notice of “decisional, constitutional, and public statutory law,” government rules and regulations, rules of professional conduct, rules of pleading, practice and procedure, the “true signification of all English words and phrases, and … legal expressions,” and ” [f]acts and propositions of generalized knowledge that are so universally known that they cannot reasonably be the subject of dispute.”

permissive judicial notice “to the extent … not embraced within … of laws, regulations, legislative enactments, official government acts, court records, rules of court, international law, and two rather expansive catch-all categories: “[f]acts and propositions that are of such common knowledge within the territorial jurisdiction of the court that they cannot reasonably be the subject of dispute,” and “[f]acts and proposition that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.”

2. Judicial notice is limited by relevance and hearsay rules.

a. Courts will not take judicial notice of irrelevant matters.

b. A court cannot take judicial notice of the truth of hearsay statements in a document, unless an exception to the hearsay rule applies.

c. The hearsay rule also applies to preclude judicial notice of argument or comments by counsel and judges in other proceedings.

4. Judicial notice extends to a broad cat egory of facts that are “not reasonably subject to dispute and … capable of immediate and accurate determination … .”

The attorneys who work for the foreclosure mills often request judicial notice of records.

One example — out of many — is any document that shows a header at the top of the document as coming from the sec.gov website. Unwary lawyers and ignorant pro se litigants usually agree that the document is a copy of a government record.

First you should only accept a copy that is certified by the agency that issued it — not a copy, because copies can be and often are chnged digitally to reflect the desires of the lawyer who works for the foreclosure mill.

Second, without an objection as to content being hearsay or relevance, the admission of the document into evidence usually is taken as evidence of the truth of the matters asserted in the document.

And third, the document is generally subject to both a hearsay and relevance objection. For hearsay, see practically every article I have written on these pages. For relevance, only a litigator will know what I am talking about.

The document is NOT relevant unless there is a foundation (testimony admitted as evidence) that proves the existence of the unpaid loan account due to the Plaintiff or Beneficiary.

This foundation can ONLY be established by one of two methods — (1) admission from the homeowner directly or through his/her counsel or (2) by the records custodian for the named Plaintiff or Beneficiary (e.g. U.S. Bank, as trustee etc.) providing sworn testimony in support of the unpaid loan account or an acceptable report about which he has personal knowledge — not “familiarity.”

Without that foundation, there is no need to consider whether the alleged lien has been transferred, or whether the homeowner has failed to make a scheduled payment. Those issues are irrelevant in the absence of establishing the existence of an unpaid loan account with a balance due from the homeowner. Without that, there is no legally recognized claim.

Homeowners frequently lose their cases and fail to successfully defend foreclosures, simply because they admit the existence of an unpaid loan account due to the named Plaintiff or Beneficiary.

The other way they lose is by failing to object to the “payment history” offered by the attorney, working for the foreclosure Mill. This is irrelevant, and should not be admitted into evidence without first establishing the foundation that

An unpaid loan account exists
An unpaid loan account has a balance due that is unpaid
An unpaid loan account is owed to the plaintiff or beneficiary
The Plaintiff or beneficiary has appointed a company to act as “Servicer” in accordance with the tersms of a servicing agreement that is also produced by a records custodian.

The fact that a witness shows up and is willing to be sworn in as a witness does not mean anything they say is true. Their testimony that their employer is a “Servicer” is a matter of opinion and is usually not true. (see below). Unless they have personally witnessed employees of their employer collecting checks or other forms of payment, they must be requried to define “servicer.” Homeowners lose by failing to do that.

If the lawyer representing the foreclosure mill wants to use the “payment history” at all, he, or she must produce foundation testimony from a records custodian who says the are personally knowledgeable that the record is one that represents business conducted by the company that is said to be the issuer of the report.

No such witness ever appears in foreclosure cases. Instead the witness testifies that the report is issued in the ordinary course of business but it not stated by the witness that the report is a representative of transactions that were accepted, processed or forwarded by the named issuer. This sleight of hand trick is the principal reason for literally millions of false foreclosures.

No witness will say that they know that the records are an accurate depiction of transactions or business conducted in the name of “servicer.”

They won’t do that because (a) that would be perjury and (b) it isn’t true. All payments, processing and disbursements are handled by third party financial technology companies that do not work for the named “servicer.” The “ordinary course of business” that the witness is talking about is being an actor posing as a company performing servicing functions.

Some witnesses know the misleading nature of their testimony and some don’t. So in most cases you will not get an admission, although I have succeeded at doing that in a few cases.

Mostly you get the desired effect by hamemring at “how do you know that.” Like when the witness testifies about familiarity, you can usually destroy them on cross-examination when you start asking what they mean, what they saw, what they did, and how much they were relying upon statements from people who will not testify in court (hearsay).

These witnesses are put through “training” which amounts to memorizing a script. When they say they saw or witnesses input on computers, ask them how close they were and what they actually viewed. They will never have an answer. Then comes the motion to strike the prior testimony as being without foundation and based on hearsay. (also possibly a relvance objection followed by motion to strike).

In the cases I have won, the judge typically sustained by objection granted my motion to strike the preceding testimony but left room for the case to proceeed. Then the finding of fact and conclusions of law are that the Plaintiff or Beneficiary failed to produce sufficient evidence to establish their alleged claim of right to administer any alleged unpaid loan account, or to collect money — or enforce the putative lien.

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Filed under: boarding process, CORRUPTION, discovery, Discovery -Subpoena, evidence, Fabrication of documents, foreclosure defenses, foreclosure mill, hearsay, Judicial notice, jurisdiction, legal standing, prima facie case, Servicer, TRIAL OBJECTIONS, trial strategy | Tagged: judicial notice | 3 Comments »

CT Supremes Slam Bank of New York Mellon and Clarify Law in Favor of Homeowners

Posted on February 7, 2023 by Neil Garfield

The named defendant’s petition for certification to appeal from the Appellate Court, 202 Conn. App. 540, 246 A.3d 4 (AC 40959), is granted, limited to the following issues:

“1. Did the Appellate Court correctly conclude that the named defendant’s challenge to the plaintiff’s standing to prosecute this action, and, thus, the trial court’s subject matter jurisdiction to adjudicate the matter, represented an improper collateral attack on one or more of the earlier judgments rendered by the trial court in favor of the plaintiff? [ANSWER WAS NO, THE LOWER APPELALTE COURT WAS WRONG. THE EFFECT IS BINDING ON ALL CONNECTICIUT COURTS AND PERSUASIVE ON ALL OTHER COURTS]

“2. If the answer to the first certified question is ‘no,’ should the judgment of the Appellate Court be affirmed on the alternative ground that the trial court properly had denied the named defendant’s motion to open, in which the named defendant claimed that the trial court lacked subject matter jurisdiction.” [ANSWER WAS NO, APPELLATE COURT DID NOT CORRECTLY CONCLUDE THAT THE HOMEOWNER’S ATTEMPT TO REOPEN THE CASE SHOULD HAVE BEEN SUMMARILY DENIED]

Bank of New York Mellon v. Tope, 339 Conn. 901 (Conn. 2021)So, as you can see, the tide is turning, not only in the state of Connecticut, but across the country. Judges are beginning to consider an even inquire as to the reason for so many anomalies in the switching of names of servicers, claimants and attorneys.

This case stands for the proposition that standing is standing. I did the court has jurisdiction, or it does not. If the court has no jurisdiction, anything it does, with the case is void ab initio. No court can arrogate jurisdiction onto itself. This is only done by statute. No interpretation of statute can create jurisdiction.

This case stands in direct contradiction to thousands of cases across the country.

In one form or another, courts have been bending over backward to find for the named claimant, as represented by counsel of record, regardless of the absence of any facts or evidence that corroborate the position taken when the lawyer initiates a foreclosure action.

This has resulted in millions of windfalls, each worth an average of $300,000. People think that the Madoff scandal was the largest economic crime in history. Viewed from the perspective of false claims of securitization (sale of an unpaid loan account), the Madoff scandal, even in gross amount, was worth less than 1% of the gross amount of what was taken in by Wall Street banks.

This was caused by a familiar pattern of conduct that forms the essential reason for having appellate courts and then a supreme court. Trial judges, under pressure to clear the docket or because of their own bias, frequently make a decision and then listen to the evidence and arguments in search of a rationale to support the decision that was reached before the case even began.

It is disappointing to see that the only case that seems to have cited this case, as the controlling authority was decided against the homeowner because of this specific fact pattern that is recited in the case. But I think the question is deeper than that. I think the homeowner asked the wrong question. Pennymac Corp. v. Tarzia, AC 44378 (Conn. App. Ct. Sep. 13, 2022)

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Filed under: jurisdiction, legal standing | 3 Comments »

Why the CFPB Announcement is Very Important

Posted on May 2, 2022 by Neil Garfield

when the time comes that a judge enters an order or judgment containing findings of fact, for example, that the records of the designated “servicer” are not business records that are not exempt from the hearsay rule, the poop will hit the fan.

I received multiple emails from lawyers and homeowners who were confused when I posted an article about the latest CFPB announcement. Most people are not clear on why this announcement is so important.

I can say this — the lawyers who represent “industry actors” are sending up flares about this announcement. See the Troutman Pepper Analysis. The end result SHOULD come in two parts:

a restructuring of all homeowners transactions in which the homeowner agrees to accept a virtual creditor instead of a real one, a virtual loan account instead of a real one, and a set of risks that are disclosed to the consumer as required by the Federal and State Statutes governing lending practices.
reasonable compensation to the homeowner for being an “industry actor.”

Obviously, Wall Street hates that idea and will fight against it. For one thing, when all cards are laid upon the table the big banks will have many aggressive competitors offering homeowners greater incentives to sign off on the new deal. For the old ones that are considered “complete”, it will require a forced settlement with the investment banks that has the effect of greatly reducing the alleged debt. Homeowners would be forced to accept the reformation of their “simple” loan transaction.

If you read the announcement closely, you will see that the CFPB has redefined FINTECH. And they are undermining the claims made in the name of companies that are designated or labeled as “servicers.”

They are treading carefully, but it is now abundantly clear to the agency that the companies that most people believe are servicing their accounts are simply being used as fictitious names for third parties.

It will take a while for this to sink in. And there is more that the CFPB can do to reinforce this message. But when the time comes that a judge enters an order or judgment containing findings of fact, for example, that the records of the designated “servicer” are not business records that are not exempt from the hearsay rule, the poop will hit the fan.

Those records are the only thing that the dark side has to establish the existence of an unpaid debt and a creditor. U.S. Bank, N.A. for example does not receive documents or money out of the cash flow created by transactions with homeowners. The allegation, assertion, or claim has always been that it had “constructive possession” because the company that was named as the “servicer” had received the original documents.

White will be revealed and highlighted by the policy announced by the CFPB, is that the named servicer does not receive any money or any documents. Instead, there are fabricated documents from which one might assume or presume that money and documents had flowed to the company that was named as a “Servicer.”

Even if such companies, like Ocwen for example, came into actual possession of an original note (unlikely because notes are routinely destroyed contemporaneously with closing), it would mean nothing because they don’t have the right to enforce. People tend to forget the second part of the lawyers seeking Foreclosure use a variety of tactics to paper over that fatal deficiency.

Wall Street investment banks invented a circuitous route to get around this fatal defect. They use documents that are labeled as “power of attorney” or they use the pooling and servicing agreement.

The named plaintiff or beneficiary in a foreclosure is usually named as a bank not on its own behalf but as trustee of a named trust which may or may not exist. But neither the bank nor the trust maintains any accounting records reflecting ownership of assets consisting of obligations of homeowners.

In plain language, this means that the Foreclosure mill is making allegations, assertions and argument regarding the existence and identity of a creditor owning the alleged obligation of the homeowner, but there is no testimony, exhibit or any evidence that those assertions are true. Pressed further, the inevitable conclusion is that they are not true.

Therefore the appointment of a company that is self-described as a “servicer” is irrelevant to any case in which a party is seeking Foreclosure. In plain language, the agent has no more power than the principal.

The announcement by the CFPB has Biden’s fingerprints all over it. His style is very underplayed and incremental.

You could easily read the announcement as simply the intention to examine the business of companies that are described as FINTECH. The CFPB is saying that they are not simply technology companies.

The CFPB is saying they are servicers — this puts the CFPB in direct conflict with all claims made on behalf of companies who are named as “servicers” but who perform no servicing functions in connection with the receipt, processing and accounting, and distribution of proceeds to any creditor.

When you think about what that might mean and what we already know, the outcome of that investigation and monitoring will be an administrative finding that the real servicer has not been disclosed, and that the companies who are named as servicers have no relevant business records, because they never received any payments nor made any distributions.

There is no possibility that the investigation will not lead to a question about how the FINTECH servicers are working and for whom they are doing this work.

This is a pivotal point. If the real servicers are simply contractual agents of the designated companies who are named as services, it would strengthen the position of the investment banks. But I know that the real servicers (FINTECH) are working for the investment banks, and not the bank named as trustee for a REMIC trust — nor the company named as “servicer.”

This will all lead to the inevitable conclusion that no company is actually performing servicing in the conventional sense. None of them are collecting money from homeowners and then distributing the payments to creditors. That is because of one fatal flaw and the business plan of the Wall Street securities firms. They eliminated the role of “creditor” or “successor lender” but they kept the labels.

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Nobody paid me to write this. I am self-funded, supported only by donations. My mission is to stop foreclosures and other collection efforts against homeowners and consumers without proof of loss. If you want to support this effort please click on this link and donate as much as you feel you can afford.Please Donate to Support Neil Garfield’s Efforts to Stop Foreclosure Fraud.
CLICK TO DONATENeil F Garfield, MBA, JD, 75, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more. In addition, although currently rare, it can also result in your homestead being free and clear of any mortgage lien that you contested. (No Guarantee).

