EARLY BIRD DISCOUNT ON WEBINAR ENDS 9/22/21

APPROVED FOR 2.5 CLE CREDITS APPROVED BY THE FLORIDA BAR

HOMEOWNER ATTENDANCE PERMITTED

Live and On-Demand Available

EARLY BIRD DISCOUNT ENDS 9/22/21

  • What to Look for in Examining an Assignment

  • How to Successfully Litigate the Issues

  • How lawyers can make money in this niche

APON and GTC Honors, Inc. an approved host provider for CLE (for lawyers) credits in Florida and 26 other states that allow reciprocal credits for licensed attorneys announce that they are producing a seminar presented by Neil F Garfield, MBA, JD , trial lawyer for nearly 45 years and investment banker for 50 years.

Only lawyers will be able to ask questions. It will be followed up with a conference call 2 weeks after the presentation. The presentation will be live on 9/29/21 at 3 PM EDT or on-demand.

Included in the curriculum will be business plan tips for lawyers entering what will be an exciting opportunity to win cases and profit. 

Examination and Challenge

of Assignments of Mortgage

WEDNESDAY, SEPTEMBER 29, 2021

3PM EDT

2.5 CLE CREDITS

Click here to register

for Live Attendance or

On-Demand After Live Presentation is Completed

Curriculum:

  • The Coming Challenge to Lawyers: Another Foreclosure Tidal Wave
  • The Ethics of Foreclosure Defense and Foreclosure Advice.
  • Why Make the Challenge?
  • How to Examine the Assignment of Assets Like Mortgage Liens.
  • How to prevent evidence from coming in
  • How to get admitted evidence out
  • How to undermine the admitted evidence 
  • What to Look for in Examining an Assignment:
    • Timing
    • Complete names
    • Verified names
    • Direct signatures
    • Indirect/derivative signatures
    • Robosigning
    • Dates
    • MERS
    • Recital of consideration
    • Identified subject (asset) of transfer
    • Warranty of title to asset
    • Notices from creditor
    • Derivative notices from creditor
    • Notices from “servicer”
  • How to Successfully Litigate the Issues:
    • Admissions Against Interests
    • Motion to Dismiss
    • Discovery and Definitions
    • Motion for Summary Judgment
    • BUSINESS RECORD EXCEPTION TO HEARSAY RULE
    • Motion to Compel Discovery
    • Motion for Sanctions
    • Motion in Limine
    • Objections at Trial and Cross-examination
  • How lawyers can make money in this niche
  • Q&A for lawyers only
  • Follow up conference call 2 weeks later 

Virtually all foreclosures today are based on written recorded instruments purporting to transfer title to the mortgage lien from one legal person to another.

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

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

  • Sponsor: APON
  • Host/Provider: GTC Honors, Inc.
  • Course Number 2106918N
  • Provider # 1030277
  • 2.5 Credits for Continuing Legal Education
  • Level: Intermediate
  • Approval Period: 09/22/2021 – 03/31/2023
  • Presenter: Neil F Garfield
  • Florida Bar Number 229318

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

CLICK HERE TO REGISTER FOR APON SPONSORED WEBINAR: Assignments of Mortgage!

Chase loses again after trying sneaky maneuver

WHAT ABOUT ALL THE OTHER LEHMAN DEALS WHERE CHASE CLAIMED OWNERSHIP AND STOLE PROPERTY FROM HOMEOWNERS?

Neither Chase nor anyone else actually has a claim or a case against the homeowner if the premise is that either Chase or some other named “trustee” owns the loan through the magical process of “securitization”. The fact that securities were issued is not a license to lie. Using a label doesn’t mean anyone is telling the truth.

Even Chase couldn’t stomach defending a nonexistent securitization process; so it lied about something else. In this case it lied about ever receiving the note which would, in turn, have been evidence of transfer of title to the underlying debt/obligation.

Hearsay is hearsay. It is not admissible as evidence of anything. The affiant in submitting the affidavit stated only that he reviewed records and came to the conclusion that the note had been delivered, raising the presumption that the loan obligation had been purchased.

Courts are not interested in a witness’s conclusions. they are interested in the facts. And the facts are that the affiant did not attach the records about which he was testifying — in order for the court to come to its own conclusion.

The reason for all of this is that Chase never did get delivery of the note, never purchased the underlying obligation for value, and therefore did not own or control the transction that is labelled as a loan. It lied about everything, concealing the fact that a Lehman trust claimed ownership (which was also a lie).

See JPMorgan Chase Bank v. Tumelty, 2020 N.Y. Slip Op. 6766 (N.Y. App. Div. 2020)

From Follow up by Bill Paatalo:

Nice mini-victory here. I’ve been assisting in this case. This goes to the heart of what we’ve been discussing and posting regarding the WaMu notes. Chase cannot overcome the obvious deficiencies. I mentioned this case on the Show and the fact that Chase admitted after judgment the loan was in a Lehman Trust.
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The plaintiff asserts that it was in physical possession of the note at the time it
commenced this action. The note was not attached to the complaint. In support of its motion, the plaintiff relied upon the affidavit of Evan L. Grageda, an employee of the plaintiff. Grageda averred that, based on his review of the plaintiff’s records, the plaintiff took possession of the note on or about July 20, 2009, and that the plaintiff was in possession of the note when the action was commenced on September 13, 2012. There were no business records attached to the affidavit which demonstrate that the plaintiff took possession of the note on that date.
 
We agree with the defendant that the affidavit submitted by the plaintiff lacked a
sufficient evidentiary basis to demonstrate that the plaintiff possessed the note when it commenced this action. Grageda’s averments relating to the date that the plaintiff possessed the note are inadmissible hearsay and lack probative value because they are based on unidentified records (e.s.) which were not included with his affidavit (see Deutsche Bank Natl. Trust Co. v Dennis, 181 AD3d 864; Nationstar Mtge., LLC v Cavallaro, 181 AD3d 688; American Home Mtge. Servicing, Inc. v Carnegie, 181 AD3d 632; Bank of N.Y. Mellon v Gordon, 171 AD3d 197, 208-209). Since the plaintiff failed to meet its initial burden as the movant, the Supreme Court should have denied those branches of plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against the defendant and to appoint a referee to compute the amount due to the plaintiff, regardless of the sufficiency of the defendant’s opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). (e.s.)
*
Neil F Garfield, MBA, JD, 73, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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FREE REVIEW: Don’t wait, Act NOW!

CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us. In the meanwhile you can order any of the following:
*
CLICK HERE ORDER ADMINISTRATIVE STRATEGY, ANALYSIS, AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
*
CLICK HERE TO ORDER TERA – not necessary if you order PDR PREMIUM.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
*
CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR) (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
*
FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
  • But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.
  • Yes you DO need a lawyer.
  • If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.
*
Please visit www.lendinglies.com for more information.

Sometimes the client figures it out better than the lawyer

The problem has always been how to present this counterintuitive reality to a judge who is convinced that securitization of a loan DID occur even though the transaction was not in fact a loan and no sale occurred.

After decades of litigating and teaching litigation, the one common theme throughout my career has been the knowledge that often your best ideas come from the client, who is unencumbered by thoughts of what can’t be done.

One such client of mine in the state of Hawaii asked a simple question. She asked whether the homeowner, post-foreclosure, could ask for surplus funds. Surplus funds are defined by statute to mean that once the debt is paid including all expenses of enforcement, the remainder of the proceeds of a forced sale of the property should be returned to the homeowner. This is basic law applied in all jurisdictions. The “lender” does not get a bonus — at least not legally.

So that sparked some thought and analysis. If the claim was based on a nonexistent loss, then the entire proceeds of the sale should be turned over to the homeowner. In addition,  the filing of a motion or petition for accounting for the money proceeds from the sale could reveal the nonexistence of the implied loss and the nonexistent claim. That, in turn, could lead to a claim for sanctions or damages for filing a frivolous lawsuit. And that might all be included in a petition for declaratory, injunctive, and supplemental relief in which the court is asked to declare fee title, unencumbered, vested in the homeowner.

In any event, procedurally, the demand for an accounting followed by a motion to enforce the demand seems appropriate and should send the foreclosure mill spiraling. You see, the money never goes to the named claimant where the alleged claim was based upon securitization of the debt — because the loan, debt, note, and mortgage were never securitized. (Securitization means breaking up an asset into component parts that are sold to investors in pro-rata shares. Such sales never occurred. Securities were sold but they did not represent an ownership interest in any asset.)

The problem has always been how to present this counterintuitive reality to a judge who is convinced that securitization of a loan DID occur even though the transaction was not in fact a loan and no sale occurred.

The answer might be, in addition to the defensive strategies suggested on these pages, that instead of an appeal you file a motion to compel an accounting and a motion to open limited discovery on the accounting. The motion is actually a motion to compel the return of surplus cash generated from the sale of the property. Of course, that might need to wait until the sale to a third party but there are good arguments for filing it when the credit bid is offered by the named claimant.

Thus far, the banks have been selling property and then depositing the cash into an account controlled by a concealed investment bank notwithstanding the naming of the sham conduit claimant in whose name the foreclosure process was started. Frequent sleight of hand name changes occurs post-judgment or even post-sale.

It is difficult to imagine any court denying the request for the return of excess funds. Obviously, the argument from the foreclosure mill would be something like this: “The loss has already been established as the law of the case and the sale price was less than the loss, so there is no surplus.” But that argument flies in the face of current judicial doctrine which holds that even in a default situation you must still prove the damages.

And once the court is convinced you to have a right to see what happened to the money, it is difficult to imagine that the court would not order the foreclosure mill to produce the accounting. Like a request for identification of the creditor and the loan account receivable, such orders will be ignored because they must be ignored — even at the expense of sanctions. And the reason is quite obvious after reviewing thousands of cases — there is no loan account, there is no loss and there is no creditor despite all appearances to the contrary.

So if they file a false accounting they are probably committing or suborning perjury. And I don’t think many people are willing to sign such documents for any amount of money unless they don’t value their freedom.

The interesting thing about procedural rules is that the judge is more than happy to apply them if they can get rid of the case. In this case, a motion for sanctions for failure to comply with the homeowner’s request and the judge’s order will most likely produce either a direct win for the homeowner or a very satisfactory settlement — albeit with someone who had no right to settle with you.

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

FREE REVIEW: Don’t wait, Act NOW!

CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us. In the meanwhile you can order any of the following:
*
CLICK HERE ORDER ADMINISTRATIVE STRATEGY, ANALYSIS, AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
*
CLICK HERE TO ORDER TERA – not necessary if you order PDR PREMIUM.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
*
CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR) (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
*
FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
  • But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.
  • Yes you DO need a lawyer.
  • If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.
*
Please visit www.lendinglies.com for more information.

How and Why to Litigate Foreclosure and Eviction Defenses

Wall Street Transactions with Homeowners Are Not Loans

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I think the biggest problem for people understanding the strategies that I have set forth on this blog is that they don’t understand the underlying principles. It simply is incomprehensible to most people how they could get a “loan” and then not owe it. It is even more incomprehensible that there could be no creditor that could enforce any alleged obligation of the homeowner. After all, the homeowner signed a note which by itself creates an obligation.
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None of this seems to make sense. Yet on an intuitive level, most people understand that they got screwed in what they thought was a lending process.
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The reason for this disconnect between me and most of the rest of the world is that most people have no reason to know what happens in the world of investment banking. As a former investment banker, and as a direct witness to these seminal events that gave rise to the claims of “securitization” I do understand what happened.
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In this article, I will try to explain, from a different perspective, what really happened when most homeowners thought that they were closing a loan transaction. For this to be effective, the reader must be willing to put themselves in the shoes of an investment banker.
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First, you must realize that every investment banker is merely a stockbroker. They do business with investors and other investment bankers. They do not do business with consumers who purchase goods and services or loans. The investment banker is generally not in the business of lending money. The investment banker is in the business of creating capital for new and existing businesses. They make their money by brokering transactions. They make the most money by brokering the sales of new securities including stocks and bonds.
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The compensation received by the investment banker for brokering a transaction varied from as little as 1% or 2% to as much as 20%. The difference is whether they were brokering the sale of existing securities or underwriting new securities. Obviously, they had a very large incentive to broker the sale of new securities for which they would receive 7 to 10 times the compensation of brokering the sale of existing securities.
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But the Holy Grail of investment banking was devising some system in which the investment bank could issue a new security from a fictional entity and receive the entire proceeds of the offering. This is what happened in “residential lending.” And this way, they could receive 100% of the offering instead of a brokerage commission.
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But as you’ll see below, by disconnecting the issuance of securities from the ownership of any perceived obligation from consumers, investment bankers put themselves in a position in which they could issue securities indefinitely without limit and without regard to the amount of the transaction with consumers (homeowners) or investors.
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In short, the goal was to make it appear as though loans have been securitized even know they had not been securitized. In order for any asset to have been securitized it would need to have been sold off in parts to investors. What we see in the residential market is that no such sale ever occurred. Under modern law, a “sale” consists of offer, acceptance, payment, and delivery. So neither the investment bank nor any of the investors to whom they had sold securities, ever received a conveyance of any right, title, or interest to any debt, note, or mortgage from a homeowner.
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At the end of the day, the world was convinced that the homeowner had entered into a loan transaction while the investment banker had assured itself and its investors that it would be free from liability for violation of any lending laws — as a “lender.”
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Neither of them maintained a loan account receivable on their own ledgers even though the capital used to pay homeowners originated from banks who loaned money to investment bankers (based upon sales of “certificates” to investors), which was then used to pay homeowners as little as possible from the pool of capital generated by the loans and certificate sales of “mortgage-backed bonds.”
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From the perspective of the investment banker, payment was made to the homeowner in exchange for participation in creating the illusion of a loan transaction despite the fact that there was no lender and no loan account. This was covered up by having more intermediaries claim rights as servicers and the creation of “payment histories” that implied but never asserted the existence or establishment of a loan account. Of course, they would need to dodge any questions relating to the identification of a creditor. That could be no creditor if there was no loan account. This tactic avoided perjury.
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Of course, this could only be accomplished through deceit. The consumer or homeowner, government regulators, and the world at large, would need to be convinced that the homeowner had entered into a secured loan transaction, even though no such thing had occurred. From the investment bankers’ perspective, they were paying the homeowner as little money as possible in order to create the foundation for their illusion.
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By calling it “securitization of loans” and selling it that way, they were able to create the illusion successfully. They were able to maintain the illusion because only the investment bankers had the information that would show that there was no business entity that maintained a ledger entry showing ownership of any debt, note, or mortgage — against which losses and gains could or would be posted in accordance with generally accepted accounting principles (and law). This is called asymmetry of information and a great deal has been written on these pages and by many other authors.
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Since the homeowner had asked for a loan and had received money, it never occurred to any homeowner that he/she was not being paid for a loan or loan documents, but rather was being paid for a service. In order for the transaction to be perceived as a loan obviously, the homeowner had to become obligated to repay the money that had been paid to the homeowner. While this probably negated the consideration paid for the services rendered by the homeowner, nobody was any the wiser.
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As shown below, the initial sale of the initial certificates was only the beginning of an infinite supply of capital flowing to the investment bank who only had to pay off intermediaries to keep them “in the fold.” By virtue of the repeal of Glass-Steagall in 1998, none of the certificates were regulated as securities; so disclosure was a matter of proving fraud (without any information) in private actions rather than compliance with any statute. Further, the same investment banks were issuing and trading “hedge contracts” based upon the “performance” of the certificates — as reported by the investment bank in its sole discretion.
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It was a closed market, free from any free market forces. The theory under which Alan Greenspan, Fed Chairman, was operating was that free-market forces would make any necessary corrections, This blind assumption prevented any further analysis of the concealed business plan of the investment banks — a mistake that Greenspan later acknowledged.
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There was no free market. Neither homeowners nor investors knew what they were getting themselves into. And based upon the level of litigation that emerged after the crash of 2008, it is safe to say that the investors and homeowners were deprived of any bargaining position (because the main aspects fo their transition were being misrepresented and concealed), Both should have received substantially more compensation and would have bargained for it assuming they were willing to even enter into the transaction — highly doubtful assumption.
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The investment banks also purchased insurance contracts with extremely rare clauses basically awarding themselves payment for nonexistent losses upon their own declaration of an “event” relating to the “performance” of unregulated securities. So between the proceeds from the issuance of certificates and hedge contracts and the proceeds of insurance contracts investment bankers were generally able to generate at least $12 for each $1 that was paid to homeowners and around $8 for each $1 invested by investors in purchasing the certificates.
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So the end result was that the investment banker was able to pay homeowners without any risk of loss on that transaction while at the same time generating capital or revenue far in excess of any payment to the homeowner. Were it not for the need for maintaining the illusion of a loan transaction, the investment banks could’ve easily passed on the opportunity to enforce the “obligation” allegedly due from homeowners. They had already made their money.
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There was no loss to be posted against any account on any ledger of any company if any homeowner decided not to pay the alleged obligation (which was merely the return of the consideration paid for the homeowner’s services). But that did not stop the investment banks from making claims for a bailout and making deals for loss sharing on loans they did not own and never owned. No such losses ever existed.
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Investment bankers first started looking at the consumer lending market back in 1969, when I was literally working on Wall Street. Frankly, there was no bigger market in which they could participate. But there were huge obstacles in doing so. First of all none of them wanted the potential liability for violation of lending laws that had recently been passed on both local and Federal levels (Truth in Lending Act et al.)
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So they needed to avoid classification as a lender. They achieved this goal in 2 ways. First, they did not directly do business of any kind with any consumer or homeowner. They operated strictly through “intermediaries” that were either real or fictional. If the intermediary was real, it was a sham conduit — a company with virtually no balance sheet or income statement that could be collapsed and “disappeared” if the scheme ever collapsed or just hit a bump in the road.
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Either way, the intermediary was not really a party to the transaction with the consumer or homeowner. It did not pay the homeowner nor did it receive payments from the homeowner. It did not own any obligations from the homeowner, according to modern law, because it had never paid value for the obligation.
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Under modern law, the transfer or conveyance of an interest in a mortgage without a contemporaneous transfer of ownership of the underlying obligation is a legal nullity in all states of the union. So transfers from the originator who posed as a virtual creditor do not exist in the eyes of the law — if they are shown to be lacking in consideration paid for the underlying obligation, as per Article 9 §203 Uniform Commercial Code, adopted in all 50 states. The transfers were merely part of the illusion of maintaining the apparent existence of the loan transaction with homeowners.
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And this brings us to the strategies to be employed by homeowners in contesting foreclosures and evictions based on foreclosures. Based upon my participation in review of thousands of cases it is always true that any question regarding the existence and ownership of the alleged obligation is treated evasively because the obligation does not exist and cannot be owned.
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In court, the failure to respond to such questions that are posed in proper form and in a timely manner is the foundation for the victory of the homeowner. Although there is a presumption of ownership derived from claims of delivery and possession of the note, the proponent of that presumption may not avail itself of that presumption if it fails to answer questions relating to rebutting the presumption of existence and ownership of the underlying obligation. Such cases usually (not always) result in either judgment for the homeowner or settlement with the homeowner on very favorable terms.
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The homeowner is not getting away with anything or getting a free house as the investment banks have managed to insert into public discourse. They are receiving just compensation for their participation in this game in which they were drafted without their knowledge or consent. Considering the 1200% gain enjoyed by the investment banks which was enabled by the homeowners’ participation, the 8% payment to the homeowner seems only fair. Further, if somehow the homeowners’ apparent obligation to pay the investment bank survives, it is subject to reformation, accounting, and computation as to the true balance and whether it is secured or not. 
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The obligation to repay the consideration paid by the investment bank (through intermediaries) seems to be a negation of the consideration paid. If that is true, then there is neither a loan contract nor a securities contract. There is no contract because in all cases the offer and acceptance were based upon different terms ( and different deliveries) without either consideration or execution of the terns expected by the homeowner under the advertised “loan contract.”
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Payments By Homeowners Do Not Reduce Loan Accounts

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Each time that a homeowner makes a payment, he or she is perpetuating the myth that they are part of an enforceable loan agreement. There is no loan agreement if there was no intention for anyone to be a lender and if no loan account receivable was established on the books of any business. The same result applies when a loan is originated in the traditional way but then acquired by a successor. The funding is the same as what is described above. The loan account receivable in the acquisition scenario is eliminated.
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Once the transaction is entered as a reference data point for securitization it no longer exists in form or substance.