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

Please visit www.lendinglies.com for more information.

Filed under: boarding process, burden of pleading, BURDEN OF PROOF, CORRUPTION, discovery, Discovery -Subpoena, evidence, Fabrication of documents, foreclosure, jurisdiction, legal standing, Servicer, sham transactions | Tagged: CFPB | 2 Comments »

How Evidence Works for and Against the Consumer/Homeowner

Posted on April 7, 2022 by Neil Garfield

(Once again, because of minor medical issues I decline to do the Neil Garfield Show. I offer this instead)

It is easy to get lost in the weeds. Don’t make up your own words or definitions because your definitions have no relevance to your case. Do hold the accusing side to their words and to the legally accepted definitions of those words as contained in statutes and cases.

But above all, start at the beginning — a rookie mistake made by nearly all young litigators and pro se litigants who skip over the gold to pick up a few pieces of copper. They exclaim “How could I lose, I have the copper!” And all the court wanted was the gold.

This post is inspired by the factual findings of several of my most generous contributors, and a hat tip to summer chic. Just because you hear a word or term don’t think you know what it means or the context in which it is issued. That is what litigation is all about.

So first I will repeat what Aristotle said. First, define your terms. I personally know what Fiserv did as a payment processor when it served to intercept and process transactions from POS and ATM devices. I know what it did when it effectively acted as Gateway for intercept processors, including itself.

Payment processing in all of its forms consists of three distinct nodes: receipt of money, data processing (recording the receipt and disbursement of money) and the actual disbursement of money. In that sense, Fiserv has always been a servicer.

So it is easy to see why the investment banks trusted FiServ to handle those functions rather than anyone else. And they did. After the Tylor Bean débâcle, they would never let a company actually perform servicing functions because that would leave open the door to stealing.

It was Black Knight who set up the lockbox arrangements (contracts) but FiServ who actually did the grunt work — receiving, accounting, and disbursing $MONEY$. Except that they didn’t really do disbursing.

Because the act of depositing the money was a disbursement. They would take a $1,000 check from Homeowner Smith and deposit it into a bank account that was owned and controlled by XYZ Capital Finance, Inc. which was either a subsidiary of the investment bank or a conduit for outflow to offshore accounts. The named “servicer” never saw or even expected to receive that money.

The reason why I am commenting on this is that this is extraordinarily important to the defense narrative for consumers. The ONLY party who may sue is one who has suffered financial injury “proximately” caused by the conduct of the party against whom he has filed suit.

I have argued for 16 years that the homeowner deserves to win. But people take that as meaningless drivel from a defense lawyer who will always say that his criminal client is innocent. So try this: you can win and why should you not? If you were facing jail would you really so blithely accept the “inevitable”?

If the homeowner fails to make a payment that appears on some schedule and Goldman Sachs loses money because they’re betting that he would make the payment, the injury suffered by Goldman Sachs is NOT LEGALLY caused by the failure of the homeowner to make a payment. GS cannot sue the homeowner for that. That bet is the same as betting on a horserace. You can’t sue the owner for losing or throwing the race.
If an investor IS getting paid regardless of whether the homeowner makes a payment or not, then they can claim no injury from the “failure” to make a scheduled payment.
- The investor who purchased a certificate is simply betting that the investment bank that issued the certificate will make the payments or cause payments to be made according to the terms of the contract that is the certificate — not according to any contract with the homeowner. The certificate parties are investor vs investment bank — not investor vs homeowner.
If an investor has no legal claim to receive payments from homeowners nor to administer, collect or enforce any alleged loan account the investor has no claim whatsoever against the homeowner — for the simple reason that the investor has chosen to have no relationship whatsoever with the homeowner in order to avoid liability for lending and servicing errors, mistakes or violations of statutes passed by the Federal and State governments — of which there were tens of millions of cases resulting in hundreds of billions in settlements, so far.
If an investment bank was counting on receiving a scheduled payment from a homeowner but had no right to receive it, it may not under current law in any U.S. jurisdiction recover money from the homeowner nor force the sale of the homeowner’s property.
If the investment bank had no legal right, title or interest to the underlying obligation, debt, note or mortgage (deed of trust) issued by the homeowner, then it had no right to administer, collect or enforce any payment set forth on any schedule — nor grant the authority to do so to someone else.
- One may not grant rights that do not belong to the grantor. If I promise to give you my jet, you will not get the jet simply because I don’t have a jet. And if you know I don’t have a jet you have no claim for my failure to deliver it.
If a company is named as servicer then unless FiServ is doing the work for that “servicer” company (under contract), then the work done by FiServ is the work of Fiserv, and only Fiserv employees and representatives can testify about what was done and what their records contain.
- Any report issued by them or based upon FiServ data must be established by foundation testimony from the records custodian of FiServ and not some robowitness employed by the company who was named as a servicer but was not performing the basic servicing functions.
- Any such report and testimony of the “representative of the named “servicer” are irrelevant, lacking in competence, foundation, or materiality.
- Such testimony is rank hearsay clearly excludable in every court in every U.S. jurisdiction — but only if a timely and proper objection is raised within the context of a coherent defense narrative.
- This is because the only thing that a robowitness can really say is that “I received this report and my boss says it is a report from my employer who I have been told by someone (I don’t remember who) is a servicer of an unpaid loan account due from the homeowner to the Greatest Bank of All Time, N.A., not on its own behalf but on behalf of the Indecipherable Trust 200x-04 ALRT-A pass-through certificates, not on its own behalf but on behalf of the holders of those certificates, about whom I know nothing.”
  - “I know nothing about the content of any servicing agreement between my employer and any creditor who has paid value or otherwise has a right, title, or interest in receiving money from the collection of payments, principal, or interest from homeowners. “
- In truth, the report is entirely printed out from data received exclusively from FiServ data processing servers and storage servers which are owned, operated and maintained by FiServ which provides services (“servicing”) to and for the exclusive benefit of investment bankers who have no legal right to administer, collect or enforce any debt.
- In truth, when the robowitness says he or she is familiar with the records of his or her employer what they really mean is that they’re familiar with a script and know absolutely nothing about the operations of their employer because their employer does not want them to know anything. (This is how many such witnesses are “blown up” on the witness stand by hundreds of lawyers across the country.)

So for purposes of this discussion, a payment processor is a company that processes payments — i.e., something that is actually happening and something that they are a direct party to witness the actual occurrence of actual events and recording them. A “servicer” is a company that services payments from the homeowner and accounts for its actions by recording data on its own records regarding said receipt.

If they have not done that, then they’re not a servicer in the conventional use of the word, even though the statutory definition for purposes of statutory liability to consumers is much broader. That statutory definition (augmented by regulation X) does not mean that they received any payments nor recorded any such receipt.

Use of that statutory definition as a basis for misleading the court about the role of the company named as servicer and the origin of the information will eventually become, in fairly short order, the subject of a series of actions by state bar associations, the FTC and the CFPB. Insurers of lawyers have already inserted sufficient cover language to deny coverage for intentional misdeeds. Since the company named as “servicer” is not “servicing” any unpaid loan account receivable (which it will be revealed does not exist) they have no right to testify about it, much less the balance or record of payments.

This is all true and but it is NOT a sign of judicial corruption to point out instances in which these particular facts are either ignored or denied by the person sitting on the bench. Their job as judges is to rule on what is brought in front of them — not what might have been brought nor what should not have been brought if there had only been an objection. The truth is that in most cases I have received I would have ruled the same way as the judge frequently accused of corruption.

Once the homeowner has effectively admitted that there is an unpaid loan account receivable exists (without any information), admits that the third party company is a servicer (without any information), and admits that the bank named is the trustee of a trust (without any information), and admits that the trust owns an unpaid loan due from that homeowner or even argues about which trust owns the loan, what choice do I have as a judge but to rule that those facts are, for purposes of the case in front of me, the facts of the case?

Litigation is about offense and defense. The purpose of defense is NOT to let the evidence in or to find ways to get it out. It is not to prove that the lawyers or anyone else are corrupt, evil, or belongs in jail. Once you make that allegation and can’t legally prove it, you will lose all credibility on the main point — defense. And that will cost you the opportunity to make a ton of money on wrongful foreclosure.

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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.

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Filed under: boarding process, CORRUPTION, discovery, Discovery -Subpoena, evidence, expert witness, Fabrication of documents, foreclosure defenses, foreclosure mill, forensic investigation, hearsay, jurisdiction, legal standing, Presumptions, prima facie case, Servicer, sham transactions, standing, STATUTES, TRIAL OBJECTIONS, trial strategy | 1 Comment »

Why the UCC Matters in Foreclosure Cases

Posted on April 5, 2022 by Neil Garfield

The problem as illustrated by many scholarly articles and articles on this blog is that courts are given to treat plaintiffs and claimants as holders in due course without anyone asking them to do so.

The first thing you need to know about Foreclosure is that it is only about money. If you have the money and you pay it, there is no claim — or at least no claim against you. You might have a claim against a “debt collector” seeking to enforce a nonexistent debt for a nonexistent claimant.

The second thing to remember is that, by definition, foreclosure is a lawsuit or claim based upon enforcement of the mortgage or deed of trust. The promissory note is usually introduced as evidence of the existence of the obligation and the duty to make scheduled payments. But enforcement of the note alone can only result in a monetary judgment that could be discharged in bankruptcy.

According to the law in every U.S. jurisdiction (adopting 9-203 UCC) the mortgage or deed of trust can only be foreclosed to satisfy an unpaid existing obligation owed by the homeowner to the named claimant. Lawyers and judges have adopted various strategies to allow foreclosures when they are only based upon the enforcement rights of a holder of a promissory note and often without regard to whether the claimant is a legal “holder.”

In fact, most courts treat the claimant as though it had established its exalted status of a holder in due course — without anyone asserting that status. And the common failure to object to such treatment is the principal reason why homeowners fail to successfully defend foreclosure actions based upon a nonexistent loan account and often even a nonexistent claimant.

In 2007, the Fordham Law review published an article entitled “Will the real holder in due course please stand up?” I republished that article later on this blog. The answer to the question, in cases where foreclosure was claimed as a legal remedy by some alleged REMIC trust structure, was that there was no holder in due course.

You’ll be surprised to learn that there have been many cases where a credible offer to pay the claim has been declined if it required confirmation from the named Plaintiff or claimant.

This is standard industry practice in circumstances where a prior “loan” is being been financed or paid off through sale or other means. Many states have laws specifically requiring that the payoff information includes such information and assurances — in order to prevent a payoff to a party with no claim. It is basic common sense and basic law to assure continuous clear title to the property free from claims of clouded or unmarketable title.

In each case where I have been involved, opposing counsel basically took the position that they didn’t want the money they wanted the foreclosure. And in each case, the judge was surprised by that position.

But most homeowners are not in a position to make a credible offer to pay off the entire amount as demanded. Those who can make that offer are utilizing the AMGAR strategy that I developed 16 years ago.

Those who cannot make that offer must litigate to make the same point — that in the final analysis (trial) the attorney for the named claimant will be unable to proffer credible evidence of the existence, ownership, and authority to administer, collect or enforce any debt.

Instead, they will proffer fabricated documents and argue that the judge should apply legal presumptions to conclude that an obligation exists, the named claimant owns it and the homeowner is in breach of a duty to make scheduled payments.

In reverse logic, the foreclosure lawyer simply takes an uncontested fact (usually) and bootstraps it into a case that the judge thinks is real. And what nearly everyone forgets is that the absence of a scheduled payment, even after making such payments, is not evidence of default nor a license to declare a default unless the payment was actually legally required to be paid to the party seeking to collect it.

If you skip a car payment I have no business, right or justification in declaring that to be a default. But current law is hazy on the subject of what happens if I do declare the default and then bring a claim based upon my declaration of default and my claim that I represent the loan company.

In a 2016 article just brought to my attention that was published by Franklin Pierce School of Law of New Hampshire University, a lawyer in Miami published an article about the nonconforming use of the UCC to support nonconforming claims. At the time of publication, he was associated with a Florida law firm representing lenders. 14 U.N.H. L. REV. 267 (2016), available at http://scholars.unh.edu/unh_lr/vol14/iss2/2.

See

The Non-Uniform Commercial Code: The Creeping, Problematic Application of Article 9 to Determine Outcomes in Foreclosure Cases

Morgan L. Weinstein

Senior Attorney at Van Ness Law Firm, PLC, Miami, FL

The Non-Uniform Commercial Code_ The Creeping Problematic Applic

Weinstein makes a clear presentation of fact and law with respect to the application of UCC Article 3 (notes) and Article 9 (Security instruments, mortgages deeds of trust etc.).

Keep in mind here that a holder in due course (HDC) is ONLY one who has paid value for the ownership of the note in good faith and without knowledge of the maker’s defenses. In plain language, the HDC can enforce even though there are potentially many defenses that would be available to the maker of the note if the claimant was merely an alleged “holder.”

In every instance where a REMIC trust structure is alleged, there is only an allegation or assertion that the “trustee” or trust is a holder, not a holder in due course. Earlier (2001-2005) assertions of HDC status were removed from the script.

Also, keep in mind that a legal holder of a note has two attributes: POSSESSION and RIGHT TO ENFORCE. The latter is overlooked. The only party with the power to grant the right to enforce is ultimately the creditor who owns the underlying obligation.

So the claimant attempting to enforce a note may file a complaint (and win a judgment if there is no contest) based upon the technical allegation that it is a “holder”. But it still loses at trial or summary judgment if it fails to respond to discovery requests asking for the source of its authority to enforce (given that they are not a holder in due course).

The problem as illustrated by many scholarly articles and articles on this blog is that courts are given to treat plaintiffs and claimants as holders in due course without anyone asking them to do so. Although I have seen many transcripts in which the lawyer Argues that his “client” is a holder in due course without any reference to payment of value in exchange for ownership of the debt, note or mortgage.