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For the past 20 years, most homeowners have been making payments to companies that said they were “servicers.” Even at the point of a judicial gun (court order) these companies will fail or refuse to disclose what they do with the money after “receipt.” Because of lockbox contracts, these companies rarely have any access to pools of money that were generated through payments from homeowners.
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Like their counterparts in the origination of transactions with homeowners, they are sham conduits. Like the originators, they are built to be thrown under the bus when the scheme implodes. They will not report to you the identity of the party to whom they forward payments that they have received from homeowners because they have not received the payments from homeowners and they don’t know where the money goes.
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As I have described in some detail in other articles on this blog, with the help of some contributors, the actual accounting for payments received from homeowners is performed by third-party vendors, mostly under the control of Black Knight. Through a series of sham conduit transfers, the pool of money ends up in companies controlled by the investment bank. Some of the money is retained domestically while some is recorded as an offshore off-balance-sheet transaction.
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In order to maintain an active market in which new certificates can be sold to investors, discretionary payments are made to investors who purchase the certificates. The money comes from two main sources.
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One source is payments made by homeowners and the other source is payments made by the investment bank regardless of whether or not they receive payments from the homeowners. The latter payments are referred to as “servicer advances.” Those payments come from a reserve pool established at the time of sale of the certificates to the investors, consisting of their own money, plus contributions from the investment bank funded by the sales of new certificates. They are not servicer advances. They are neither in advance nor did they come from a servicer.
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Since there is no loan account receivable owned by anyone, payments received from homeowners are not posted to such an account nor to the benefit of any owner of such an account (or the underlying obligation). Instead, accounting for such payments are either reported as “return of capital” or “trading profits.” In fact, such payments are neither return of capital nor trading profit. Since the investment bank has already zeroed out any potential loan account receivable, the only correct treatment of the payment for accounting purposes would be “revenue.” This includes the indirect receipt of proceeds from the forced sale of property in alleged “foreclosures.”
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By retaining total control over the accounting treatment for receipt of money from investors and homeowners, the investment bank retains total control over how much taxable income it reports. At present, most of the money that was received by the investment bank as part of this revenue scheme is still sitting offshore in various accounts and controlled companies. It is repatriated as needed for the purpose of reporting revenue and net income for investment banks whose stock is traded on the open market. By some fairly reliable estimates, the amount of money held by investment banks offshore is at least $3 trillion. In my opinion, the amount is much larger than that.
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As a baseline for corroboration of some of the estimates and projections contained in this article and many others, we should consider the difference between the current amount of all the fiat money in the world and the number and dollar amount of cash-equivalents in the shadow banking market. In 1983, the number and dollar amount of such cash equivalents was zero. Today it is $1.4 quadrillion — around 15-20 times the amount of currency.
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Success in Litigation Depends Upon Litigation Skills: FOCUS

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I have either been lead counsel or legal consultant in thousands of successful cases defending Foreclosure. Thousands of others have been reported to me where they used my strategies to litigate. Many of them resulted in a judgment for the homeowner, but the majority were settled under the seal of confidentiality.
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Thousands more have reported failure. In reviewing those cases it was clear that they were either litigated pro se or by attorneys who were not skilled in trial practice and who had no idea of the principles contained in this article and my many other articles on this blog. I would describe the reason for these failures as “too little too late.” In some ways, the courts are designed more to be final than to be fair. There are specific ways that information becomes evidence. Most people in litigation do not understand the ways that information becomes evidence and therefore fail to object to the foundation, best evidence, hearsay etc.
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Even the people that submit wee phrased and timely discovery demands fail, more often than not, to move for an order to compel when the opposition fails or refuses to answer the simple questions bout the establishment, existence, and ownership of the underlying alleged obligation, debt, note or mortgage. Or they failed to ask for a hearing on the motion to compel, in which case the discovery is waived. Complaining about the failure to answer discovery during the trial when there was no effort to enforce discovery is both useless and an undermining of the credibility of the defense.
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Since I have been litigating cases for around 45 years, I don’t expect younger attorneys to be as well-versed and intuitive in a courtroom as I have been. It’s also true that many lawyers, both older and younger than me, have greater skills than I have. But it is a rare layperson that can win one of these cases without specific training knowledge and experience in motion practice and trial law.
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In the final analysis, if the truth was fully revealed, each foreclosure involves a foreclosure lawyer who does not have any idea whose interest he/she is representing. They may know that they are being paid from an account titled in the name of the self-proclaimed servicer. And because of that, they will often make the mistake of saying that they represent the servicer. They are pretty careful about not specifically saying that the named plaintiff in a judicial foreclosure or the named beneficiary in a nonjudicial foreclosure is their client. That is because they have no retainer agreement or even a relationship with the named plaintiff or the named beneficiary. Such lawyers have generally never spoken with anyone employed by the named plaintiff or the named beneficiary.
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When such lawyers and self-proclaimed servicers go to court-ordered mediation, neither one has the authority to do anything except show up. Proving that the lawyer does not actually represent the named trustee of the fictitious trust can be very challenging. But there are two possible strategies that definitely work.
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The first is to do your legal research and find the cases in which investors have sued the named trustee of the alleged REMIC trust for failure to take action that would’ve protected the interest of the investors.
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The outcome of all such cases is a finding by the court that the trustee does not represent the investors, the investors are not beneficiaries of the “Trust,” and that the trustee has no authority, right, title, or interest over any transaction with homeowners. Since the named trustee has no powers of a trustee to administer the affairs of any active trust with assets or a business operating, it is by definition not a trustee. For purposes of the foreclosure, it cannot be a named party either much less the client of the attorney, behind whom the securitization players are hiding because of a judicial doctrine called “judicial immunity.”
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The second thing you can do is to ask, probably during mediation at the start, whether the lawyer who shows up is representing for example “U.S. Bank.” Or you might ask whether US Bank is the client of the lawyer. The answer might surprise you. In some cases, the lawyer insisted that they represented “Ocwen” or some other self-proclaimed servicer.
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Keep in mind that when you go to mediation, frequently happens that it is attended by a “coverage lawyer” who might not even be employed by the Foreclosure bill. Such a lawyer clearly knows nothing about the parties or the case and will be confused even by the most basic questions. If they fail to affirm that they represent the named trustee of the named fictitious trust, that is the time to stop  the proceeding and file a motion for contempt for failure to appear (i.e., failure of the named plaintiff or beneficiary to appear since no employee or authorized representative appeared.)
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And the third thing that I have done with some success is to make an offer. You will find in most cases that they are unwilling and unable to accept or reject the offer. A substantial offer will put them in a very bad position. Remember you are dealing with a lawyer and a representative from the alleged servicer who actually don’t know what’s going on. Everyone is on a “need to know” footing.
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So if you make an offer that the lawyer thinks could possibly be reasonable and might be acceptable to an actual lender who was holding the loan account receivable, the lawyer might be stuck between a rock and a hard place. Rejection of an offer that the client might want to accept without notifying the client is contrary to bar rules.
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But both the lawyer and the representative of the alleged servicer know that they have no authority. So they will often ask for a continuance or adjournment of the mediation. At that point, the homeowner is well within their rights to file a motion for contempt. In most cases, the court order for mediation requires that both parties attend with full authority to settle the case. In plain language, there is no reason for the adjournment. But they need it because they know they have no authority contrary to the order mandating mediation. Many judges have partially caught on to this problem and instruct the foreclosure mill lawyer to make sure he doesn’t need to “make a call.”
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Every good trial lawyer knows that they must have a story to tell or else, even if the client is completely right, they are likely to lose. You must focus on the main issues.
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The main issue in foreclosure is the establishment, existence, and ownership of the alleged underlying obligation. All of that is going to be presumed unless you demonstrate to the court that you are seeking to rebut those presumptions. There can be no default and hence no remedy is there is either no obligation or no ownership of the obligation by the complaining party.
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Discovery demands should be drafted with an eye towards what will be a motion to compel and proposed order on the motion to compel. They should also be drafted with an eye toward filing a motion in limine. Having failed and refused to answer basic questions about the establishment, existence, and ownership of the alleged underlying obligation, the motion in limine would ask the court to limit the ability of the foreclosure mill to put on any evidence that the obligation exists or is owned by the named Plaintiff or beneficiary. They can’t have it both ways.
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Failure to follow up is the same thing as waiving your defenses or defense narrative.
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So that concludes my current attempt to explain how to win Foreclosure cases for the homeowner. I hope it helps.
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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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CLICK HERE ORDER ADMINISTRATIVE STRATEGY, ANALYSIS, AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection, or enforcement of your obligation. Suggestions for discovery demands are included.
*
CLICK HERE TO ORDER TERA – not necessary if you order PDR PREMIUM.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
*
CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR) (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
*
FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
  • But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.
  • Yes you DO need a lawyer.
  • If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.
*
Please visit www.lendinglies.com for more information.

Why are conditions precedent so important in foreclosure cases?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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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.Suggestions for discovery demands are included.
*
CLICK HERE TO ORDER TERA – not necessary if you order PDR PREMIUM.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
*
CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR) (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
  • But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.
  • Yes you DO need a lawyer.
  • If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.
*
Please visit www.lendinglies.com for more information.

The Key to Winning is Aggressive Discovery and Compliance with Court Orders

I have just received a slew of inquiries about what to do when the  foreclosure mill files evasive responses and objections. Here is the answer. Discovery consists of the following steps toward victory:
  1. Framing your answer, affirmative defenses and/or allegations such that you are challenging the status and ownership of the underlying debt.
  2. Draft your discovery demands such that they all relate to status and ownership of the debt and the right to represent the designated Claimant or Plaintiff.
  3. File a motion to compel answers after you receive evasive answers and nonsensical objections. Get a hearing. Appear at the hearing with a good argument as to why your discovery will lead to the discovery of admissible evidence that is relevant to the case at bar. Get an order compelling discovery response.
  4. File motion for sanctions after you again receive evasive answers and nonsensical objections. Get a hearing. Appear at the hearing with a good argument as to why your discovery demands are necessary for your defense and will lead to the discovery of admissible evidence that is relevant to the case at bar. Get an order on sanctions in which the court will probably give them one more chance to comply with the rules.
  5. File renewed motion for sanctions after you again receive evasive answers and nonsensical objections. Get a hearing. Appear at the hearing with a good argument as to why the opposition should be found in contempt of court order, in contempt of court procedural rules, and ask for striking their pleadings as long as they are unwilling to provide answers and documents that show proof they paid value for the underlying obligation. Get an order on sanctions in which the court will probably give them one more chance to comply with the rules.
  6. File a motion in limine. Ask the court to limit evidence on the existence and ownership and status of the debt. Get a hearing. Appear at the hearing with a good argument.
Your pleadings should include something like the following:
Opposing counsel has filed a common place boilerplate response to simple requests whose purpose is to reveal the status and ownership of the subject obligation, which is the central or sole issue in the case at bar. Opposing counsel seems to want the court to get distracted into other areas of inquiry or law. The plain truth of the case at bar is that if the designated plaintiff owns the debt and the defendant has failed to pay that debt, then a declaration of default is proper and foreclosure proceedings are appropriate.
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But the reverse is also true. If opposing counsel cannot confirm ownership of the debt despite lawful discovery propounded in accordance with the rules of court, then there is no case at all. In such event, Defendant is entitled to the finding that any presumption of ownership of the debt has been rebutted and an inference that no such ownership exists. Opposing counsel could come back and produce evidence that his “client” paid for the debt — but only after complying with the rules of discovery. Otherwise a motion in limine would bar any such evidence at trial, thus ending the case.
*

The objections are based upon the disingenuous assertion that the requests are not related to the issues of the case. To be clear, as stated in Defendant’s Answer and Affirmative defenses, the issues raised by Plaintiff and defendant are the same — the status and ownership of the debt that the Opposing counsel seeks to enforce. Either the debt exists and is owned by the designated Plaintiff who is represented by opposing counsel or it does not exist or it is not owned by the designated Plaintiff.

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If opposing counsel maintains an attorney client relationship with an existing legal entity that claims it owns the underlying debt and has been injured by “nonpayment” then counsel has every right to plead, object and otherwise represent the claimant in court.
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But if opposing counsel maintains no attorney client relationship with any name included in the designation of Plaintiff, then they have no right to claim any right to represent or pursue any claim on behalf of a third party who is not present in the case.
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So questions about the true nature of the relationship between opposing counsel and the designated Plaintiff are highly relevant and any objection thereto is dilatory and a complete waste of the time of the court and Defendant’s counsel. Since opposing counsel has also made a demand for recovery of attorney fees and costs, Defendant  is obviously entitled to know the nature and terms of the contract for legal services — and the parties thereto.
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Further, if the designated Plaintiff — or some name contained within the label of the designated Plaintiff — has not paid value for the underlying obligation, then the action fails for lack of compliance with Florida statutes adopting in whole and verbatim Article 9 §203 of the Uniform Commercial Code which states unequivocally that as a condition precedent to enforcement of a security instrument, the claimant must have paid value for the underlying obligation. If the designated Plaintiff has not paid value, then the action must be dismissed for failure of condition precedent.
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Further, failure to have made such payment eliminates the implied (but unstated) assertion of harm since no harm could come to anyone who did not own the debt. This eliminates the foundation for jurisdiction over both subject matter (the claim for unpaid debt) and personal jurisdiction over the designated Plaintiff who has no claim as well as the Defendant who is under no duty to defend a baseless claim.
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For The sake of justice, finality and judicial economy, such boilerplate objections should be rejected both to stop opposing counsel in this case and so serve as a deterrent in the many foreclosure cases that will soon clog the court system again.
*
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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*
CLICK HERE ORDER ADMINISTRATIVE STRATEGY, ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation.Suggestions for discovery demands are included.
*
CLICK HERE TO ORDER TERA – not necessary if you order PDR PREMIUM.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
*
CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR) (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
*
FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
  • But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.
  • Yes you DO need a lawyer.
  • If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.
*
Please visit www.lendinglies.com for more information.

Careful what you say in “Hardship Letter”

Modifications are tricky. They are trickier than you think. First of all the offer is made by a company who has no right to act as “servicer” or to change the terms of your contract. By changing the apparent lender or creditor to the named servicer, the agreement is probably tricking you into accepting a virtual creditor in lieu of a real one.

But the most important trick is that what they are really looking for is a direct or tacit acknowledgement of the status and ownership of the debt. So if you say that this “servicer” did something or that “lender” did that, you are admitting that the company who presents itself as servicer is inf act an authorized entity to administer, collection and enforce your loan.

And if you refer to a “Lender” you are directly  or tacitly admitting that a creditor exists and they own the loan and that raises the the almost irrebuttable presumption that the “lender” has suffered financial injury as a direct and proximate result of your “failure” to pay.

Not paying is not a failure to pay, a delinquency or a default if the party demanding payment had no right to do so. So if you admit the default in your “hardship” letter you are putting yourself into the position of defending against compelling arguments that you waived any right to deny the default or the rights of the parties to enforce the debt, note or mortgage.

I recognize that there is the factor of coercion and intimidation in executing a modification (just to stop the threat of foreclosure, regardless of whether it is legal or not). But the question is whether the entire process of modification is a legally recognizable event.

If the offer comes from someone who has no ownership or authority to represent the owner of the underlying obligation then the offer is a legal nullity. But if it is accepted then there is a possibility that the homeowner might be deemed to have waived defenses. Also if the beneficiary of the agreement and the payments made would go to a party who does not own a loan account then the agreement has been procured by misrepresentation or implied misrepresentations.

Proper pursuit of discovery demands will most often result in an offer of settlement and modification that is simply too good to refuse. The reason is that your opposition  has no answers to your question that would not constitute an admission of civil or even criminal liability.

*
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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CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us. In the meanwhile you can order any of the following:
*
CLICK HERE ORDER ADMINISTRATIVE STRATEGY, ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
*
CLICK HERE TO ORDER TERA – not necessary if you order PDR PREMIUM.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
*
CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR) (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
*
FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
  • But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.
  • Yes you DO need a lawyer.
  • If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.
*
Please visit www.lendinglies.com for more information.

 

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

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:

  1. 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.
  2. File a motion to compel along with a memorandum of law citing to relevant cases that are exactly on point.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. File a motion for sanctions. along with a memorandum of law citing to relevant cases that are exactly on point.
  8. 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.
  9. 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.
  10. File a motion for contempt of court along with a memorandum of law citing to relevant cases that are exactly on point.
  11. 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.
  12. File a motion in limine along with a memorandum of law citing to relevant cases that are exactly on point.
  13. 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.
  14. File a motion for summary judgment along with a memorandum of law citing to relevant cases that are exactly on point.
  15. 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.
*

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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. 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 PRELIMINARY DOCUMENT REVIEW (PDR) (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
*
FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
  • But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.
  • Yes you DO need a lawyer.
  • If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.
*
Please visit www.lendinglies.com for more information.

Just like I said: Megabanks are doing just fine despite economic downturn — at the expense of investors, taxpayers and homeowners.

Major banks, including CitigroupJPMorgan and Morgan Stanley used massive trading revenues to beat profit expectations despite the continued struggles of the United States economy during the coronavirus pandemic. Those trading units tend to perform best when markets are volatile, helping to guard the major banks against economic struggles.

see https://www.cnbc.com/2020/07/17/without-big-wall-street-trading-arms-regional-banks-lean-on-mortgages-and-fees-to-beat-earnings.html

Way back in 2006 and 2007 and when I first started publishing articles about the mortgage meltdown (before most people realized there was a meltdown) I reported that the major banks were siphoning off much of the wealth contained inside the U.S.

I said that these mega banks were parking ill-gotten gains off-shore in various assets, — frequently using  a tax avoidance scheme based in Bermuda. And I said that they would repatriate that money only when they needed to do so.  And because they had taken trillions of dollars, they would forever use it to consistently report higher earnings whenever they needed to do so in order to maintain the value of their stock.

I said that they would do it by reporting higher trading profits. They are reporting higher trading profits merely by creating false trades at their trading desks between fictitious entities in which one of the subsidiaries is the “seller” who is reporting a profit.

Sure enough that is exactly what is happening. Small and regional banks don’t have that “nest egg.” They must rely on old fashioned fees and interest to earn money. But the big banks are reporting “trading profits” to offset deficits in interest and fee income caused by the huge economic downturn caused by coronavirus.

Part of those trading profits also come from foreclosures. The proceeds go to the megabanks, who have retained little or no financial interest in the alleged loans much less any losses from the alleged default.

There was no default in any obligation owed to any creditor because there is no creditor who maintains an accounting record on which it claims to own any homeowner debt, note or mortgage by reason of having paid value for it in exchange for a conveyance of ownership of the debt, note or mortgage from one who legally owns it.

Simple common sense. If you don’t own the debt you have no reason or authority to mark it “paid” even if you receive the money.  Homeowners and their lawyers should stop taking that leap of faith in which they admit the existence of a default. A default cannot exist on an obligation in which there is a complete absence of a legal creditor. Homeowners didn’t create this mess. It was all the megabanks who made a fortune stealing from investors and homeowners.

A default is the failure to perform an obligation or duty owed to a particular person — not a failure to perform a duty owed to the world in general.

There could be many reasons for the absence of a legal creditor — including the simple fact that everyone has received sufficient payments and settlements such that nobody needs to step into the shoes of a lender which could produce liability for violations of lending and servicing laws.

IT SHOULD NEVER HAVE BEEN THE BURDEN OF HOMEOWNERS TO PROVE THE EXISTENCE OF THE REAL CREDITOR. There isn’t one and the banks and their lawyers have been laughing at us for 20 years over getting away with that one. 

It was the mega banks that created loans without lenders — i.e., transactions in which there was no legal person or entity claiming ownership of the obligation.

The banks are using smoke and mirrors. They claim (through third party intermediaries) a “default” in the obligation to pay a nonexistent creditor. The money they receive from foreclosure is pure revenue offset only by the fees they pay to the other intermediary foreclosure players who exist solely to produce profits for themselves and the megabanks.

And pro se homeowners and even lawyers are confounded by this system. They admit the basic elements of the claim even though the basic legal elements are missing.

*
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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Does the REMIC Trust Exist?

In all jurisdictions, even if the trust has some assets, and therefore legal existence as a legal person, if the asset in question has not been entrusted to the trustee on behalf of beneficiaries, the existence of the trust is completely irrelevant. And all claims arising from the supposed existence of the trust are also irrelevant and lack Foundation.

I agree that the existence of the Trust might be a subject for debate.

However, the fact that a trust exists on paper does not mean that it exists relative to any loan or debt or note or mortgage.

In fact, the fact that it exists on paper does not mean that it exists at all in many states.

In those jurisdictions in which a trust is drafted on paper and recognized as a business entity, the trust is considered inchoate, which means sleeping. The failure to recognize this fact has led to the failure of many family trusts and the payment of high taxes.

In all jurisdictions a trust that does not have any assets, liabilities, income, expenses or business is not treated as a legal entity.

In all jurisdictions, even if the trust has some assets, and therefore legal existence as a legal person, if the asset in question has not been entrusted to the trustee on behalf of beneficiaries, the existence of the trust is completely irrelevant. And all claims arising from the supposed existence of the trust are also irrelevant and lack Foundation.

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An asset cannot be entrusted to the trust or trustee unless title to the asset has been conveyed to the trustee to hold in trust according to the terms of the trust agreement. And there can be no conveyance from someone who doesn’t own the asset. The only way you get to own a debt is payment of consideration to someone who paid consideration for the asset. That is the law and it is not up for debate.
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It is the payment of consideration that determines ownership of an asset or debt or note or mortgage. 
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Note that the PSA  often cited as the trust agreement often is not the trust agreement and that even if it says it is the trust agreement there is another instrument in which the named trustee acknowledges that its purpose is to receive bare legal title to security instruments and notes on behalf of the investment bank who often also serves as Master servicer. I have never seen such a conveyance to the trust or trustee from anyone who owned the debt note or mortgage.
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And without conveying the debt, there can be no conveyance of the mortgage. therefore all assignments (without a concurrent sale and purchase of the debt from someone who owned it) avoid.
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But if you don’t raise this issue you might waive it. and by waiving it you are giving a windfall to the participants in a business venture that has the title of a foreclosure action. That business venture os for profit and has nothing to do with recovering losses from an unpaid loan or debt.