Such “misstatements” are protected under the doctrine of litigation immunity unless you can prove that the lawyer speaking absolutely had knowledge that he or she was lying when the statement was made.

He begins with a discussion of negotiability:

Negotiability presents the possibility of a transferee taking a position that is better than the transferor.The Uniform Commercial Code defines a number of different possible parties to a negotiation. There are three general positions that a transferee can occupy in a transfer under a negotiable instrument: the transferee can occupy a better position, a same position, or a worse position, with each position being relative to the transferor. [e.s.]

Typically, lenders in foreclosure actions occupy the same or worse position, given their frequent status as a “holder,”rather than the better position of a “holder in due course.”

Under Article 3, a “holder in due course” occupies a privileged position.Specifically, a holder in due course is insulated from numerous defenses to the right to enforce an instrument. A holder in due course is susceptible only to the “real defenses” of a borrower or other interested party.The real defenses include claims of infancy, essential fraud, insolvency, duress, incapacity, or illegality.Though there is an assumption of good faith in Article 3 dealings,a holder in due course is still protected from many defenses to the right to enforce.

Weinstein makes the following point, though:

it is generally understood that a note-holder may foreclose a mortgage, and a plaintiff need only establish entitlement to enforce the note in order to demonstrate its ability to foreclose the incidental mortgage; such a plaintiff need not demonstrate ownership of the note.

Although he correctly states the current status of legal consensus, this statement overlooks the issue presented above — that the right to enforce emanates solely and ultimately from the creditor owning the underlying obligation. Otherwise, the whole concept is meaningless.

The prima facie case of the claimant need not prove that line of authority and grants but the defense can undermine and eliminate the prima facie case if it can be shown that the claimant has not received such authorization or that the claimant cannot produce evidence of such authorization in discovery and even under court order in the discovery process.

Thus whether one relies on Article 3 or Article 9 the UCC result is the same: there is no remedy of foreclosure for a party who has not paid value for the underlying obligation or at the very least can show the foreclosure sale will be used to pay the creditor owning the underlying obligation thus reducing the alleged loan balance.

This goes to the root of foreclosure. Nobody in the courts would agree that anyone with knowledge of the original transaction with a homeowner should be allowed to enforce a contract to which he she or it was not a party. And if the proceeds of a foreclosure sale are not intended to decrease the loan account receivable of a creditor who paid value, then there can and should be no foreclosure or any other claim for that matter.

As far as I can determine, contrary to the belief of most lawyers and judges, there is no single instance where the forced sale of residential property in which the claimant was an alleged REMIC trustee, for an alleged REMIC trust resulted in payment to anyone who was owed the money. In fact, there is no single instance in which the alleged REMIC trustee or the alleged REMIC trust even received one single penny at any time.

My conclusion: all alleged REMIC trust structures are basically trade names (fictitious names) for the investment bank. None of them ever see a penny of payments received from homeowners or their homes.

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Filed under: CORRUPTION, evidence, expert witness, Fabrication of documents, foreclosure, foreclosure defenses, foreclosure mill, jurisdiction, legal standing, MBS TRUSTEE, Pleading, Presumptions, prima facie case, Servicer, sham transactions | Tagged: Article 3 UCC, article 9 UCC | 2 Comments »

“Payment History” is not the loan receivable account

Posted on February 2, 2022 by Neil Garfield

The payment history is not the loan receivable account by definition and it is never presented as such. Failure to recognize this obscure fact often results in failure. But those who do understand it, raise their chances of a successful defense from unlikely to very likely.

A lawyer (Scott Stafne) shared with me a case that he is apparently working on. This case is interesting because the lawyer for the homeowner has filed the final round of motions in the discovery cycle, which is a Motion in Limine — i.e., a motion to limit testimony from the sole robowitness expected to testify at trial. The basis of the motion is that the witness has no knowledge as to the past “servicers” and therefore cannot testify to any balance due.

But the courts have stretched themselves out on a limb to allow the foreclosure mills to introduce evidence that would never be permitted in any criminal trial and would only be permitted in civil trials if there was a proffer of corroborating evidence that would round out the obvious gaps in the testimony of the witness and the completeness of the exhibit.

BULLETIN: The payment history is not the loan receivable account by definition and it is never presented as such. The testimony in court nearly always skips the calculation of prior credits and debits (like disbursements to creditors) on the books of the servicer and the corresponding accounting entry on the books of a creditor. that is because there is no loan account receivable on the books of any party named as a creditor. And if it is not the loan account receivable, the Payment history is not evidence of the balance due as shown on the books of the creditor.

The lawyers who say they are representing Chase Bank probably have never spoken with or communicated with anyone at Chase. But they are right in their argument. The current rules concerning business records create a loophole that the banks have been charging through since the inception of false claims of securitization of debt (“Loans’).

What is interesting is that the case is now potentially set up to raise an objection, to wit: While the “witness” need not verify the records of previous parties regarding the “loan account”, it is the loan account that must be produced and not just a report on payments. The loan account would have a record of all credits and debits including disbursements to creditors if any. In the absence of a custodian testifying and proffering a copy of the loan account receivable — from the books and records of the creditor — (or the original accounting ledger) the balance cannot be known by the court.

Like virtually all transactions with homeowners, this case presents a “private label” case founded on the securitization of the “loan.” At this point, very little money exchanges hands in any transaction with homeowners because the applicants for loans are steered to a common securitization infrastructure. This leads to reports of funding without any money actually exchanging hands assuming there is a prior mortgage.

My point is this: the nature of securitization requires that the apparent loan account receivable be extinguished. This event generally occurs contemporaneously with the “closing” of the transaction.

The securitization plan calls for the sale of securities that are NOT tied to ownership of any debt, note or mortgage and are not backed by any debt, note or mortgage.

By freeing the sale of securities from the necessity of issuing securities representing shares of debts or pools of debt, the investment banks are able to sell multiple iterations of securities and secure a large yield spread premium that arbitrages the difference between the sales proceeds of securities and the transaction cost with homeowners, each time.

By steering homeowners toward a common base securitization infrastructure, the cash paid out at the “closing” with the homeowner is vastly reduced, thus increasing the amount of the yield spread premium to nearly 100% of the amount of the fictitious transaction with the homeowner.

The homeowners only know that the mortgage lien and note from one “transaction” were “satisfied.” They have no access to information that would inform them that each successive transaction creates a new tree of securitization representing nearly 100% profit for each successive round of sales of securities — this provides them with an average of 1200% return on each stated transaction with homeowners, wherein such transactions are repeated as many as 4-5 times.

None of these receipts are credited to any loan account receivable on the accounting ledger of any person or business entity. The credits do not appear because there is no record of a loan account receivable and nobody at any of the companies or entities brought forward in foreclosure has any access to such information.

Hence, the success of objections in court to the effect that the “Payment History” is not the loan account receivable that reveals the balance due, combined with the absence of any documents or person verifying that the company named as servicer is acting on behalf of a bank or business entity that claims to own the underlying obligation, frequently results in the objection sustained.

And even with a continuance, the lawyer for the claimant cannot produce the loan account receivable because it does not exist. Accordingly, the lawyer cannot argue any actual or imminent financial damage caused by the behavior of the homeowner. And that fact undermines the authority of the court to even hear the case.

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But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.
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Filed under: BURDEN OF PROOF, CORRUPTION, evidence, Fabrication of documents, foreclosure mill, investment banking, jurisdiction, legal standing, prima facie case, Servicer, sham transactions | Tagged: discovery and evidence foreclosure litigations, motion for sanctions, MOtion in Oilmine, MOTION TO COMPEL | 3 Comments »

You Can Use This As a Template for How I Would Respond in a Discovery Dispute — Especially with Wells Fargo, Fannie Mae and Wachovia as the Originator

Posted on December 14, 2021 by Neil Garfield

In a dispute between the attorney for the homeowner and the attorney for the alleged “lender”, there are a number of devices that are nearly universally applied across the country in order to ridicule and defeat the homeowner. The more you are aware of them, the better you will be prepared to deal with them.

Opposing counsel is instructed to accomplish several things (winning being the last of the things on his or her menu). First, the idea is to undermine the confidence of the homeowner and to undermine the confidence of the lawyer for the homeowner in any defense to the foreclosure. They do this by several tricks.

The main one is offering cash for keys. This says “You know we will win and you don’t have a chance, so get out now and we will pay you a couple of thousand dollars.” By doing that, they give the impression that the case has been evaluated and that the offer is somewhere within the realm of reasonability given the probable outcome. It isn’t and all my cases start this way — especially the ones where the judgment was entered for the homeowner.

The next one is offering modification which is basically saying “OK, if you recognize this transaction as real, we will offer you different terms.” The initial offer of different terms is virtually no change at all in the original terms but it gives hope that there will be a breather between now and when they return to foreclosure mode. It is about as attractive to the homeowner as the cash-for keys deal.

If you stick to your guns the offers will improve; most homeowners end up not resisting an offer that they think gives them enough relief that it isn’t worth proving or revealing that there is absolutely no corroborating evidence in the form of testimony on person knowledge, documents or receipts that support the apparent facial validity fo the documents being used to fabricate a claim against the homeowner on a non-existent loan account receivable.

Just be aware that acceptance of any offer in most instances is doing business with a thief in exchange for returning stolen property. From the point of view of the thief, he or she worked hard for that property and is entitled to compensation for the work performed. Anything less than that is a loss and if given the chance they will even sue for it. None of that is law but anyone can use legal process, even to make false claims. Such claims are deemed true unless properly contested.

So in a situation where the case is almost over the lawyer representing the homeowner is still hammering away at enforcing discovery.

The opposing lawyer is characterizing the effort as a desperate attempt to escape a legitimate debt and a using the lawyer and the homeowner of vexatious litigation —- i.e., using legal process improperly to gain an undeserved legal advantage. in other words, the attorney for the financial industry is accusing the homeowner, who has virtually no resources, of doing exactly what the foreclosure lawyer has done is continuing to do because he or she has the full backing of companies with infinitely deep pockets.

Discovery has been served and the response was objection and motions for protection. The homeowner’s lawyer filed a motion to compel compliance with the rules of discovery. The foreclosure lawyer filed a response saying that the homeowner was trying to relitigate the case, in a desperate attempt to avoid the inevitable loss of possession of the property using vexatious litigation strategies.

Here are my notes, with some edits:

I see several issues with the response filed by opposing counsel.

I doubt that counsel has any written or oral authority to represent Fannie Mae that was granted by Fannie Mae.

Fannie Mae would not hire the law firm unless they were making the direct rerpesentation ot the lawyer that they were in fact the owner of the properrty which title had been legally acquired. Since Fannie knows taht its name is being used in vexastious litigation against homeowners that reuslt in forecloure sales wherein the money proceeds are never paid to Fannie {same as REMIC trustees}, it would not make such a declaration and it would therefore never directly hire the law firm.

And if push came to shove, I am virtually certain that anything represented in court to have been on behalf of Fannie Mae would be subject to Fannie claims of plausible deniability.

But it is extremely difficult to raise this issue and get any traction directly. If there is a mediation Conference you may have an opportunity to ask about authority and then file a motion for sanctions for failure to appear. But I don’t think that this is possible at this stage in litigation.

There is a growing national use of the attempt to squelch challenges by accusing the homeowner of vexatious litigation. These are actually being taken seriously by judges who are anxious to move cases off their docket. You need to be very careful about this issue. There is a recent case where the vexatious litigation issue was defeated by the homeowner without the assistance of counsel in California. But there are plenty of cases out there and which judges referred to a vexatious litigant which in all cases means a homeowner or the lawyer for the homeowner. Vexatious is anotehr word for annoying, so you need to reframe that. This idea exists because of the presumption that the conclusion is already known and is inevitable. That conclusion is based upon a faulty and erroneous understanding of financial innovation from Wall Street that occurred 25 years ago.

The pleadings filed by opposing counsel follow the playbook for the nation. It contains a recitation of facts or implied facts that only exist because of legal presumption arising from the apparent facial validity of documents that are uncorroborated, together with the effect of the presumptive validity of court orders that have previously been entered.

Although we should always be careful about picking our battles, we should never accept or even suggest that we are accepting or ignoring the recitation of facts that are untrue and unsubstantiated.

The first thing you need to deal with is that you are entitled to discovery and the discovery is intended to reveal rather than obscure relevant issues. But it is opposing cousnel’s instruction to obscure and refuse to reveal anything. As usual they will accuse the hoemowner of doing exactly what they are doing.

It might be worthwhile to articulate that the defense narrative is based upon in-depth investigation, research, and analysis from experts in the securitization of debt — And that they have expressed the definite opinion that nearly everything assumed by opposing counsel in his opposition to the motion to compel discovery is not only uncorroborated but also untrue.

The entire case presented against the homeowner rests completely on uncorroborated presumptions regarding the existence and transfer of an alleged obligation owed by the homeowner to Wells Fargo bank and then Fannie Mae.

While there is ample evidence of a merger between Wells Fargo Bank and Wachovia, the originator of the transaction with the homeowner, there is no evidence whatsoever that Wachovia ever transferred any interest and the transaction that had been conducted with the defendant homeowner.

The fact that there has been a merger does not mean that we know the terms of the merger or that anything relating to the defendant homeowner was included in the terms of the merger.

There is nothing corroborating the presumption that Wachovia was the owner of a loan account receivable on accounting ledgers owned and maintained by Wachovia at the time of the merger, much less that Wachovia intended a transfer of ownership of the loan account to Wells Fargo bank.

Indeed, the experts report that it is a common practice of Wells Fargo bank to assert its ownership over the loan account at the beginning of a foreclosure action and then to admit later that it is only a servicer.

But its role as a servicer is also uncorroborated and probably untrue. The fact that it produces reports does not mean the data or the report was generated as a result of receipts and disbursements by Wells Fargo bank to or from any debtor or creditor.