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This is important because when the Foreclosure Mills pursue foreclosure they have only one witness. The witness is a robo witness who is employed as an employee or independent contractor of a self-proclaimed servicer. the witness provides testimony that the records introduced by the servicer are the records for the trust.
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This testimony is either direct testimony or it raises the inference or presumption that the records are the records of the trust, because the servicer is supposedly working for the trust. But if the trust has nothing to do with the “loan,” then the servicer is working for an entity that has no legal relationship with the debt note or mortgage.
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That is the point at which the defense and raised a motion to strike, once it has been established that this fact pattern is the only one before the court. Assuming defense Counsel has raised the appropriate objections along the way, the record submitted by the self-proclaimed servicer should be stricken from the record as not being the records of a creditor. The case collapses because no evidence is legally before the court.
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Even if the servicer was actually collecting payments or actually doing anything, which is clearly debatable since most of these activities are probably actually conducted by Black Knight, the appearance of the servicer would not be the appearance of the Creditor, who is therefore not the named claimant or plaintiff.
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The servicer becomes a witness at best and not a very credible one. If discovery has been conducted properly, the defense can clearly raise the inference that the servicer has an interest in the outcome of the litigation. This means that the attempt to get the servicer’s records into evidence as an exception to the hearsay rule can be defeated. This is especially true if the servicer is not actually processing any business transactions. This dovetails with the evidence that the lockbox system is actually controlled by Black Knight.
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And THAT is important because it undercuts the claim of a “boarding process” which in most cases has never existed. It is only through the fictitious boarding process that the records of prior self–proclaimed servicers are able to come into evidence. The truth is that all of those records are mere projections and estimates and the foreclosure mills depend upon the failure of the homeowner and their counsel to actually compute whether the records are even true.
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One last comment is that one of the big failures in foreclosure defense is the failure to question who is receiving payments from the self-proclaimed servicer. An inquiry into this subject would reveal that the servicer is not receiving any payments and is not making any payments to anyone else. This would undercut the foundation for the inference or presumption that the self-proclaimed servicer is actually performing servicer functions.
*
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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Hawaii Supreme Court: Bond on Appeal Should be Based Upon Evidence of Potential Loss Pending Appeal, Not the Value of the Property.

Many thanks again to Attorney Gary Dubin for bringing this to my attention.

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The current hodgepodge of decisions that I have always maintained were merely vehicles to discourage appeals is taken to task in this well-reasoned decision.

In Hawaii the rule is now no bond pending appeal or low bond pending appeal.

The Hawaii Supreme Court has merely applied principales that are already stated in all US jurisdictions and applied it to limit the discretion of the trial court or even an appellate court to set an arbitrary amount to stay the effect of an adverse judgement.

But this does not mean that a stay order will always be granted.

see Kelepolo Hawaii decision 2020-scwc-18-0000138

The reason that judges abuse their discretion in setting bond for appeals is that they have already made a decision and they don’t want it reversed. Reversals look bad on a judge’s record and too many reversals can impede their ambitions to be on higher courts or higher political office.

And up until now the court’s have been reluctant to intrude upon the wide discretion allowed to trial courts and appellate courts (either one can grant a stay and set bond).

Finally an element stated but rarely used as the basis for a decision on whether the lower courts based their discretion has been elevated to where it belongs, to wit: courts may not use high bond to discourage appeals.

Just because the property is worth $1 million does not mean that the bond should be set at $1 million — unless there is clear and convincing evidence that the entire value of the property will be lost pending appeal.

In a rising market it is perfectly acceptable to have no bond, particularly where bond causes undue hardship (like bankruptcy) on the appealing party.

While authoritative in Hawaii this case may be cited as persuasive and linked to the state specific decisions of every state in the U.S. It merely states the results of the doctrines already used in all states.

*
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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The Best Article Yet on Illegal and Immoral Practices by Investment Banks Making False Claims About “Securitization of Debt” by Francesca Mari on Aaron Glantz Book “Homewreckers”

Francesca Mari in the JUNE 11, 2020 ISSUE of The New York Review of Books, has written a truly excellent piece on a book called “Homewreckers” by Aaron Glantz. 

If you ever had any doubt about whether homeowners have the moral high ground and whether the investment bankers have no moral or legal grounds for what they did, you should read the article and buy the book. ( I get nothing from sales of the book and I have not met either author — although I will contact them for interviews on my show).

The only point that I think both Mari and Glantz miss is that the loans were never securitized. Securitization is the process of selling assets in pieces to multiple investors. No residential loan to my knowledge has ever been sold to investors even on paper much less in reality.

Let me put it this way: there has never been a transaction in which investors buying certificates, investment banks or anyone else paid value in exchange for ownership of any debt, note or mortgage. They paid value but not for the loan. And they received the benefit of their bargain.

At the end of the day there is nobody who has paid value in exchange for a conveyance of ownership of the debt, note or mortgage. Claims of ownership of the debt, note or mortgage are all false even though they are documented. Documents are not transactions. They are evidence of transactions. And if there was no such transaction then the documents are false.

And that is why all of the documents in foreclosures are false, fabricated, forged, backdated and robosigned. The documents are false but they are presumptively valid if they conform to statutory requirements. The point missed by most homeowners, lawyers and judges is that just because they are presumed valid doesn’t mean they cannot be tested and rebutted.

Sham Affidavit Rule in Federal Courts Might Apply to State Court Actions in Foreclosure

A sham affidavit is one that asserts facts that are inconsistent with facts alleged in pleadings or previously proffered in discovery, prior affidavit or proffered documents. This happens a lot in foreclosure cases when foreclosure mills file motions for summary judgment. They often casually change the claimant by reference or name adding some power of attorney or other claim that is not attached or explained. The sham affidavit rule bars the affidavit in its entirety if it asserts facts or positions that are not consistent with prior assertions.
The sham affidavit rule can apply to attempts to contradict not only prior deposition testimony, but prior written discovery as well. We’ve blogged about the sham affidavit rule a number of times. Briefly, the rule is that:
[A] party cannot create a genuine issue of fact sufficient to survive summary judgment simply by contradicting his or her own previous sworn statement (by, say, filing a later affidavit that flatly contradicts that party’s earlier sworn deposition) without explaining the contradiction or attempting to resolve the disparity.
Cleveland v. Policy Management Systems Corp., 526 U.S. 795, 805-06 (1999) (string citation omitted). See also Perma Research & Development Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir. 1969) (generally viewed as the seminal case on sham affidavits). https://www.lexology.com/library/detail.aspx?g=60c7a1e1-4d34-4916-9a12-f41ab8fc5bf6
If a sham affidavit is filed, it is therefore barred unless the affidavit itself refers to the prior assertions and explains the differences that appear in the current affidavit. This explanation is not something that anyone in the foreclosure mill or servicer can do since they don’t have access to any of the facts causing the issuance of a default letter or foreclosure in the first place. They are just following orders.

*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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BETA TEST — DISCOVERY SUPPORT

Discovery

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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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How to Deal with Motion for Substitution of Plaintiff in Foreclosure Actions

The single basic tool of the investment banks, who are secretly running the whole foreclosure show, is musical chairs. By rotating the players they can successfully bar the courts and the litigants from knowing or pinning down who is real and what is real. All of that ends if you sue the investment bank.

Look at any foreclosure in which claims of securitization are known or suspected and you will find “rotation”.

In nonjudicial states it starts with “Substitution of Trustee” on the deed of trust which can be done without any motion.

Before or after that there is a change in the name of the servicer, which has perplexed judges since I first entered the picture in 2006.

Then there was a change in the credit bid after the foreclosure was complete or during the foreclosure sale where a new party mysteriously ended up “owning” the property.

And now we see with increasing frequency, the substitution of a new claimant or plaintiff during the foreclosure proceedings.

Motion for substitution of Plaintiff are becoming the rage simply because most state courts require a wrongful foreclosure action to be against the party who initiated the action. So the investment banks simply took their cue from that. They designate a new Plaintiff or a new claimant during the proceeding. Presto there is no wrongful foreclosure action. But there still may be the normal abuse of process claim.

Either way, they have no right to designate the first or the new Plaintiff or claimant. 


I would say that the likelihood of successful opposition to the motion for substitution of plaintiff is very low, as long as some explanation is offered. But this should trigger aggressive discovery where you go after the transaction by which the new plaintiff became the designee.

In a nutshell no such transaction exists because there was also no transaction by which the first Plaintiff became a creditor. It is all smoke and mirror. 


I am not saying that you shouldn’t oppose the motion for substitution of plaintiff. What I am saying is that the judge will regard it as merely a housekeeping chore until you raise the central issues of your defense narrative.

The moral of the story is that if you are going to sue for wrongful foreclosure you should be naming the investment bank that was calling the shots. Everyone else is a moving target with plausible deniability. That may not always be so easy to determine, but it isn’t impossible. We can help with that.

If you go after the investment bank you will be able to overcome the plausible deniability and technical requirements of claims based upon wrongful foreclosure. You can say that the action was brought by them using the name of a sham conduit. The change in “Plaintiff” therefore changes nothing.

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

The Curious Distraction of Applying “Adverse Possession” Rules to Foreclosures that are Time Barred by Statutes of Limitation.