And obviously if Wells Fargo employees did not actually receive and disburse money relating to a loan account receivalbe, they could not have recorded such receipts or disbursements with personal knowledge. These are the issues that are being explored by the demand for discovery.

If the defendant homeowners defense narrative is correct, then the fact that she had lost in litigation, is merely an assertion of conclusions previously reached by a court that had been misled by counsel.

Opposing counsel seeks to argue that the defendant homeowner is not entitled to any answers because of the production of documents. But those are the precise documents that defendants experts assert as memorializing nonexistent transactions. Defendant hoemowner is merely testing them through disvovery. If they are not true they should never have been presented and a fraud has been committed upon the court. The foreclosure porocess, sale and now demand for possession must be dimsissed and vacated as the may be.

The unwillingness of opposing cousnel to provide a direct response to direct discovery demands is a tacit admission that counsel is unable or unwilling to provide corroboration that transctions supposedly emorialized on the documents presented to the court and relied upon by the court

Opposing counsel keeps referring to a “mortgage loan” when he should be referring to mortgage documents. Defendant homeowner admits to executing mortgage documents, but now, based upon factual investigation and research, denies the existence of a loan account at any time material to these proceedings.

Opposing counsel seems to be aware of the problem and is attempting to curate by constantly referring to “the mortgage loan” rather than “The mortgage documents.”

Experts for the defendant homeowner have revealed that Wachovia was primarily engaged in the origination of transactions with homeowners and perspective on motors for the exclusive purpose of supplying data to investment banks for the sale of securities. In this process, the loan account was retired because it was paid off contemporaneously with the closing of the transaction with the defendant homeowner.

If the loan account was not retired in a securitization process then defendant homeowner concedes that the foreclosure was properly executed. But if it was retired then the foreclosure was not properly executed.

The supposed presence of Fannie Mae gives rise to the presumption that the transction is and was always subject to claims arising out the issuance of securities, d epsite the fact that such securiteis offered now ownership in any alleged liability, obligation or debt owned by the homeowner.

There is no evidence that Fannie ever paid value in exchange for ownership of the underlying obligation as requried by statute as a condition precedent to enforcement. This is also required for jurisdicition (see below).

The discovery demanded by the defendant homeowner seeks to clarify this issue. If in fact the alleged obligation was purchased and sold on the secondary market or otherwise subject to a transaction in which no loan account survived on an accounting ledger of any company, it follows that nobody suffered any financial loss arising from ownership of such an account, despite various attempts to collect money from the defendant homeowner.

Such a true fact pattern defeats the constitutional requirement for case and controversy and the jurisdiction of any court to hear the case much less dedicate anything. It also follows that no party claiming to represent or implying representation of a creditor owning the nonexistent loan account, could have any authority to declare any default, nor any authority to claim the right to administer, collect or enforce any alleged obligation arising from the nonexistent loan account.

Opposing counsel is correct when he refers to the desperation of defendant homeowner. She is anxious to retain possession and to regain title to a homestead that was putatively taken based upon false and misleading representations made to her and the court. Anyone faced with losing their homestead or their property and their lifestyle would be desperate to foil the attempt. It is up tot he court to rasie cofndience that if the attemopt succeeds it will be to pay a party who will receive the proceeds of forced sale and then apply those sums to reduce the loan account receivable. This is not the case at bar.

Defendant homeowner merely seeks answers to the most relevant questions that could possibly exist in a foreclosure action. Was there an existing loan account receivable maintained on the ledger of Wells Fargo bank or Fannie Mae at the time that the default was declared and the action for Foreclosure was commenced? If the answer is no, then the court was misled and entered orders and judgments that are voidable or subject to being reconsidered and vacated. If the answer is yes, then the dispute is over.

Opposing counsel is concealing his contempt for court process by clever wording accusing and characterizing the attempts by the defendant homeowner to reveal the ruth as repeated attempts by the defendant homeowner to relitigate the case based on the same facts. This is not true.

Defendant homeowner wants to reveal that there were no corroborated facts presented in support of the claims against her and that in fact no such facts could have been presented because they did not exist.

She seeks to determine the nature and status of the transaction that was originated in 2006, and the claims arising from implied transfers that were never documented but are presently argued before this court.

Not even teh merger agreement has been proffered (much less ordered and accepted) into evidence nor any testimony or affidavit from any witness with personal knowledge that the alleged merger effectively and intentionally transferred the ownership of the subject alleged transaction balance (i.e., the loan account receivable) from Wachovia to Wells Fargo.

Opposing counsel absolutely refuses to simply say or even argue that Wells Fargo was the creditor who owned the loan account receivable or that FNMA had any financial interest in the transaction as owner of the transaction conducted with the defendant homeowner in 2006.

Dodging the question does not make the question wrong. Nor does it imply that that answer is obvious. Opposing counsel is arguing a narrative that has no corroboration in any evidence consisting of testimony from any competent witness with personal knowledge, or any document that can survive any scrutiny when tested for validity as to representations of a transaction such as purchase and sale of the alleged underlying obligation as required by Article 9 §203 of the Uniform Commercial Code adopted verbatim under state statutes.

The alleged possession of the promissory note is in fact, as opposing counsel has argued consistently, sufficient to obtain a money judgment on the note.

It is also sufficient for the court to infer that the holder of the note is the owner of the underlying obligation for purposes of pleading in a foreclosure action.

But in the proof of the matters asserted, it does not rise to the level of a prima facie case establishing such ownership when the court conducts a final hearing on the evidence.

Possession of the note is an exception to the rule that the holder may obtain judgment without any financial loss to the note holder being stated or proven.

In such cases, it is enough to establish that the maker of the note failed to make a scheduled payment.

But the Article 3 UCC exception does not remove the basic underlying Article 9-203 condition precedent to enforcing a security isntrument (mortgage). The mortgage may not be enforced without paying value for the underlying obligation. The protection of homestead rights is inviolate and may (under current law) only be subject to forfeit in the event that the owner of the underlying obligation is the complaining party.

In the case at bar, the complaining party neither (a) alleges nor proves such ownership of the underlying obligation nor (b) alleges or proves that anyone is or was a holder in due course — which would mean by definition that it had paid value for the underlying obligation (or at least the note)

The legislature has spoken and this court has been led to believe that the statute has been satisfied. Upon solid information and belief nobody who has been represented as being the complaining party either did or could have satisfied the condition precedent in state law adopted Article 9 §203 UCC. This was concealed from the court and from the homeowner. If it isn’t true then no judgment, no sale, and no demand for possession should be granted.

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Neil F Garfield, MBA, JD, 74, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.

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But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.
Yes you DO need a lawyer.
If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.

Please visit www.lendinglies.com for more information.

Filed under: burden of pleading, BURDEN OF PROOF, discovery, Discovery -Subpoena, evidence, expert witness, Fabrication of documents, jurisdiction, legal standing, MODIFICATION, Mortgage, prima facie case, sham transactions, standing | Tagged: Fannie MAe, vexatious litigation, Wachovia, Wells Fargo | 3 Comments »

Homeowner’s Dilemma and Pro Se Nightmare: Wanting the system to change is not the way to win a case

Posted on January 6, 2021 by Neil Garfield

Homeowners win because there is no legal claim against them. But they will lose every time if they fail to establish the inability or unwillingness of the foreclosure mill to come up with concrete evidence that there is, in fact, a loan receivable entry on the accounting ledgers of the claimant and that it got there by virtue of a real-world transaction in which value was paid for the underlying obligation.

Unfortunately, as we all know, all perjury and fraud upon the court is illegal but always allowed unless it is challenged in a timely and proper way. We need to change the rules and the preapproved form pleading such that the main element of the playbook of the banks can be defeated. The main element is to force the homeowner Into a position where the homeowner must expend huge quantities of time, money, and energy defending a frivolous claim.

Their goal is to wear out the homeowner and the homeowner’s attorney. And they are using this strategy because it works. Over 96% of all foreclosures proceed by the default of the homeowner, to wit: they simply assume that everything alleged against them is true and they walk away.

The rules and preapproved form pleading are focussed on judicial economy and finality — i.e., how to quickly bring a dispute to final and complete resolution. They must start somewhere and in our system, they start with the claim. In most situations, the system requires a judge to treat the claim as true for most of the proceeding unless there is something obviously wrong that is clearly and indisputably known and demonstrated.

Claiming that aliens from the planet Zorcar gave you the assignment of mortgage would be an exception to the rule. Your claim will not be accepted as true under the rules unless you claimed (and attached exhibits) also to have proof that aliens were involved, that the planet Zorcar existed, and that they were the owners of the underlying debt. Since your premise is outside of the normal knowledge of any reasonable person or lawyer or judge, it would be dismissed for lack of credibility — because in the absence of your allegations that you did have such proof, the presumption in that situation would be that you had no way of proving it.

In most of the small percentage of cases where homeowners contest the Foreclosure both they and their attorneys are seeking only delays in what they think is an inevitable result. So no real effort is made to reveal the fact that the attorneys in the Foreclosure Mill have absolutely no concrete evidence to support the claim they are advocating on behalf of entities that probably don’t exist. And in most of those cases, the homeowner admits that the “loan” exists, that the obligation exists, that the obligation is owed to the claimant, etc. In doing that, the homeowner falls into a trap. Once all of those facts are admitted by the homeowner, the defense becomes “yes, but” which rarely works.

It is only where homeowners are unrelenting in their contest of the f foreclosure and where they follow the rules on discovery, motions enforcing discovery, objections, and cross-examination that the homeowner wins. They win because there is no legal claim against them. But they will lose every time if they fail to establish the inability or unwillingness of the foreclosure mill to come up with concrete evidence that there is, in fact, a loan receivable entry on the accounting ledgers of the claimant and that it got there by virtue of a real-world transaction in which value was paid for the underlying obligation.

You might not like that answer but it is perfectly correct and true. Your only chance of winning these cases is by excepting the fact that the rules apply and that the judge is bound to follow them. You can use the rules against your opposition and reveal the fact that there is no concrete evidence for the basic elements of their claim. But if you fail to do that, the rules favor party that makes the claim. That is not just true in foreclosures, it is true in all civil cases.

If you want an analogy, think about a murder case. Everyone knows that it is against the law to kill somebody. And yet the murderer will go completely free without any damage to his reputation Or without any damage to his record and without any loss of freedom — unless someone catches him, charges him, shows probable cause, gets a conviction, and wins on appeal.

Homeowners must realize that is the essence of their defense is closely related to criminal fraud. That is never going to be presumed to be true at the beginning of the case. In our system, or people who are accused of such illegal behavior are presumed innocent even if they have exhibited a pattern of illegal behavior in the past. It is an age-old problem That in individual cases people are offended that such offenders go free. We could debate the philosophy behind those rules but we cannot debate the fact that those rules exist.

It is unfair that homeowners must master the rules of court in order to defend themselves against frivolous claims. While they are allowed to represent themselves in court they have no idea how to do that. They walk into court believing that being right is enough. It isn’t enough and it never is. So they will most often lose cases that a good trial lawyer would win. Or they delay hiring a lawyer until it is too late for the lawyer to do anything constructive under the rules.

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Neil F Garfield, MBA, JD, 73, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.

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But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.
Yes you DO need a lawyer.
If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.

Please visit www.lendinglies.com for more information.

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Filed under: burden of persuasion, burden of pleading, BURDEN OF PROOF, discovery, Discovery -Subpoena, Eviction, evidence, Fabrication of documents, foreclosure, foreclosure defenses, forensic investigation, jurisdiction, legal standing, Pleading, Presumptions, prima facie case, TRIAL OBJECTIONS, Unlawful Detainer | 4 Comments »

What Happened With Your “Loan” — By admitting that you received a loan you lose.

Posted on December 16, 2020 by Neil Garfield

The plain truth is that homeowners are losing their cases through assymetry of information. They think they understand when they do not have a clue. They are admitting the obvious, which turns out to wholly untrue. In so doing they give the court no choice but to enter judgment aganst them.

ApplicationForLoanProcessAndFundingOfServiceFees

I am experimenting with new ways to present this. If you click on the above chart you will see that the application process is actually a dead end. Nobody actually agrees to lend any money. Nobody does lend money.

Money arrives later at the “closing” table but unknown to the borrower it is not a loan. Contrary to popular belief which is based on ignorance of the actual process, no loan is sold. No obligation is sold. Nobody ever becomes the owner of any loan or obligation. Nobody records a purchase of any loan obligation. And nobody maintains any loan account receivable.

Whether it is described as a loan broker or “loan originator” (for which there is no legal definition) it is there for the fees. It is not present to participate in any loan nor does it receive any profit from making a loan. It does not share in any profit from making a loan because there is no loan. There is no lender. Calling it a lender does not make it a lender.

But you can reverse that (and lose your case) by calling it a lender in your conversations, pleadings, motions, memoranda or argument in court.

As soon as you have done that, for purposes of that case, you have admitted the existence of the loan.
In so doing you have tacitly admitted that the loan broker or the originator was the lender.
In admitting that there was a lender you have identified the lender as the loan broker or originator.
By doing that you have admitted that the originator had ownership of the underlying obligation.
By admitting that, you have admitted that the originator or broker paid the money that appeared at the “closing table.”
By admitting that you have also admitted that the lender — or its “successor” — suffered an actual economic loss that was proximately caused by the “nonpayment” of the homeowner.
And so by admitting that you have admitted that the action for foreclosure is valid.

Just a word about “successors.” You will often find the word used. Sometimes “MERS and its successors.” Sometimes “MERS for XYZ and its successors.” A successor is a company who has purchased the obligation or who has purchased the company that owned the obligation. In residential transactions, there is almost no instance where such an event has occurred.