The reference to “adverse possession” in any of these cases is not about legally changing title due to the statute of limitations enabling adverse possession. I know what that looks like. Possession that is adverse is not the legal definition of the statute governing “adverse possession”. Not even close. In this case the court was using the words “adverse possession” loosely. An adverse possession claim is procedural and substantive.
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For adverse possession to even be an issue that a court could adjudicate one would need to file a complaint alleging that the Plaintiff did NOT have legal title but had possessed the property is an open, adverse way directly against the interests of the title owner. No such complaint has been filed or even referenced in your case or this opinion from the court.
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In the absence of a claim in which a Plaintiff seeks specific relief, the court has no authority or jurisdiction to even consider, much less decide a case. Any ruling predicated on the existence of such a claim  is ultra vires (beyond the authority of the court).
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The only possible procedural exception would be that evidence was admitted without objection into the court record supporting proof that the Plaintiff was occupying land owned by the defendant and that such possession was open, notorious, continuous, hostile, adverse, exclusive and all the other elements of adverse possession. Then a motion to amend the pleading to conform to the evidence could be heard and granted. No such motion was brought in your case or any of these case you are showing me.
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So none of the cases are or even could be adverse possession cases. Opposing counsel is standing adverse possession on its head. She is saying that you are the owner and you are the possessor but that your ownership and possession are adverse to their interest in a process called foreclosure. Note that by definition they are not saying they own or possess the property already. And they are not even saying they have a right to possession. They are saying they have a right to foreclose. The issue of possession could not even be before the court until the court grants foreclosure and there is a sale of the property.
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The right to foreclose is based upon procedural and substantive law. The right to foreclose comes from contract. The contract is the mortgage. The mortgage, contrary to what everyone usually says, has many provisions in it that state that the mortgagor/owner of the property has agreed to undertake certain obligations of maintenance, insurance, and otherwise prevent the value from declining in value except for ordinary wear and tear and passage of time.
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In addition to those covenants the mortgage provides a right to the mortgagee to foreclose if the mortgagor is in breach of the mortgage covenants, one of which is the payment of money in accordance with the terms and conditions of a promissory note. The payment of money is usually referred to as the note which sets forth how much money and the terms of payment. Thus the owner of the property is a mortgagor under the mortgage and an obligor under the note. Those are two separate instruments. 
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If the note is evidence of an underlying debt like a loan from the Payee to the Payor, then the underlying debt is merged into the note by judicial doctrine to prevent the appearance of two liabilities for the same debt. If the named payee on the note is not actually the party who loaned the money then the merger doctrine does not apply and you have two legal liabilities — one because the debtor received money and the other because the same person executed a negotiable instrument that creates a separate liability regardless of the facts and circumstances of the “loan.”
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In such circumstances the Payor could complain and defend that it received no consideration from the payee and avoid liability at trial, but that would not result in dismissal of the lawsuit. That would be a question of fact for the trier of fact to decide.
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And if the negotiable instrument (note) was purchased for value in good faith and without knowledge of the Payor’s defense of lack of consideration, it is quite possible for a judgment to be entered against the Payor, which could include foreclosure of the mortgage which provides for foreclosure in the event that the obligor/mortgagor breaches the terms of the note. And all of that would be in addition to claims that could be made by the real owner of the debt to get paid. The recourse for the homeowner in such a situation is solely against the party who lured him into a signing a note without ever providing the consideration and without any intent to do so.
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As you can see from this exposition, it is entirely possible for the homeowner to theoretically lose twice and be left with a remedy against a now bankrupt originator.
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All of the above is necessary context to see where these courts are going wrong about the existence of the mortgage lien and its enforceability. They are entirely correct in seeing the note as distinguishable from the mortgage and even distinguishable from the debt. They could and often are three separate legal issues, each with its own set of rules. And those rules can vary depending upon the type of proceedings in which they are considered.
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This is why in bankruptcy the lien survives discharge of the obligation for the debt. That isn’t logic. It is just law. The obvious theory would be how can they foreclose on a debt that no longer exists? And the answer is a legal fiction in which the debt is somehow owed by the land, which I know is absurd but that is the law. However that has nothing to do whatsoever with the statute of limitations and the rules of procedure in a state court. And there is zero support in statutes or case law that it does. That is also the law. It’s not matter of persuasive logic.
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Your case is not a bankruptcy case nor does the defense rely upon discharge from bankruptcy which is the only proceeding in which the debt is eliminated as personal liability of the debtor but is retained as a liability against the land. No such doctrine applies in any other proceeding in federal or state courts. Nor has any case even considered the proposition. Nobody has ever suggested that the bankruptcy rule could be applied as doctrine to somehow change other statutory laws passed by the legislature that might bar collection, administration or enforcement of a debt, note or mortgage. It doesn’t exist and your opposition is not saying it does exist. So the issue does not exist.
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What your opposition is tapping into is the idea that the mortgage and the note are separate contracts each susceptible to independent enforcement. For example even if a homeowner is up to date on payments due on a legal debt owed to a real lender the lender could still foreclose if the homeowner failed to comply with local laws and ordinances such that the value of the collateral was threatened and the government agency was threatening fines, liens and foreclosure. The mortgage contract, is, as your opposition suggests, independent up to a point.
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The obvious logical argument in the absence of an enforceable underlying legal debt, is whether the covenants under the mortgage survive even if the note is not enforceable. I would point out here that your opposition is not advancing any such argument and that therefore even if the court were aware of this analysis it would still be wrong to consider it because the court is supposed to be deciding issues brought before it by the parties — not advocating for one side or the other.
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If a Judge, as former trial lawyer, sees something that might advance the cause of one side or the other, the judge is required to be silent unless there are grounds for the court to sua sponte decide on an issue not raised by either side — like jurisdiction.
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There are several logical and legal reasons why the mortgage continues to exist even though the underlying debt is unenforceable, which is most certainly and indisputably the case in your situation. One is simply that the statute of limitations can be waived or renewed by conduct of the debtor. While this has not happened YET, the fact that it is unlikely is speculative and no reason to cancel the mortgage lien.  And because of that possibility — along with the fact that no statute cancels the mortgage when the action is barred on the underlying debt — the mortgage lien continues to survive as a lien.
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The mortgagee, assuming the assignments of mortgage were valid and legal and supported by consideration (very problematic in your situation), has potential or inchoate rights that cannot be extinguished. But that does not give any right to the mortgagee to foreclose the mortgage for the sole reason that the mortgagor, as payor/obligor on the note breached the note — at least not where such a claim is time barred by an unambiguous express statute addressing that claim.
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The enforcement of the obligation is barred by the statute of limitations even though the breach is self-evident. This is a matter of public policy that the legislature of each state decides. Your state may have decided that if you don’t file the claim with six years of the breach you can’t bring the claim later. That is the law.
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Only a law that that specifically expressly supersedes another law can be used to avoid the legal requirements and restrictions of the other law. No such law has been invoked in any of these cases (because none exists) and there is no pronouncement from any court that the law of adverse possession supersedes the statute of limitations on debt because only the legislature can do that.
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The current statute of limitations is clear, unambiguous and expressly articulated.  If the legislature had meant to make an exception for mortgage loans, lawmakers would have declared the exception in the current statute rather than some vague presumed intent to allow for a conflict of laws where none exists.
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The conflict only exists if it is invented. Opposing counsel has invented the conflict and convinced the court to follow her proposed “logic.” But like all arguments, if you start with the wrong premise, you end up with the wrong result. There is no conflict of laws and therefore there is no basis for the court to presume one exists.
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Whether the debt exists or not is a separate question. The fact that a claim is time barred on a debt does not extinguish the debt unless there is a law that says that is the case. Some states have passed such laws.
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Assuming the debt exists for purposes of this argument, there must be a creditor who has paid value for the debt in exchange for ownership or conveyance of that debt. It is pure speculation as to the reason why no claim was filed for within the express statutory period of six years after what opposing counsel claims was a default and acceleration of the debt. And it doesn’t matter what the reason was.
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The claim is barred as matter of statute and public policy. The court receives no argument, assertion or basis for tolling the statute of limitations. That issue does not exist before the court.
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Hence the only possible conclusion is that the statute of limitations applies and the current claim is time-barred; the mortgage agreement cannot be enforced in the future unless and until, during the express term of the mortgage contract, the mortgagor renews the debt or otherwise breaches the terms and conditions of the mortgage agreement — and a legally recognized mortgagee seeks such enforcement.
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This will probably get me in plenty of hot water with lawyers. Homeowners should be winning foreclosures most of the time. The reason they don’t? — Ineffective Counsel.

The problem is not the judges. The problem is the lawyers who walk into court believing that the loan is real, claimant is real, the claim is real and that they are only looking for technical ways to get their client out of a valid deal.
The problem is exacerbated by magical thinking — that by pointing out bad acts by the foreclosure mill or servicer they will automatically cancel the mortgage, get quiet title and somehow the “debt” will disappear. Is it any wonder that judges are responding negatively to such assertions?
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Well I am rapidly coming to the conclusion that the primary basis for appeal in capital murder cases — ineffective counsel — is the real reason why homeowners think that the courts are ignoring the obvious. This is most manifest in a phenomenon I refer to as hallway trial lawyers. When they are speaking to their clients in the hallway outside the courtroom they sound great; but once inside the courtroom they are either mute or should be mute.
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Hallway lawyers can be great trial lawyers — if they would only prepare and obsessively roll the issues over in their mind as they approach a hearing or filing of a motion, pleading, or brief. And they would win far more often than they would lose if they did the work. That takes two things that most people lack — other than trial lawyers — commitment and courage. Like any performer you must give it your best and accept a pie in the face occasionally.
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In 45 years of litigation I have won and lost cases. Most of them I won. In hindsight I would say that virtually every loss is attributable to one factor —- lack of adequate planning, preparation and execution.
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My own experience is that when I have done my job as a litigator I have consistently successfully defended foreclosure cases because there is no case. That knowledge propels to me to object, challenge and refute basic assumptions in an orderly, timely and effective way. I am clear as to the basis of my objections and challenges and how it it lacks foundation, relevance or relies upon inadmissible statements or documents. And I am relentless. 
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While there are judges who simply refuse to consider any possibility of a homeowner victory, many of such judges can be turned when approached correctly. They are merely starting from assumptions they are required to make. They are not against the homeowner. They are for the rule of law.
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The problem is not the judges. The problem is the lawyers who walk into court believing that the loan is real, the claim is real and that they are only looking for technical ways to get their client out of a valid deal. The problem is exacerbated by magical thinking — that by pointing out bad acts by the foreclosure mill or servicer they will automatically cancel the mortgage, get quiet title and somehow the “debt” will disappear. Is it any wonder that judges are responding negatively to such assertions? 
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Why should any judge relieve a debtor of an obligation because of bad acts by a creditor? The answer is that they should not because if they did they would be destroying the foundation of a nation of laws. If you were owed the money then you would not think that is such a good idea either.
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That is why I strive to show the truth of the transaction between the homeowner and whoever sold the transactional documents for the homeowner to sign or the truth behind the acquisition of what had been a valid loan agreement.
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For the homeowner it was a loan and as soon as you admit that it was a loan, you are already in deep trouble. By admitting the loan you admit the existence of a conventional creditor and a conventional debtor. You also admit the existence of a conventional debt and you can’t contest  the non payment by the homeowner and therefore you are conceding that the homeowner is in breach of a loan agreement without excuse. Fabricating paperwork is no excuse to get out of paying a loan you received. You still owe the money.
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The lawyers and homeowners who complain that this gives them no place to go are missing the essential truth of Wall Street securitization: in nearly all cases the debt was never sold. If you start with the wrong premise you will always end up with the wrong result. 
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The entire enterprise was about selling and reselling private financial data of homeowners who for their part were tricked into thinking they were entering a loan agreement while the other side spared no effort in avoiding the title and liability of a lender under lending laws. That is not a loan and the agreement was not a loan agreement. 
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More importantly, the agreement might not be enforceable at all since (a) there was no meeting of the minds and (b) there was an absence of consideration caused by the payment of consideration together with an obligation to pay it back.
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For the investment banks this was solely about getting consent to sell private data and issuing sand trading securities based on the data not any debt. Anyone who does not understand the significance of that should probably not be litigating these cases. They will lose and thus contribute to the growing body of evidence that most people lose defending actions titled or labelled as foreclosures even though most people could win.
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Mass joinder and mass petitions to change the mandatory requirements for filing foreclosure actions can be done with direction from licensed people who actually understand that there is neither an actual claimant nor a claim in the creation, administration, servicing or enforcement of any transactional documents in which a homeowner is one of the parties.
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My opinion is that without central direction, preparation, investigation, and strategic and tactical planning by experienced trial lawyers, homeowners will continue to be food for a profitable scheme created and advanced by Wall Street.
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My opinion is that this is a massive social issue as well. By finally denying Wall Street banks of profit from foreclosures and all the profitable events leading up to foreclosure, the vast inequality of power and wealth can be addressed, at least in part.
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Neil F Garfield, MBA, JD, 73, is a Florida licensed 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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Why Homeowners Lose Their Homes to Crooked Banks

The first and foremost thing about this is that where any loan is subject to claims of securitization, that claim is false. So no investor ever  bought any loan, debt, note or mortgage. Not ever. All documents claiming to memorialize such transactions are false. So the designated claimant has no claim.