There are no successors. There are no companies even willing to pose as successors unless they are sham conduits — thinly capitalized to be thrown under the bus or thrown into bankruptcy. The way this is done is clever. Sometimes the sham is actually just a trade name masquerading as a company or a “trust.”

Trusts do not exist for legal purposes unless there is something of value entrusted to a person or company for purposes of administering that thing (res, in Latin) for the benefit of beneficiaries.

The place where many lawyers get hung up on that is that there exists an “allonge” or assignment of mortgage” or “assignment of beneficial interest” to, for example, U.S. Bank, as trustee for ABC-2006 certificates.

If you dig deep enough in discovery just under the surface you will find a “trust agreement.” The trust agreement never grants any powers to the administration of any affairs to the named trustee. So U.S. Bank is actually prohibited from doing anything with the paper that is assigned to it. In fact, you will find that it lacks the right, power, or duty to even ask what is happening in “the trust.” So labeling it as trustee is merely window dressing and does not describe any trust relationship or position. But you can change all that and lose the case simply by your own reference to U.S. Bank as a trustee, which in turn admits the existence of a trust etc.

Note that the paper “entrusted” to the trustee is not for benefit of investors who, by the ay, are not beneficiaries of the trust. the securities broker is the beneficiary. And note also that the paper transfer of an interest in a mortgage is a legal nullity in all jurisdictions unless there is a contemporaneous transfer of ownership of the underlying obligation. This is further amplified by Article 9 §203 UCC, adopted in all US jurisdictions, that requires payment of value as a condition precedent for filing any foreclosure action.

Please also take notice of the fact that the purported delivery of the original note is mostly fiction since the original note was most likely destroyed shortly after the “Closing.” But even if delivery of the original note is deemed to have occurred, the possessor is neither a holder nor anyone else entitled to enforce it unless they received a delivery from someone who owned the underlying obligation or note.

This is where the Wall Street brokers have snookered the courts, the lawyers, and even homeowners themselves. A holder is someone who has possession and has the right to enforce. The case for foreclosure fails on this point unless, here it is again, the homeowner admits delivery or fails to contest it and allows the assumption of authority to enforce to operate without rebutting that presumption through discovery.

So when U.S. Bank or Bank of New York Mellon says it is appearing “not on its own behalf” you should take them at their word. They have no interest. Treating them as though they do have an interest only leads to the same series of conclusions described above causing the court of law to conclude that your defenses are both technical and dilatory. You have already admitted the case against you — so why are fighting it? That isn’t bias. It is the standard operating procedure. Courts are not exhibiting bias when they do that. They are following orders based upon centuries of legal precedent and statutes.

I have many followers who are adhering to the untenable notion that the courts are acting out of bias or even malice. They are not — even when the judge appears irritated. You must get off that tack which will gain you nothing and lead nowhere and get on board with a defense that actually does work, based on the facts and existing law. Getting angry with me for saying that homeowners are losing their cases rather than “banks” winning the case is a failure to recognize the fact that few people are able to make sense out of the process called “securitization” — a process that never actually happened in residential transactions with homeowners.

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

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CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us. In the meanwhile you can order any of the following:

CLICK HERE ORDER ADMINISTRATIVE STRATEGY, ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection, or enforcement of your obligation. Suggestions for discovery demands are included.

CLICK HERE TO ORDER TERA – not necessary if you order PDR PREMIUM.

CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)

CLICK HERE TO ORDER CASE ANALYSIS

CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR) (PDR PLUS or BASIC includes 30 minute recorded CONSULT)

But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.
Yes you DO need a lawyer.
If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.

Please visit www.lendinglies.com for more information.

Filed under: burden of persuasion, burden of pleading, BURDEN OF PROOF, discovery, Discovery -Subpoena, education, evidence, expert witness, Fabrication of documents, foreclosure, foreclosure mill, forensic investigation, investment banking, Investor, jurisdiction, legal standing, TRIAL OBJECTIONS, trial strategy, TRUST BENEFICIARIES, trustee | 4 Comments »

Why You Need to Understand the Truth and How to Use It to Successfully Defend Foreclosure Cases

Posted on November 20, 2020 by Neil Garfield

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You don’t need to believe me. You don’t need proof that what I am saying is true. You have every right in every court to file demands for discovery relating to the existence and ownership of the debt. Ask any lawyer or any judge. They will affirm this to be true. And ask any accountant. The debt exists only if someone maintains a current ledger entry on their own books of record that shows they paid value for the underlying obligation, along with having supporting documentation (proof of payment). If they didn’t pay value then they don’t own it — under both accounting rules and the laws of every jurisdiction.

Everyone is complaining about why homeowners are not winning more cases. They all seem to have their own specific grievance theory about lawyers, judges, regulators etc. But the real problem is the homeowners themselves. They simply won’t accept the fact that a claim filed against them has absolutely no merit.

So the first thing they do is admit the existence of the debt, the existence of delinquency, the existence of default, and then they go on to explain why they should be let out of what they have already admitted was a legitimate debt that is unpaid — contrary to the agreement they signed. After losing the case, homeowners claim bias and any other theory that distracts from their own personal responsibility for their loss.

No judge is a mind reader or an investment banker. Acting as though a judge should be a mind reader or an investment banker is foolishness.

If the claim filed against you arises as a result of a claim of securitization of a debt, the claim is false. There was no securitization of debt. There was no sale of any debt. There is no authority arising from the securitization of debt. The document submitted by a self-proclaimed servicer both irrelevant and inadmissible as evidence in court — but only if a timely objection is raised. That is how the system works.

The same thing holds true when the named claimant is not a trustee. In most cases, the transaction was still the reference point for securitization, to wit: the issuance and sale of securities. And those securities were not conveyances of any right, title, or interest in any debt, note, or mortgage. So the fact that the securities were bets on data contained in discretionary reports issued by the” investment bank” posing as “Master Servicer” does not mean the debt was sold. It wasn’t. Like the supposed “REMIC Trustee” the named claimant has no loss and in fact has no interest in the outcome of litigation — except as a profiteer.

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This is reminiscent of the repeated reports to the SEC of wrongdoing by Bernie Madoff. The reports were regarded as too absurd to be true on the scale that was reported — until 10 years later when Madoff himself admitted all charges and was sent to prison. Just because a lie is a whopper doesn’t mean that it can be turned into truth. Eventually, financial historians are going to see “Securitization” for what it is — a PONZI scheme. Nothing was securitized.

It is understandable that Homeowners are a bit put off by the apparent complexity of securitization. But it becomes much simpler when you realize that securitization never occurred. The securities that were issued and sold to investors did not represent ownership of any debt, note, mortgage, or payment.

It is also understandable that homeowners are not well-versed in court procedure, the burden of proof, or the rules of evidence. And it is even understandable for homeowners to assume that their debt still exists. We can’t expect homeowners to understand what has been completely concealed from them.

Because of limited judicial resources, the courts were forced into running roughshod over the rights of homeowners — solely because of the assumption that the debt existed and that somehow the money proceeds of the forced sale would find its way into the hands of investors who had directly or indirectly purchased the transactions that were labeled as loans.

Removing the assumption of an existing debt the homeowner who properly and timely files a denial of claims and or who files affirmative defenses should be permitted to rebut the legal presumptions arising from apparently facially valid documentation and to contest the actual facial validity of such instruments.
Removing the assumption of an existing debt requires the trial court to treat discovery demands seriously rather than as an annoyance.
Removing the assumption of an existing debt requires the trial court to strictly apply existing law instead of inventing new law.

If a lawyer meets a prospective client who admits liability, the lawyer is going to look for other means to protect the client from enforcement. If a lawyer admits liability on behalf of his client the judge is going to consider technical factors in the enforcement of the liability. But the judge is not going to deny enforcement on the basis that the liability does not exist. If the homeowner and the lawyer failed to bring that issue up, then it is not an issue that will be litigated. Those are the rules. That is not bias.

There is nothing more basic to a foreclosure action than the existence and ownership of the underlying obligation. Homeowners and their lawyers have made the mistake of trying to prove the true facts of securitization or lack thereof. But all they really need to do is challenge the presumptions raised by the allegations and exhibits of the claimant — during the process of discovery. They fear this path because they fear the claim is real.

The problem is that neither homeowners nor their attorneys are going to do that. Instead, they are going to look for a magic bullet in the form of technical deficiencies of the allegations or exhibits. This almost guarantees that the judge will order foreclosure, a sale will occur and the homeowner will be evicted. How would you feel if somebody owed YOU money and they got out of it by poiinting out some minor technical deficiency?

You don’t need to believe me. You don’t need proof that what I am saying is true. You have every right in every court to file demands for discovery relating to the existence and ownership of the debt. Ask any lawyer or any judge. They will affirm this to be true. And ask any accountant. The debt exists only if someone maintains a current ledger entry on their own books of record that shows they paid value for the underlying obligation, along with having supporting documentation (proof of payment). If they didn’t pay value then they don’t own it — under both accounting rules and the laws of every jurisdiction.

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But the burden is on the homeowner to raise the objections. The burden is on the homeowner to deny the allegations and challenge the exhibits. If the homeowner fails to timely raise the issues in proper form, then the debt does exist for purposes of litigating the case — even if there is no debt in real life. Courtrooms are not real life. All courtroom decisions are legal fictions in which the judge’s finding of fact is final even if it differs from the real world. If it were otherwise, courts could not work and no disputes would be resolved — ever.

Your expectation that lawyers and judges should know about all of this is misplaced. The only people who would know this information for a fact are people like me. I was an actual practicing investment banker and I was physically present in the room when the seeds of the current scheme of securitization were discussed way back in 1970.

When I later read that someone figured out a way to separate the debt from a “mortgage-backed security” I understood completely what that meant and how it would be misconstrued by homeowners, lawyers, judges, and regulators. The Wall Street banks gambled that the sheer magnitude of their lie would overcome any objections. They were right.

But they don’t have to be right for future litigation. And that is why I am filing amicus briefs and drafting petitions for rule changes in all 50 states. Eventually, courts are going to have that moment when they realize what is going on. That day will be moved closer by you acting on what I say here on these pages.

Please Donate to Support Neil Garfield’s Efforts to stop Foreclosure Fraud.

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CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us. In the meanwhile you can order any of the following:

CLICK HERE ORDER ADMINISTRATIVE STRATEGY, ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.

CLICK HERE TO ORDER TERA – not necessary if you order PDR PREMIUM.

CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)

CLICK HERE TO ORDER CASE ANALYSIS

CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR) (PDR PLUS or BASIC includes 30 minute recorded CONSULT)

But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.
Yes you DO need a lawyer.
If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.

Please visit www.lendinglies.com for more information.

Filed under: boarding process, burden of persuasion, burden of pleading, BURDEN OF PROOF, CORRUPTION, Eviction, evidence, Fabrication of documents, foreclosure defenses, investment banking, jurisdiction, legal standing, Pleading, Presumptions, prima facie case, Servicer, sham transactions | 4 Comments »

OK Let’s Try It Anyway — Amicus Briefs

Posted on November 16, 2020 by Neil Garfield

We now have an opportunity to attack the most absurd of the decisions on 2 grounds, to wit: The first is that the decisions are wrong based upon existing judicial doctrine, statutory law, and court precedent. The second is that the decisions are wrong because the justification for bending the law is also wrong.

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I know what I said and I meant it. But I have come under a lot of pressure particularly from one person in Hawaii whose financial contributions have been a substantial factor in keeping this effort alive. So I am drafting and filing an amicus brief for filing in Hawaii and I will do the same, assuming financial support is forthcoming, in other states. I still think it is a long shot but I am also convinced that the mere filing will bring more attention to the facts.

The Hawaii case has similarities to most other cases brought by people claiming ownership or authority resulting from the securitization of debt. But in one case, the court went far off the reservation to prevent the homeowner from winning the case despite clear law in Hawaii that the statute of limitations on the obligation, even if it existed, had long run out. That is not a contested issue in the case. Hawaii is not Florida and the Bartram case does not apply. The statute has run and that is the end of it.

So the foreclosure mill invented something out of thin air. It offered up the following theory: the statute of limitations for a claim based on adverse possession expires in 20 years — obviously longer than the actual law for collecting on claims for money in Hawaii. When first raised I told my client that she need not worry about it. The theory was patently absurd. No judge could possibly rule that way. I was wrong.

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This is an example of judicial overreach on a grand scale.

First of all, adverse possession is a claim brought by a landowner. It does not expire in 20 years. It starts in 20 years — after a landowner has been occupying land owned by someone else for 20 consecutive years without interruption. A party claiming to be a mortgagee is not a landowner and there is no allegation or any facts in this case that the named “mortgagee” ever occupied or owned any land.

All of this is traceable to one fact — the nearly universal consensus about the status and ownership of the loans is wrong — but is now institutionalized by those who think they understand loans but know absolutely nothing about investment banking — much less understand the intersection of investment banking and lending. This forms the background for ultra vires actions in the courts.

There was no loan. I know, I know. If it looks like a duck etc. That duck is a hologram with no substance in the real world. The reason it looks like a loan is because it was labeled as a loan.

In most cases, it was a securities deal that was concealed from the homeowner or prospective homeowner. In the end, nobody was holding a loan account receivable as an entry on their ledger therefore nobody could claim ownership of any loan account. And that’s why supposed transfers of the loan account had to be fabricated, forged, backdated, and filled with misinformation.

Viewed from that perspective, each homeowner or prospective homeowner should have been paid compensation for their role as an issuer in the securitization scheme. Because this game was concealed we have no way of knowing what the outcome of bargaining would have been had the homeowner known that they were being drafted into a concealed securitization scheme.

But we do know the value that the securitization players used for payment to the homeowner, to wit: The principal amount of the transaction paid to the homeowner. And we now know that “at the end of the day” nobody maintained ownership of any loan, so the transaction could not be considered a loan — i.e., there was no lender at the end of the day.