To win these cases you must be realistic about what you are up against. The justice system doesn’t care about the merits of any claim, defense or denial unless it is properly and timely presented in accordance with the established rules of procedure and laws of evidence. It is not really an oversimplification to say that noncompliance with the rules means you lose even if you are right.

I can file a lawsuit against you, the reader, for anything right now even though I have no claim and I can win — and maybe claim your property to satisfy the judgement. The fact that I never had a claim is irrelevant to the system. Once the judgment or order is entered that is the law of the case. This is what crooked banks are using as their means to gain more profit through foreclosures.

[Practice Note: there is a very real privacy issue that has not been adequately explored in connection with homeowner transactions. If the true nature of the homeowner transaction was to obtain consent to sell private data then the consideration might be zero — because the money given to homeowners was offset entirely by a duty to pay it back with interest. So in addition to a lack of informed consent, the failure of consideration might negate all consent. This might augment a claim for quantum meruit for the real plan: the issuance and trading of securities.] 

The presence of questions does not mean that there is an absence of evidence. While the burden of proof is on the claimant to establish the necessary elements for a prima facie case, procedural law favors the claimant, especially in foreclosure cases. Homeowners can and should win, but they often lose because they think that being right is enough.

The apparent facial validity of the documents presented means that even if the documents were fabricated and the plaintiff was misrepresented as having legal existence, for purposes of the case, the judge is required to presume that the claim is true and that the claimant is real. the perpetrators of such a fraud get to enjoy the fruits of their labor. the property is sold and the proceeds are distributed as revenue without any accountability.

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Merely denying those facts is insufficient. You must be able to produce evidence to the contrary, to wit: either facts that show that the presumption is untrue or, more likely, the fact that the Foreclosure Mill was unable to or unwilling to answer basic questions about the ownership and authority over the debt.

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Many lawyers and pro se litigants make a common error. They think that by denying the existence of the plaintiff or the claim that they have shifted the burden back to the claimant or at least the Foreclosure Mill.  This assumption is misplaced particularly in foreclosure litigation. theoretically the denial of a fact that has been alleged is sufficient to force the claimant to prove the allegation of fact. But in foreclosures, thanks to form pleading, very few facts actually need to be alleged in order for a Judicial or non-judicial foreclosure to proceed.
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The denial from the homeowner is therefore a denial of facts that have not been alleged. It gets worse. The presumption arising from documents that appear to have facial validity ends the matter unless the court is faced with credible and persuasive evidence to the contrary.
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And the Foreclosure mill is never going to admit that it doesn’t have a client who is a claimant, and it is never going to admit that the claim doesn’t exist.
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The only avenue open to the homeowner is the exhaustion of all procedures and remedies under the rules of discovery. At the conclusion of that process, the homeowner will be in a position to argue that the failure of the opposition to answer the most basic questions about the claim that they have submitted, combined with their refusal to even follow court orders, should result in sanctions and further, should result in an inference that the claimant doesn’t exist and that the claim is without merit.
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This would not automatically mean that the homeowner wins the case. While sanctions under these circumstances could include striking the pleadings or the claim or the proof of claim in bankruptcy court, the judge is probably going to be more inclined to grant a motion in limine by the homeowner that prevent the Foreclosure Mill from introducing any evidence of ownership or authority over the debt, note or mortgage.
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That SHOULD end it but often doesn’t. Even then many courts will leave open the possibility of producing actual proof of ownership or authority over the debt. Appellate courts have been inconsistent in reversing or affirming such orders.

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The fact that they did not prove the claim independently of the legal presumptions merely means that the judge was satisfied that the prima facie case had been established.

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So the way homeowners are often presenting their position is basically that the judge should not have assumed that the elements of a prima facie case had in fact been established. But that means that you had introduced sufficient evidence to cast doubt on the validity of the documents relied upon in the foreclosure. By that point, the judge has already decided that you didn’t. You raised questions and denied things but you proved nothing.
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So you are now so far down the road in the Foreclosure action that it is probably impossible to reopen any form of discovery. This is why I recommend in such cases that you file an independent lawsuit that could survive a motion to dismiss. By filing lawsuit you raise issues that can be subject of inquiry in discovery, depositions, and subpoenas duces tecum.

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I think pro se litigants in particular also might be confusing the difference between a void judgment and an erroneous judgment. Arguments often appear to be directed to an erroneous judgment, although they contain good arguments against jurisdiction, which could be directed to characterizing the judgment as void. You need to be more specific that the judgment is void and why and not confuse your arguments of error with your argument of lack of jurisdiction.
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This is not something you’re going to be able to do on your own. You need to hire an attorney.
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SECURITIZATION NOTES: All securitizations I have reviewed have one thing in common: the sale of certificates that do not convey any right, title or interest to any debt, note or mortgage. No other financial transaction takes place after that point — except payment of some of the investor money to homeowners. Tax court cases make this abundantly clear: holders of certificates have no secured interest in anything and no interest at all in the performance or enforcement of any obligation.
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The transaction with homeowners was simply acquiring consent from the homeowner to sell private data multiple times to multiple buyers.
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No payments from homeowners — either voluntary or involuntary — are ever forwarded to anyone who has paid money. No proceeds from foreclosure are ever paid to reduce any debt because there is no asset receivable on any balance sheet in which the debt is claimed.
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Thus the presentation of a payment history in court is a distraction from the fact that there is no evidence of any records of any company that claims a loss from nonpayment on a debt.
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A proper objection to the introduction of such a document could be lack of foundation and lack of relevance — unless there is testimony or other evidence linking the payment history with the books of account of the claimant, there is no claim. But like all objections, if not timely raised it is waived. 
Neil F Garfield, MBA, JD, 73, is a Florida licensed 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. IN FACT, STATISTICS SHOW THAT MOST HOMEOWNERS FAIL TO PRESENT THEIR DEFENSE PROPERLY. 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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Magic Bullet? Maybe this: the foreclosure “team” are all witnesses, not claimants

The fact that the foreclosure players know — or even witnessed — the fact that you refused to make any further payments makes them a witness, not a claimant. 
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The investment banks say they are not liable as lenders for noncompliance with lending laws. OK. A good lawyer can make a powerful argument for estoppel — the investment banks cannot take one position — that it wasn’t a loan in terms of regulation of lenders   — and then that it is a loan so they can foreclose without a creditor.
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Two wrongs don’t make something right. The fact that they used a shill as the originator doesn’t mean they are allowed or should be allowed to use another shill to falsely invoke foreclosure laws and procedures. You can’t foreclose on a debt that does not exist.
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Most homeowners take out their frustration by attacking the judge or the opposing lawyer. This is a mistake on many levels.
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My concern here is that you are far too interested in two subjects that have the least probability of you achieving anything. The object of your ire is understandable. But you may be playing into the hand of the banks if you continue.
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The Judge, even if he or she is the most reprehensible person on Earth, is simply untouchable without very specific evidence that links the Judge to a corrupt scheme in which the decision of the Judge is directly tied to the scheme and where the Judge receives a  specifically identified reward for a corrupt decision. This does not exist in your case and it rarely exists in any case. So attacks on the Judge’s integrity or intelligence will provoke what they would when you attack anyone for anything. They get defensive and antagonistic — just the opposite of what you need.