Viewed from that perspective, foreclosure is an attempt to get back the consideration that they paid to the homeowner for issuing the note and mortgage, without which securitization could not have occurred. Had they been less busy trying to avoid liability for violations of the Truth in Lending Act and other federal and state lending laws, they would’ve maintained the role of creditor and therefore they would have satisfied the factual foundation to allege the existence of a loan. But they didn’t.

From the point of view of legal analysis, the landing statutes never applied because it wasn’t a loan. This was a securitization scheme from start to finish. But it never was a scheme to securitize the debt, note, or mortgage (or payments) of any homeowner. Of all of the different types of securities and contracts that were issued sold and traded, none of them conveyed any interest in the debt, note, mortgage, or payments made by anyone.

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One of the biggest problems is that both homeowners and their attorneys have accepted the labeling promoted by Wall Street. When I first started writing about the scheme in 2006 I raised the alarm that this was nothing like what it seems to be. There were no loans and there were no debts nor any owners of debts. And that is what Wall Street intended.

So there are two labels that must be rejected out of hand at the very beginning. The first is the label of “loan”. The second is the label of “Foreclosure.”

The present situation in Hawaii is mirrored in hundreds of other decisions across the country. The absurdity of some of these decisions is clear to most legal analysts. But the justification for such decisions rests on a dissociative condition: the erroneous belief that lending and securitization intersected. They didn’t. We now have an opportunity to attack the most absurd of the decisions on 2 grounds, to wit: The first is that the decisions are wrong based upon existing judicial doctrine, statutory law, and court precedent. The second is that the decisions are wrong because the justification for bending the law is also wrong.

Join with me as we undertake the effort to alter the trajectory of these decisions which effectively ratify and even Institutionalize illegal and fraudulent behavior

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Filed under: CORRUPTION, foreclosure defenses, investment banking, Investor, jurisdiction, legal standing, Pleading, Presumptions, prima facie case, Servicer, sham transactions, standing | Tagged: securitization | 7 Comments »

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

Posted on November 12, 2020 by Neil Garfield

I have spent the last six months drafting, re-drafting, editing, researching and investigating the basis for filing a brief as a friend of the court.

The basis for an amicus curiae brief is the anticipated willingness of the receiving court to admit that there are factors involved about which the judge or panel lacks adequate knowledge or understanding. The problem with foreclosures is that judges think they understand all they need to know. Hence an amicus curiae brief is unlikely to be accepted or even read. Some judges might accept it into the court file, but they still won’t read it or give it any weight.

This is very much like the whole issue of fake news. In this case, the securitization players have spent billions of dollars convincing the American public, agency regulators, homeowners, lawyers, judges and appellate judges or justices that the transaction with the homeowner was a loan. Like all fake news, the more people read it and the more often they read it, the more they believe it. Judges believe in the value of precedent — decisions made previously by other courts.

CONFIRMATION BIAS: Each judge that has allowed the claim of securitization players to go forward as a foreclosure has reinforced the false narrative that the money received by homeowners was a loan and not payment for services rendered (i.e., payment to allow personal information to be used for marketing and selling securities, and payment for execution of documents bearing the label of loan documents so that securities could be sold).

So each time another court twists some law like the statute of limitations beyond recognition in order to save the foreclosure from being dismissed or vacated, they are contributing to the growing false narrative that somehow foreclosures are reducing the loss in an account receivable on the ledger of some company that has paid value in exchange for receiving a conveyance of ownership of the underlying debt from someone who owned it.

***

But nobody has ever seen such an account. They have only seen the reports from a self-proclaimed servicer who refuses to assert for whom it is working and refuses to provide any confirmation that any money collected from any homeowner is sent to any creditor.

***

I have come to the conclusion that after months of drafting potential amicus briefs, it is a nonstarter and all that work was for naught. But that freed me to think about other strategies that might directly impact the current pandemic of confirmation bias. I think an administrative rule challenge might be that vehicle.

****

A petition to the Supreme Court of each state asserting that the current loose pleading and certification requirements reflect a bygone era in which a known creditor with an uncontested account receivable sought a remedy to offset a loss from nonpayment. In the hundreds of thousands of contested cases at least one of the principal issues raised in defense has been the true status and ownership of the alleged obligation.

A requirement that the pleading or notice explicitly must assert the identity of the party currently carrying the account receivable (in compliance with Generally Accepted Accounting principles -GAAP)— certified by the sworn statement an actual officer of that creditor would (a) narrow the issues in discovery and (b) quite possibly narrow either the number of claims, defenses or both. The availability of that officer for deposition or other discovery should be a condition precedent to allowing any evidence seeking to prove the assertion that a loan account exists or is owned by anyone.

****

The basic pre-approved pleading forms and rules allowing foreclosures should be changed to reflect the new reality — or the court must consider whether it is going to allow, without legislation, changes in the law to allow virtual creditors to make and collect on claims.

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CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)

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But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.
Yes you DO need a lawyer.
If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.

Please visit www.lendinglies.com for more information.

Filed under: burden of pleading, BURDEN OF PROOF, discovery, Discovery -Subpoena, evidence, foreclosure, foreclosure defenses, jurisdiction, legal standing, Pleading, prima facie case, standing | Leave a comment »

The elephant in the living room: Is the “free house” a windfall or simply just compensation for being drafted into a concealed securities scheme?

Posted on November 11, 2020 by Neil Garfield

SHOW ME THE LEDGER! NO, NOT THE ONE FROM THE SELF PROCLAIMED SERVICER. SHOW ME THE ONE FROM THE COMPANY CLAIMING THEY PAID VALUE FOR THE DEBT.

I have been beating around the bush too long. In my opinion, rejection of a claim for foreclosure from securitization players is not the equivalent of any windfall for any homeowner. It is merely an acknowledgment of payment for services rendered by the homeowner. The reverse is true: allowing foreclosure to securitization players results in a windfall payment to those players without any corresponding reduction of any “loan” account receivable.

If you send a QWR or DVL out, you are sending it to someone who has no relation to your loan, thus allowing the other players to claim plausible deniability for all the lies you are about to be told. The response is gibberish and in total is the equivalent of “because we said so.”

I might also add that they never assert that the loan account is owned by anyone despite their protestations to the contrary. They often do not identify the originator (like “America’s Whole Lender”) as a legal person or business entity. If it is not a legal person it cannot be a legal person who is the principal in an agency relationship with MERS. People forget that “nominee” means agent.

In lay language, the question is “who do I ask?” What is the name of the company that claims ownership of my underlying obligation resulting from payment of value?

My opinion is that they don’t say it because nobody does. And nobody says it because there is no person or business entity that has any confirmable entry on its ledgers showing payment of value in exchange for a conveyance of ownership of the underlying obligation.

****

This is not a technical objection. It is completely and utterly substantive. Without payment for the obligation, nobody can claim a loss. They can’t claim a loss because there is no loss. Without a loss there can be no remedy.

****

The securitization players offered securities to investors, the proceeds of such sales going to the investment bank who in turn distributed the money to the other players including “borrowers.” Without those securities, there would have been no transaction. But as a result of issuing and selling those securities — and then derivatives of those securities— the revenue from the sale of securities was in excess of 12 times the amount of the homeowner transaction. {Don’t ask me to justify that — ask ANYONE in the industry if that is not true}

Nobody wanted to be a lender who would then be accountable for violations of lending laws. So they made sure there was no lender. We are all going down the same rabbit hole when we refer to the homeowner transaction as a loan. It was a payment to get the homeowner to execute documents that were labeled as loan documents — a payment that had to be returned, leaving the homeowner with no compensation for his/her role in generating so much revenue.

In fact when you factor in payments labeled as “interest” the homeowner receives negative compensation. Viewed from that perspective the homeowner is paying for his own execution.

****

Everyone is shying away from the elephant in the living room. What is so bad about the homeowner getting a “free house” in the context of a larger scheme that produced so much revenue to everyone except the homeowner?

****

If it was a loan, then there would be a lender with a risk of loss and who was accountable for compliance with lending laws — particularly those requiring disclosure of compensation and revenue arising from the execution of the documents.

If it was a loan, then there would be a lender who was a stakeholder — i.e., someone who retained risk of loss and intent for the transaction to be performed and successful.

Instead, homeowners got no lender and not even a clue as to who they did business with nor the true extent of revenue and profits generated from what was in reality, simply a securities scheme with no substantive characteristics of a loan.

Instead, the homeowner was left with a nonlender who had no role in underwriting the viability of the loan contrary to the express requirements of TILA. In fact, and again contrary to the express requirements of TILA, the homeowner was left with nobody who had any stake in the viability or performance of any loan.

To add insult to injury, the securitization players had substantial financial incentives to steer borrowers into nonviable loans against which the players bet would fail — this producing even more profits.

So tell me again why this is a loan. And tell me why the compensation that the securitization players chose to give to the homeowner should not be retained by the homeowner. And while you are doing that, tell me why the consideration for drafting the homeowner into a concealed securitization scheme should not be expanded.

But don’t tell me you can foreclose and evict a homeowner just to get back the only consideration he/she ever received from you. That’s not capitalism. It is a fraud.

PRACTICE HINT: At the very start be confrontative. When opposing counsel says “Your Honor, this is a standard foreclosure,” you should interrupt and object saying that the face of the complaint or notice shows that this is not a standard foreclosure and it may not be a foreclosure at all if they can’t produce a creditor. Drill in the defense narrative wherever you can create the opportunity.

Remember that you are not just looking for securitization language. You are also looking for securitization players. If the foreclosure is on behalf of Citi, PennyMac or BofA, those are securitization players. Just because they don’t refer to securitization does not mean that they are holding a ledger showing their payment for the debt and maintenance of a current asset account against which they are claiming a loss. If you don’t understand what that means, go talk to a CPA.

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CLICK HERE TO ORDER TERA – not necessary if you order PDR PREMIUM.

CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)

CLICK HERE TO ORDER CASE ANALYSIS

CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR) (PDR PLUS or BASIC includes 30 minute recorded CONSULT)

But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.
Yes you DO need a lawyer.
If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.

Please visit www.lendinglies.com for more information.

Filed under: boarding process, CORRUPTION, discovery, Discovery -Subpoena, Eviction, evidence, Fabrication of documents, investment banking, jurisdiction, legal standing, securities fraud, Servicer, sham transactions | 4 Comments »

Here we go — the next tidal wave of foreclosures is upon us. When the moratoriums are over prepare for shock and awe (again)

Posted on November 3, 2020 by Neil Garfield

see https://www.abcactionnews.com/news/local-news/i-team-investigates/floridas-foreclosure-rate-second-highest-in-the-u-s-filings-increase-as-courts-open

The Wall Street playbook calls for an insidious process of creeping up on you. Within days, in some cases, weeks in other cases and certainly within months, people are going to wake up to the fact that they are already in the middle of a foreclosure proceeding. And the new wave will be just as destructive as in 2008.

Contrary to the party line that has been successfully advanced by Wall Street banks, foreclosure proceedings are NOT the result of non-payment. They are the result of greed.

For non-payment to be a reason to seek redress in court, the claimant must be entitled to receive payment from the person they are suing, and they must be “injured” (financially) by the homeowner’s failure to pay. In al most all foreclosures, contrary to popular belief, these elements are completely absent and no, there isn’t anyone behind some fictional curtain who is getting the money to satisfy and unpaid debt.

And yet here is what is about to happen:

96% of all homeowners who are served with foreclosure notices will walk away from the biggest investment of their lives and losing a huge asset
2% will attempt to litigate “on the cheap” looking or delay, modification or something other than simply winning against a law firm falsely representing it has a client who is proper claimant and falsely implying that if the foreclosure is successful the money will go to someone who needs it instead of just wanting it.
2% will litigate in earnest and 65% of them will win their cases because there is no legitimate claimant or claim.
The courts will largely remain ignorant about the true nature of securitization — specifically that not a single residential loan has ever been securitized.
- Building on that ignorance, the courts will erroneously accept direct or implied assertions of authority to administer, collect or enforce obligations by law firms who also lack any authority to collect or enforce.
- Many lawyers will make the same mistake, believing that the self proclaimed “servicer” has been granted any right by any party who paid value for the underlying obligation in exchange for receiving a formal conveyance fo ownership of the debt, note or mortgage.
- Discovery demands, even if properly framed and timed, will largely be ignored by everyone because of lawyers and pro se litigants’ lack fo understanding of motion practice.
The CFPB, FTC, SEC and IRS will continue to cover up the largest and most blatant fraud in human history — the creation of the illusion of a loan without any lender and without any loan account on the ledger of any company reflecting payment for the debt, note or mortgage.
Once again, wealth will be sucked out of the US economy when it is needed most in the hands of consumers who are the ONLY demographic capable of reviving and stabilizing a consumer-driven economy.

Moral of the story: It’s not capitalism if you are stealing something for the sake of grabbing money. That is and always has been grant theft.

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CLICK HERE TO ORDER TERA – not necessary if you order PDR PREMIUM.

CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)

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But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.
Yes you DO need a lawyer.
If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.

Please visit www.lendinglies.com for more information.

Filed under: CORRUPTION, discovery, Discovery -Subpoena, evidence, Fabrication of documents, foreclosure defenses, jurisdiction, legal standing, Pleading, Presumptions, prima facie case, securities fraud, Servicer, sham transactions, standing | 1 Comment »

Boilerplate Answers to Discovery Won’t Cut It. If Plaintiff does it, they lose the claim. If Defendant does it, they lose the defense.