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The foreclosure mill, even if they too consist of the most reprehensible human beings on the planet, is considered immune from liability for misrepresenting things in court. You don’t need to agree with this for it to be true. And railing against that fact will get you nowhere. I have tried to go after the lawyers and the result has been consistently negative — claim dismissed because of “litigation immunity.”
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So going after the Judge and the lawyers is a waste of valuable time, money and energy — something that the banks need you to do because they are sitting on a plan that claims money due when there is no money due to them, if at all. That is foreclosure.
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So if you are addressing the Judge for example, you first do what you must do whenever you are attempting to establish rapport with anyone — find common ground. You talk about obvious things about which you all agree so you are perceived as reasonable.
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THEN you move on to your argument about how this situation does not lead to the same result as the conventional case of foreclosure where an actual creditor is actually claiming a right to payment of an actual debt that is actually carried on its books as an asset receivable, which means that nonpayment did in fact cause it financial injury.
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Under our laws and just plain common sense, if you see someone rob a bank for example, then you, as a witness, have no right to sue the robber for the money they stole; true simply because they didn’t steal it from you. Why should you get any money that was stolen from the bank? And that is your point. The fact that the foreclosure players know — or even witnessed — the fact that you refused to make any further payments makes them a witness, not a claimant. 
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And yet…. if you do make the claim against the robber and the bank failed to press its own claim, you could get a judgement especially if the robber failed to raise any defenses. After all he knows he stole the money. [I am not equating homeowners with robbers. I am equitating banks with a unscrupulous version of you, making a claim to which you and  they are not entitled to receive any redress under law or common sense.]
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The question is not whether you owed the money or had any reason to pay or not to pay. The question is why are they appearing as claimants instead of witnesses in a claim by someone who actually did suffer some financial loss caused by your alleged nonpayment.
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And the question is why isn’t such a person (creditor) present in the foreclosure? Where are they? Who are they? Do they exist? If they don’t exist, was the transaction with the homeowner actually a loan transaction or was it something else entirely that was disguised as a loan transaction? 
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So you START with the premise that all legal debts should be paid to the obligee — the person to whom the debt is owed. Everyone agrees with that. And you follow with the premise, under the U.S. Constitution, that only people who have been injured can seek redress in court. You get the judge to agree that everyone agrees that if someone fails to pay a mortgage debt to someone who owns it, they should be subject to foreclosure, forced sale of their home, no matter how long it has been in the family, and evicted if they try to stay anyway.
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You talk about it as though you are in favor of foreclosure because that is where every judge starts. You don’t talk about foreclosure as though it is a new scheme that doesn’t have any support in logic or law because foreclosure has existed for centuries. It must exist because if someone parts with their money to give you a loan, they must be able to force repayment if you are unable or unwilling to make repayment. But that does not mean that a witness to nonpayment can make a claim.
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And you must take the time to study and understand the true nature of what has been really been going on. Securitization is by definition the issuance of securities. While it can be a source of financing it is just as often a means to distribute risk. The reason why thinly capitalized companies like DiTech and Quicken Loans were given hundreds of millions of dollars to sell trillions of dollars of low interest loans was not because the investment banks had come up with a new formula to squeeze profit out of low interest payments.
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It was because the return of principal and interest payments was irrelevant to their plan. The “failure” of such repayment plans was a centerpoint of the plan and they bet on it, making more and more money as each “loan” “failed.” Their plan was to sell securities. And the more securities they sold the more money they made because unlike all other securitization plans, they were not selling securities from an independent legal entity (client) that was going into business and using the proceeds to conduct or grow its business.
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Instead they were selling securities for themselves, taking the money and using as little of it as possible to cover the scheme. The money used to create the illusion of loans was a cover for the real scheme.
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The money, if any, that was sent to closing agents to close a transaction that was inaccurately described as a loan transaction was not delivered by the banks with the intent of creating a conventional loan product subject to lending laws. That would have made the investment bank a lender and they would have been named as such on the note and mortgage.
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Quite the contrary. It was designed to evade lending laws in a scheme that had has its hallmark claims by the investment banks, who were running the show, that the scheme did not subject them to lending laws and was not a loan. 
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By designating a false flag “originator” who was contractually unrelated to the investment bank and who received fees and bonuses from acting as though it was a lender, the banks now claim that they are not regulated by lending laws.
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My position is take them at their word and stop fighting them.
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OK, you are right but the only reason you are not subject to lending laws is that you did not engage in lending. So the money that arrived at the closing table was disguised conditional payment in exchange for a the homeowner’s signature on documents that could be used to fill in data on a spreadsheet.
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It was that data (not the loans) that was sold dozens of times thus relieving the investment bank from any risk of loss. The money was a fee paid to homeowners who were lured into transactions that were fraudulently disguised as loans but were in fact part of a plan to steal money and homes.
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Foreclosure is sought because it represents still more revenue and because by not foreclosing the banks would be admitting this wasn’t a loan in the first place. The money that went to homeowners or which was paid on their behalf was not a loan — it was only part of payment of a fee to which the homeowner was entitled (under quantum meruit) but knew nothing about and never had any opportunity to engage in free market negotiation.
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The reason why (a) there is no creditor and the reason why (b) all the documents are fabricated and (c) all this testimony is pre-scripted for perjury is simply that it wasn’t a loan to begin with — and nobody now is carrying the loan as an asset receivable on their books. NOBODY! The loan does not and never did exist. And that is because the money received was not a loan, it was payment for signature and implied consent to use private data for resale.
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The most basic law of contract is that there must be, at the outset, a meeting of the minds. The homeowner went into the transaction believing the false assertions that the money was a loan — instead of consideration for use of his or her private financial information and his or her signature.
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The investment bank went into the transaction through a myriad of sham conduits posing as “lenders” for exorbitant fees. The investment banks were not lending money. They were paying money so they could issue and profit from the sale of securities in “securitization.” Without that there would have been transaction at all. Refer to the “Step Transaction Doctrine” and “Single Transaction Doctrine” for support in case decisions and statutes. You’ll find multiple references on this blog from the early days (2007–2008) of this blog.
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The investment banks say they are not liable as lenders for noncompliance with lending laws. OK. A good lawyer can make a powerful argument for estoppel — the investment banks cannot take one position — that it wasn’t a loan in terms of regulation of lenders   — and then that it is a loan so they can foreclose without a creditor.
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But to get the judge to even consider such an apparently ridiculous assertion you need to demonstrate, step by step, relentlessly, that the foreclosure team has nothing. That doesn’t happen in one pleading or one hearing. It ONLY happens if you know and consistently use and apply the rules and laws relating to court procedure, discovery and trial objections.
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PRACTICE NOTES:
This argument can be made directly where the transaction was originated by the investment banks. Don’t get lost in the “warehouse lender” thickets — they were just one of many steps in a the circuitous process by which investment banks gave money to homeowners.
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But where a real loan was actually made by a real lender and then acquired by investment banks through what they called “securitization” then the argument shifts to the idea that the debt was extinguished at acquisition. this is because when all was said and done there was no creditor who was holding the debt as an asset receivable on its books.
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The fundamental point here, which can be corroborated with any knowledgeable person in the world of finance, is that neither the delivery of money to homeowners nor the acquisition of the debt after a real loan was originated was related to securitization as it had ever been done in the past.
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Securitization is simply the process of dividing up an asset into shares and selling them. This was never done in connection with these transactions. Nobody ever received a share of any loan. Securitization in this context consisted solely of the issuance of securities by the securities brokerage firm (investment bank) posing as an underwriter for a “trust name” that was merely a fictitious name of the the underwriter itself. That is not securitization. The job of the litigator is to gently and relentlessly lead the judge to conclude that this might indeed be the case and thus deny the foreclosure.
====
Neil F Garfield, 73, is a Florida licensed attorney. He has received multiple academic and achievement awards in business and law. He is a former investment banker. securities analyst, and financial analyst.

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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. IN FACT, STATISTICS SHOW THAT MOST HOMEOWNERS FAIL TO PRESENT THEIR DEFENSE PROPERLY. EVEN THOSE THAT PRESENT THE DEFENSES PROPERLY LOSE, AT LEAST AT THE TRIAL COURT LEVEL, AT LEAST 1/3 OF THE TIME. IN ADDITION IT IS NOT A SHORT PROCESS IF YOU PREVAIL. 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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Interesting NY Decision on Acceleration: U.S. Bank N.A. v. Gordon, 176 A.D.3d 1006 (2d Dept. 2019)

 “failure to pay this delinquency, plus additional payments and fees that may become due, will result in the acceleration of your Mortgage Note. Once acceleration has occurred, a foreclosure action . . . may be initiated.”

the Notice of Default stated that “[t]o avoid the possibility of acceleration,” Defendants were required to make certain payments by a specific time, or ASC “will proceed to automatically accelerate your loan.” (Emphasis added).

see https://www.jdsupra.com/legalnews/ny-appellate-court-holds-default-letter-29981/

So it seems that in New York a notice of intention to accelerate or any notice that says that the supposed “lender” will accelerate is not the same as an actual acceleration. Actually that makes sense because any other interpretation would defy the intent of the notice of default. the notice of default is for the purpose of giving the borrower notice that unless they bring their payments up to date, the entire loan will become due.

The inherent logical and legal problem with this decision is that it is inconsistent with Florida (see Bartram case) and other states who made decisions as to implied “deceleration” for purposes of evading the effects of the statute of limitation. In fact, this very decision uses such “logic” to arrive at the conclusion that the “lender” is not barred because there was no acceleration. There was only an expression of an intent to do so. therefore any claims arising from acceleration could not arise.

In short the courts are speaking out multiple sides of their mouths.

On the one hand they say that deceleration which has never been claimed or noticed occurs upon the rendition of an order dismissing a defective foreclosure action and that the statute of limitations does not run on the balance where the “lender” has  given “notice” that it is intending to accelerate. The courts have thus “interpreted” a legal fiction into practical existence contrary to the rules of law. The acceleration is rendered void upon losing in court. There are various possible criticisms of such doctrine but the best one I think is “nuts.”

On another hand (or mouth) they are approving of “interpretation” of a notice of default declaring an intent to accelerate as actual being the acceleration for purposes of foreclosure. This is also crazy. If the notice of intention to accelerate was the actual acceleration then the notice would be fatally defective pursuant to paragraph 22 — which requires notice of default and an opportunity to cure it without paying the whole balance. So “intent to accelerate” cannot be the same as declaring acceleration since it would violate both law and contact. yet there it is in most courts where the “intent” is sufficient (according to most judges) to be an actual declaration of acceleration.

And still on another hand (or mouth) they are saying that acceleration does not occur where the lender declares only an intent to accelerate. This again is insane in the context of the foregoing “doctrines” imposed by the courts.

And of course the declaration of intent is contained in a “notice of default” that is a complete legal nullity, to wit: it is declared on behalf of U.S. Bank and a trust neither of which have any interest in the loan.

In short, the courts are willing to bend every rule, break any logical flow, and divert every rule in order to rule in favor of nonentities just like this case. U.S. Bank had no right, title or interest in the loan, debt, note or mortgage and neither suffered any financial loss for nor was it exposed to any default  declared or otherwise. And neither did any entity supposedly or presumably represented by U.S. Bank.

Note that acceleration can be accomplished through filing of a lawsuit where acceleration is declared. But in nonjudicial states, this is not possible if nonjudicial foreclosure is pursued.

Not So Fast! Statute of Limitations Bars Claims for Enforcement of Statutory Duties But Does Not Bar Other Action For Damages Based on That Duty.

Claims under state statutes or Federal statutes have different periods of limitation under which you can file suit.

BUT — if the statutory duty that was breached is part of another claim that is not barred by the statute of limitations then you can survive a motion to dismiss or even an affirmative defense of statute of limitations.

Sound crazy? Actually it isn’t.

I have already discussed claims for damages that are barred by the statute of limitations but he same statute does not bar the same pleading as an affirmative defense because that is NOT, for procedural purposes, a “claim.” Those are generally called Defenses for Recoupment which allow awards of damages for money and even court costs and attorney fees that might ordinarily be barred. Several lawyers have recognized this and some who have been successful have brought it to my attention and even appeared as a guest on the Neil Garfield Show.

Now for the past year, more decisions are coming out predicated on public policy. You cannot raise a claim for violation of HAMP, FDCPA or TILA after the period of limitations has expired but you can use the statutory violation as the basis of a claim under another right of action. So if the state, for example, has a law that allows a private right of action for damages for breach of a duty, that duty might come from a statute that has expired but is still in operation as evidence of the duty of fair dealing and against wrongful enrichment.

see https://www.lexology.com/library/detail.aspx?g=1f747ad6-1d9c-43f8-8c61-431f099cc58b

The bank informed the plaintiffs of the error, provided a check for $15,000, and after mediation, paid the plaintiffs another $25,000. The plaintiffs filed a class action against the bank, asserting claims for violation of the WCPA and unjust enrichment. The bank moved to dismiss the action, arguing, among other things, that the WCPA claim was an “impermissible attempt to enforce the federal Home Affordable Modification Program (HAMP), which creates no private right of action.” The court disagreed with the bank, determining that while the mortgage modification application was filed pursuant to HAMP, the plaintiffs “do not seek to enforce HAMP.” Instead, the plaintiffs argue that the wrongful denial of their application and failure to disclose the calculation error for three years “constitutes unfair or deceptive conduct in violation of the [WCPA].”

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