Posted on October 2, 2020 by Neil Garfield

see https://www.natlawreview.com/article/district-court-requires-plaintiff-to-disclose-evidence-about-noneconomic-loss

I have been writing, lecturing, and just saying the same thing since 2006. Homeowners don’t need to prove anything. The objective in Foreclosure Defense is to prevent the claimant from pursuing their claim. If you are not willing to do all the necessary work and to make certain you have it right, then you are not litigating, you are complaining. The strategy is accomplished by using the following tactics:

Wordsmithing the right very specific questions and demands that go right to the heart of the case — the existence and ownership of the debt (loan account). Both lawyers and homeowners seem to be shy about doing this because they are afraid of receiving an answer they won’t like. No such response it will be forthcoming. In fact no answer will be forthcoming and that is the point. The most they can ever do is obscure and evade. They do this with objections or with the responses that are meaningless and boiler plate.
File a motion to compel along with a memorandum of law citing to relevant cases that are exactly on point.
Get a hearing on the motion to compel. At the same time get a hearing on objections raised by your opposition. Prepare an order in advance of the hearing so the judge can see exactly what you’re asking for. The order should NOT specify punishment. It should only say that your motion is granted, that the following questions must be answered, and that the “bank” must respond to following requests for production must with the documents requested within ___ days. Prepare for the hearing in a mock presentation.
Assuming you win on your motion to compel, having a lawyer in the courtroom representing the homeowner will greatly improve the chances that your lawyer will literally write the findings and rulings of the court. This will decrease the amount of wiggle room that the opposing attorney will try to insert.
You might consider a motion to strike whatever response they file as being unresponsive to the discovery demanded, and contrary to the rules of civil procedure.
There will still be no response — or no meaningful response. All they have are presumptions (not actual facts). You are entitled to rebut those presumptions by asking for facts. They must answer — but they won’t because they can’t.
File a motion for sanctions. along with a memorandum of law citing to relevant cases that are exactly on point.
Get a hearing on the motion for sanctions. At the same time get a hearing on any new objections raised by your opposition. Prepare an order in advance of the hearing so the judge can see exactly what you’re asking for. The order should specify punishments including (a) striking the pleadings (b) dismissing the foreclosure (c) raising the inference or presumption that the loan account does not exist for purposes of this proceeding (“law of the case”) (d) raising the inference or presumption that the ownership of the loan account cannot be established for purposes of this proceeding (“law of the case”) and (e) awarding the homeowner with costs and fees associated with the discovery dispute. It should say that your motion is granted, recite the history of bad behavior, and give them one more chance to purge themselves of contempt that by compliance with the order on the motion to compel within ___ days. Prepare for the hearing in a mock presentation.
There will still be no response — or no meaningful response. All they have are presumptions (not actual facts). You are entitled to rebut those presumptions by asking for facts. They must answer — but they won’t because they can’t.
File a motion for contempt of court along with a memorandum of law citing to relevant cases that are exactly on point.
Get a hearing on the motion for contempt. At the same time get a hearing on any new objections raised by your opposition. Prepare an order in advance of the hearing so the judge can see exactly what you’re asking for. The order should specify punishments including (a) striking the pleadings (b) dismissing the foreclosure (c) raising the inference or presumption that the loan account does not exist for purposes of this proceeding (“law of the case”) (d) raising the inference or presumption that the ownership of the loan account cannot be established for purposes of this proceeding (“law of the case”). It should say that your motion is granted, recite the history of bad behavior, and give them one more chance to purge themselves of contempt by compliance with the order on the motion to compel within ___ days. Prepare for the hearing in a mock presentation.
File a motion in limine along with a memorandum of law citing to relevant cases that are exactly on point.
Get a hearing on the motion for in limine. At the same time get a hearing on any new objections raised by your opposition. Prepare an order in advance of the hearing so the judge can see exactly what you’re asking for. The order should specify that the claimant is barred from introducing evidence on the status or ownership of the debt and barred from introducing any evidence (testimony or exhibits) from which the court might apply presumptions of ownership, loss, right to enforce. It should say that your motion is granted, recite the history of bad behavior. Prepare for the hearing in a mock presentation.
File a motion for summary judgment along with a memorandum of law citing to relevant cases that are exactly on point.
Get a hearing on the motion for summary judgment. At the same time get a hearing on any new objections raised by your opposition. Prepare an order in advance of the hearing so the judge can see exactly what you’re asking for. The order should specify that judgment is entered because the claimant is barred from introducing evidence on the status or ownership of the debt and barred from introducing any evidence (testimony or exhibits) from which the court might apply presumptions of ownership, loss, right to enforce. It should say that your motion is granted, recite the history of bad behavior. Prepare for the hearing in a mock presentation.

Neil F Garfield, MBA, JD, 73, is a Florida licensed trial attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.

FREE REVIEW: Don’t wait, Act NOW!

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CLICK HERE ORDER ADMINISTRATIVE STRATEGY, ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation.

CLICK HERE TO ORDER TERA – not necessary if you order PDR PREMIUM.

CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)

CLICK HERE TO ORDER CASE ANALYSIS

CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR) (PDR PLUS or BASIC includes 30 minute recorded CONSULT)

But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.
Yes you DO need a lawyer.
If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.

Please visit www.lendinglies.com for more information.

Filed under: burden of persuasion, burden of pleading, discovery, Discovery -Subpoena, evidence, foreclosure defenses, jurisdiction, legal standing, Motions, Pleading, Presumptions, prima facie case | Tagged: discovery, foreclosure defense, motion for contempt, motion for sanctions, motion for summary judgment, Motion IN Limine, Motion Practice, motion to compel discovery | 18 Comments »

Tonight! Is it time to sue Black Knight? 6PM EDT 3PM PDT The Neil Garfield Show

Posted on October 1, 2020 by Neil Garfield

Thursdays LIVE! Click in to the Neil Garfield Show

Tonight’s Show Hosted by Neil Garfield, Esq.

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

Tonight I will discuss the curious case of blatant economic fraud on the entire country by investment banks. They figured out how to eliminate the risk of loss on lending, how not to be labelled as a lender subject to lending laws, and who pursue collection, administration and enforcement of obligations that do not exist. And then by denying the receipt of funds that paid off the loan on their own books they continue to operate as though the loan exists, and to designate fictitious entities who are falsely represented by foreclosure mills as owning the defunct obligation.

Specifically we explore how to stop this scheme from operating at all.

Foreclosure litigation is like the game of Chess. The banks line up a set of pawns for you to fight with while their real players hide behind multiple layers of curtains. In my opinion it is time to subpoena Black Knight to the table in most instances. Make them produce documents and answer questions. Note that with Chase (and possibly Wells Fargo) there are periods of time when they had their own alter-ego to Black Knight, so forensic investigation is required.

Black Knight, fka LPS (Lender Processing Services), owner of DOCX and employer of Lorraine Brown who went to jail for fabricating tens of thousands of documents to create the false impression that homeowner obligations still existed and that some designated hitter (e.g., US Bank as trustee for the registered holders of pass through certificates issued by the SASCO Trust a1-2009) owned the obligation.

And then following that logic, since they own the obligation, the refusal of the homeowner to pay the obligation is assumed to have produced a loss (financial damage). And then, following the logic, being the owner of the obligation and having suffered a loss that was caused by the homeowner’s refusal to pay, the lawyers declare a default on behalf of this designated hitter. And then they foreclose.

The possibility that there is no obligation and that there is no financial loss suffered by anyone is currently thought of as stupid theory, thanks to the prolific PR efforts of the investment banks. And yet there is not a single case in which any foreclosure mill has produced any admissible evidence regarding the establishment or current status of the account reflecting ownership of the alleged homeowner’s obligation. Not a single case where actual loss has been in the pleading or notices. For two decades this game has been played by investment banks.

In addition, after the origination or acquisition of the apparent loan transaction, a new player is introduced (e.g. Ocwen), who claims to have been hired to service the loan accounts that are apparently owned by the designated hitter. But Ocwen only partially “services” the account. It might have authority to act as agent for the designated hitter, but the designated hitter has neither authority or ownership of the obligation. So Ocwen is a designated hitter for who ever is really doing the servicing. That party is in most cases Black Knight. In the Chess analogy Black Knight is the Knight who serves its masters (investment banks) and is willing to sacrifice itself and the self-proclaimed “servicers” to protect the King (investment bank).

This means that all records, payment history and document handling does not originate with Ocwen, but rather with Black Knight, who is actually answering to an investment bank who receives both proceeds from homeowner payments, and proceeds from illegal foreclosure sales. And the investment bank receives it as off balance sheet transactions that are actually revenue that is untaxed.

So interrupting the game of foreclosure mills in using “representatives” employed by “servicers” like Ocwen undermines the admissibility of any testimony or evidence from that representative, including foundation testimony for the admission of “business records” as an exception to the hearsay rule. It also brings you one step closer to the King. The harder they fight against you for doing this the more confident you will become that you have hit a nerve — or rather, the achilles heal of this entire scheme that would be a farce if it wasn’t so real.

And lawsuits against the designated hitter might have more credibility if you included not only the designated fake servicer but also the real servicer like Black Knight. And remember the truth is that in virtually so-called loans the end result is that there is no lender and there is no loan account on the books of any company claiming ownership of the obligation. They all get paid in full from “securitization” of the data. But that means that they never sold the debt, which is an absolute condition precedent and standing requirement for bringing a claim.

So when US Bank is named as a claimant by lawyers, those lawyers have had no contact and no retainer agreement with US Bank who is completely unwilling to grant such right of representation for litigation in their name. But for a fee they are willing to stay silent as long as they don’t really need to do anything. And when Ocwen comes in as servicer, they have no original records and they did not board the records of another servicing company. They merely have access to the same proprietary database maintained and owned and operated by Black Knight who has full control over entries (largely automated through the use of lockbox contracts and then scanned), changes and reports.

So maybe it is time to subpoena Black Knight who serves as the representatives of the investment banks and maybe it’s time to sue them for being party to a scheme specifically designed to deceive the courts and homeowners.

Take a look at a submission I just received from Summer Chic:

I received the rest of prop. taxes from 2017 and here is a very interesting detail I want to share.

On November 6, 2019 Black Knight (who deny any involvement to my property*) filed a legal case against PennyMac whom BK accused on theft of their trade secrets and removed from their system.

Almost immediately customers started to complain that PennyMac is unable to perform their “servicing” due to a “major glitch” in their “updated system”.

In other words, PM is NOT able to conduct any functions without access to Black Knight’s MSP.

Since 2017 my taxes were purportedly paid by Caliber – whose tax PO Box was different than PO box for my check payments.

On Sept. 15, 2019 PennyMac purportedly “paid” my taxes.

But on December 31, 2019 (!) my taxes were paid by CoreLogic while the receipt shows as Coreligic-PM. I assume these were Spring taxes (which are due in March) because I don’t see any March receipts.

On September 16, 2020 my taxes were again paid by CoreLogic , now without any reference to PennyMac.

During all time in question CoreLogic repeatedly deny any relationship to my property even though they also conducted appraisal for my property via la mode appraisal software.

In other words, it is clear who handles all escrow accounts.

*On June 15, 2016, or the same day as I filed my application for the loan, Black Knight ordered Flood Map determination acting on behalf of Perl. Determination was done by CoreLogic who is allowed to use FEMA’s forms and who owns a Hazard Map determination company.

*

Neil F Garfield, MBA, JD, 73, is a Florida licensed trial attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.

*

FREE REVIEW: Don’t wait, Act NOW!

CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us. Inthe meanwhile you can order any of the following:

*

CLICK HERE ORDER ADMINISTRATIVE STRATEGY, ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation.

*

CLICK HERE TO ORDER TERA – not necessary if you order PDR PREMIUM.

*

CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)

*

CLICK HERE TO ORDER CASE ANALYSIS

*

CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR) (PDR PLUS or BASIC includes 30 minute recorded CONSULT)

*

FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.

But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.

Yes you DO need a lawyer.

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

Filed under: boarding process, BURDEN OF PROOF, CORRUPTION, discovery, Discovery -Subpoena, evidence, Fabrication of documents, foreclosure, foreclosure defenses, foreclosure mill, forensic investigation, jurisdiction, legal standing, Pleading, Presumptions, prima facie case, Servicer, sham transactions, standing | Tagged: abusive servicing, Black Kngiht, business records exception to hearsay rule, evdience, fraud, hearsay, Servicing | 3 Comments »

Beware of Financial Rescue Scams Including Modifications

Posted on August 17, 2020 by Neil Garfield

The offer of modification is actually inviting you to formally join the securitization process without getting paid for it.

I write often about the illegality of the Wall Street schemes that have defrauded investors and homeowners out of their money and investments. But there is also another aspect to this.

The coming Tidal Wave of evictions and foreclosures is going to produce a tidal wave of scams that deprive homeowners and tenants of what little income or assets they have left.

Some of the scams are very close to legitimate business propositions. There is nothing wrong with a risk sharing agreement in which an investor gives consideration to the homeowner in exchange for petitioner patient in the title will proceeds arising from the sale or refinancing from the house. And the consideration could be funding the defense of the property – or even making an offer to pay off the balance as demanded, provided the claimant show proof of payment which in turn would show proof of ownership of the underlying debt.

There are plenty of legitimate business propositions that could be profitable and successful for both the homeowner and the investor/rescuer. In some of them, homeowners might be required to pay rent to the investor. There is nothing illegal about that.

But mostly, homeowners are going to be approached by disreputable people who are simply out to make a buck and neither intend any beneficial outcome for the homeowner nor do they have any credentials, training or education which they could employ for the benefit of the homeowner.

As I have previously written on these pages, the form in which the scams are presented varies because, like the banks, they use labels to hide what they are really doing. But the substance is always the same.

Since the goal is money, and they probably know they need to hit and run, they going to demand money in one form or another to be transferred from the homeowner to the “rescuer” sooner rather than later.

In addition, they may ask for quitclaim deed, the execution of which is detrimental to the interests of the homeowner. By the execution of a quitclaim deed, the homeowner might lose standing to challenge the investment banks when they seek to administer, collect or enforce the homeowner transaction that gave rise to the appearance of a “loan” transaction.

So if someone asked for money or deed upfront, the proposal is probably part of a scam. An excellent way of determining whether the proposal is part of the scam is to simply read and hear what they are promising. In order to close the deal scam artist will promise things or results that will never be delivered.

Any qualified professional will tell you that when you are entering into a dispute, if anyone promises or guarantees a specific result, they are lying to you. So if someone guarantees you a result, the proposal is probably part of a scam.

In addition remember that if it seems too good to be true, then it is not true and it is not good. Scammers will tell you what you want to hear and you will want to believe it because it is what you want to hear.

So as a yardstick to measure such proposals consider this blog. I will tell you that current law forbids enforcement of your debt, note or mortgage. But I also tell you that (a) in order to defend you must enter the process of litigation and administrative contests and (b) the odds are stacked against you because judges have it in their mind they are saving the financial system form collapse. While I say that a majority of the people who follow my advice win their cases or achieve a successful result, that also means that in a substantial minority of cases, people lose and are forced to leave their homes after spending money on the defense. I can guarantee that current law means that homeowners SHOULD win but I can’t guarantee that they WILL win.

MODIFICATION IS A SCAM

Lastly, one of the scams that will be proposed to you is an offer of modification from what appears to be the “servicer” of your “loan”. In most cases this is offering you ice in the winter. You should consult an accountant or other financial expert to determine the value of the offer of modification. But more than that you need to realize that the offer of modification is actually inviting you to formally join the securitization process.

Modifications actually formalize the illegal practices conducted by the investment banks. Since they have retired the actual loan accounts, there are no actual creditors who can legally make a claim.

The banks have been getting away with designating parties to act as though they were creditors even though they are not. They know this is a very weak spot in their strategy. So they offer agreements that are entitled “modifications” which do virtually nothing to change the terms and conditions of the loan, although some incentives might be offered to reduce the homeowner to sign the agreement.

The real purpose of the agreement is to get the homeowner to agree that the use of the designee, like the company pretending to be the “servicer”, is perfectly acceptable to the homeowner. In so doing, the homeowner has essentially waived all potential defenses that could arise under the Uniform Commercial Code or under common law. The requirement that claimant must have financial injury in order to bring a claim will also have been waived unintentionally by the homeowner, who will then be sued or coerced into making payments that are not due. This also sets the stage for the declaration of default by a non-creditor which can then be enforced by the contract of “modification”.

It is obvious that the proposal for modification is coming from someone who has no authority or powers to propose or enter into any agreement that affects your homeowner transaction (“loan”) in any way. Yet for purely practical reasons it may well be in your interest to agree. Depending upon your financial circumstances and your appetite for risk you might want the entire ordeal to simply end and modification might be an effective way out of it.

But remember though you do have some bargaining control that is not apparent. And although the agreement is not actually a legally binding instrument for a variety of reasons it no doubt will be treated as binding by the courts and will be codified into legitimacy by the coming resets of state legislatures.

*Neil F Garfield, MBA, JD, 73, is a Florida licensed trial attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.*

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*FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.

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Filed under: CORRUPTION, Fabrication of documents, foreclosure, investment banking, jurisdiction, legal standing, politics, Presumptions, prima facie case, securities fraud, Servicer, sham transactions | 5 Comments »

How to Fight Those “Declarations” from False Claimants in Foreclosures

Posted on August 7, 2020 by Neil Garfield

The bottom line is that the loan account was extinguished contemporaneously with the origination or acquisition of the account. There is no loan account claimed as an asset of any company.

The records of the self-proclaimed servicer are not records of the loan account or the establishment of the loan account on the books of any company. Therefore they are not records of the creditor.

Besides being fabricated those records are irrelevant and inadmissible without foundation testimony and proof that the loan account has been established on the books of some creditor and even then, even that is irrelevant unless that creditor was the named Plaintiff or beneficiary on a deed of trust.

All of this is completely counterintuitive to lawyers and homeowners — but not to investment bankers who continue to profit from each foreclosure without paying one cent to reduce the claimed obligation supposedly due from the homeowner. And they do this all without ever appearing as a party in court.

Nice work if you can get it.

So here is something I drafted recently in response to a memorandum in opposition to the homeowners’ motion to strike the declarations of the “plaintiff”.

Counsel for the named plaintiff is engaging in procedural and substantive strategies of evasion.

While the action is clearly filed for the benefit of “certificate holders,” counsel continues to refer to the plaintiff as Bank of New York Mellon.

Counsel steadfastly refuses to identify the certificates or the holders.

In addition, counsel implies a representative capacity on behalf of the “certificate holders” in which the Bank of New York Mellon supposedly has the authority to represent them. As defendant has previously demonstrated to the court, Bank of New York Mellon has consistently rejected any allegation or implication that it served in a representative or fiduciary relationship with certificate holders both in this particular series and in other securitization schemes.

Counsel for the named plaintiff supposedly appears on the behalf of unidentified holders of unidentified certificates. Or counsel for the named plaintiff is claiming a fictitious representative capacity in which it represents Bank of New York Mellon. But as previously stated by defendant, opposing counsel has no agreement for legal representation between itself and Bank of New York Mellon.

Instead, it has been retained by a party who is a self-proclaimed “servicer” – Select Portfolio Servicing Inc., and counsel for the named plaintiff asserts that SPS is the “attorney-in-fact” for Bank of New York Mellon.

However counsel for the named plaintiff has never alleged nor demonstrated that Bank of New York Mellon has ever been party to a transaction in the real world in which it paid value for the underlying debt in exchange for conveyance of ownership of that debt. Accordingly even if SPS is the attorney-in-fact for Bank of New York Mellon, such an assertion is both irrelevant and a distraction from the fact that there is no creditor present in this lawsuit.

The truth of the matter is that opposing counsel represents neither Bank of New York Mellon nor the certificate holders. Its sole relationship and contact is with SPS, owned by the real player in this action, Credit Suisse — who seeks only profit from the sale of homestead property since the loan account and the underlying debt were retired in the parallel securitization process.

There is no such debt or loan account and therefore there can be no owner. And if there is no owner of the debt or account then there is no creditor, lender or successor lender. SPS may have some agency with Bank of New York Mellon but that does not create the rights they seek to enforce.

Counsel for the named plaintiff asserts “the declaration was clearly executed by a person with “personal knowledge” as required by the foreclosure order.” This is not a true statement. Counsel is being disingenuous with the court.

The declaration was executed by somebody identified as a “document control officer.” The declaration says nothing else about any personal knowledge acquired by the signatory. In fact it does not even define “Document control officer.”

The declaration itself does not establish the foundation for testimony about the subject loan despite the characterization advanced by opposing counsel. The statement in the declaration is that “SPS holds and maintains all of the business records relating to the servicing of this loan.” There is no statement or allegation or any other evidence in the court file, nor could there be, that the records of SPS include entries that establish the subject debt, note and mortgage as an asset of any entity. That is because no such entity exists and no such loan account presently exists.

Opposing counsel disingenuously attempts to distract the court by focusing on the familiarity with the record-keeping practices and record-keeping systems of SPS. Such familiarity is irrelevant if the records are not those of the creditor. This is irrelevant if SPS is not an authorized agent of the party who has paid value for the debt in exchange for a conveyance of ownership of the debt. No such allegation or evidence exists except through the use of presumptions related to documents that are not even facially valid.

Accordingly the opposition filed by opposing counsel is simply another step in the attempt to distract the court from the simple fact that no loan account has ever been established nor has the ownership of such an account been established. Opposing counsel has relied upon innuendo, implication and self-serving inferences to establish facts that do not exist in the real world.

The declaration of opposing counsel is false. Neither the attorney nor the law firm represents the Bank of New York Mellon. In addition, the attorney falsely alleges “personal knowledge” without specifying how that knowledge was obtained. Like all other documents in this case, the creation of this document is meant to create an illusion based upon a cursory glance at the document rather than an analysis of it.

The declarations in this case do not survive any credible analysis.

Similarly, the creation and execution of a “limited power of attorney” on March 5, 2020, after the lawsuit was filed and after the motion for summary judgment was filed, is another disingenuous effort to distract the court. The execution of the power of attorney, even if it was valid, is irrelevant if the grantor had nothing to grant. There has yet to be any reference, allegation, exhibit or evidence submitted establishing the identity of any entity that maintains the subject loan account as an asset on its financial statements.

In conclusion, any reasonable attentive analysis of the documents submitted by opposing counsel reveals the absence of any allegation that counsel represents any party on whose behalf this action was filed, according to the complaint and subsequent filings. Taken individually or collectively, the documents are a smokescreen for the pursuit of profit of a third party (Credit Suisse) rather than restitution for an unpaid debt that no longer exists.

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Filed under: boarding process, CORRUPTION, discovery, Discovery -Subpoena, evidence, Fabrication of documents, foreclosure, foreclosure defenses, foreclosure mill, investment banking, jurisdiction, legal standing, Pleading, Presumptions, prima facie case, Servicer | Tagged: best evidence, FOUNDATION, hearsay, relevance | 4 Comments »

Gary Dubin, Esq. Scores Another Victory for Homeowners in Hawaii in Notorious LSF9 Case

Posted on August 4, 2020 by Neil Garfield

More kudos to Gary Dubin who keeps producing favorable decisions for homeowners. This ruling is important for a variety of reasons. This time it is all about the rules of evidence and legals tanding to even bring the claim.

see US Bank LSF9 v Verhagen 7-20-20

The first reason is that it presents a court of appeal that drilled down on the actual facts rather than the presumed facts. This is a substantial departure from prior judicial practice. I think it reflects a change in judicial attitude. While nobody is willing to say that these foreclosures are entirely fraudulent, The suspicions and reservations about these actions are starting to surface.

So the second reason that this may be important is that the court made an effort to identify the labels used to identify people who supposedly had knowledge and Authority.

The third reason is that this decision brings us back to basics. This is not new. But it is instructive. If there was no claim to begin with then there is no foreclosure.

The fourth reason is that this deals within the infamous LSF9 “trust” for which US Bank is labelled as a trustee.

The fifth reason is that the decision deals explicitly with rules of evidence — what is admissible and what is not admissible evidence. And specifically affects the admissibility of records of self-proclaimed servicers.

Unless the robo witness can explain to the court’s satisfaction how he or she knows that the records of the “prior servicer” were created in in the ordinary course of the business that the lawyers are saying was bing conducted, then the only way those prior records can be admitted into evidence is by a custodian of records of the prior entity that was claiming the right to service the homeowner account.

What is clear is that no such witness is available because the “prior servicer” was not actually performing any servicing function on behalf of any creditor (because there is no creditor). The whole reason that Caliber became the designated “servicer” was to prevent Chase from being accused of perjury. This decision brings them back into something they don’t want to be in.

Chase knows that the debt was never purchased or sold by anyone to anyone. They know that the money received from homeowners was not for the LSF9 trust and they know that the foreclosure is not being pursued for the trust or the trustee, US Bank, nor the investors who bought certificates. Chase knows that this foreclosure is being pursued for Chase and Credit Suisse.

And Chase knows that if this simple fact is revealed, the court will demand that Chase and Credit Suisse prove they are entitled to receive those proceeds and that the court will question why the action was not brought in their name. Chase knows they can’t answer those questions because there is only one answer — they are pursuing foreclosure through intermediaries because they want the money — not to provide restitution for unpaid debt to someone who paid for it but to increase their swollen wallets with more profit.

The devil is in the details. And this time the details revealed the fatal deficiency in the foreclosure action. But it’s not over. Having vacated the Summary Judgment, the foreclosure mill is being given a second bite at the apple with a real trial. In all probability this case will be settled under seal of confidentiality and will never get to trial But if it does get there, then the lawyers must hold the trial judge’s feet to the fire and require actual testimony of actual personal knowledge as to the record-keeping practices of the prior servicer.

The lawyers should also focus on the most basic assumption — that Caliber or Chase were ever “Servicers.” If they are not then their records are suspect and are created solely for the purpose of foreclosure proof rather than being records of actual transactions. Such records are inadmissible without corroboration from a credible reliable source.

The way to attack this, I think, is by forcing the issue on who received payments from the servicer. You won’t find a creditor in that mix. The ancillary and more important question is who has previously received the cash proceeds from the forced sale of residential homestead property in foreclosures commenced in the name of the LSF9 trust? Neither US Bank nor the trust ever saw a dime — and they are never intended to receive anything.

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Filed under: boarding process, BURDEN OF PROOF, CORRUPTION, discovery, Discovery -Subpoena, evidence, Fabrication of documents, foreclosure, foreclosure defenses, foreclosure mill, forensic investigation, Investor, jurisdiction, legal standing, MBS TRUSTEE, Pleading, prima facie case, Servicer, sham transactions, standing | Tagged: Caliber, Chase, LSF9, servicer | 2 Comments »

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(Once again, because of minor medical issues I decline to do the Neil Garfield Show. I offer this instead)

It is easy to get lost in the weeds. Don’t make up your own words or definitions because your definitions have no relevance to your case. Do hold the accusing side to their words and to the legally accepted definitions of those words as contained in statutes and cases.

But above all, start at the beginning — a rookie mistake made by nearly all young litigators and pro se litigants who skip over the gold to pick up a few pieces of copper. They exclaim “How could I lose, I have the copper!” And all the court wanted was the gold.

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The payment history is not the loan receivable account by definition and it is never presented as such. Failure to recognize this obscure fact often results in failure. But those who do understand it, raise their chances of a successful defense from unlikely to very likely.

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SHOW ME THE LEDGER! NO, NOT THE ONE FROM THE SELF PROCLAIMED SERVICER. SHOW ME THE ONE FROM THE COMPANY CLAIMING THEY PAID VALUE FOR THE DEBT.

Everyone is shying away from the elephant in the living room. What is so bad about the homeowner getting a “free house” in the context of a larger scheme that produced so much revenue to everyone except the homeowner?

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