How Could This Not Be a Loan?

Posted on December 3, 2021 by Neil Garfield

if the investment bank paid the homeowner as an incentive payment rather than as a loan, then there is no debt any more than salary or wages can later be called a loan. The fact that the consumer/homeowner thought or even wished it were otherwise makes no diffeerence. If I pay you money and you think it is a loan but I paid you for services you rendered, the substance of the transction is “fee for services” — not a loan — and there is no legal or ethical or moral obligation to pay it back. 

I think the one idea that sticks in the throat of nearly everyone is the idea that no money was loaned. That idea seems impossible and to many skeptics, it sounds like a snake-oil salesman trying to peddle what people want to hear. People know that they did really buy their home, and the majority of these transactions are refinancing, which means that the old “lender” got paid off, right?

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First of all, let’s agree on at least one thing. Virtually all installment payment agreements are now subject to claims of “securitization.” This means that behind every transaction is an investment bank that is arranging payments, only where necessary, and who is receiving the proceeds of consumer payments plus all of the revenue and profits from the sale and training of unregulated securities.
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If there is one thing missing from most articles analyzing consumer debt, it is the failure to recognize that a handful of investment banks are the center of all of those transactions and they all have reciprocal agreements. Those agreements are mostly in writing but difficult to obtain, and sometimes tacit. You don’t need to look any further than any pooling and servicing agreement to see the world’s largest banks all participating in the same venture. In prior years, this fact alone would’ve been sufficient for antitrust action.

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So here is my effort at explaining it. There are several categories of transactions that occur with homeowners.
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  1.  The homeowner is buying a new home from a developer or contractor.
  2.  The homeowner is buying a home from the existing homeowner.
  3.  The homeowner is buying a home from a party or business entity that asserts ownership after foreclosure on the previous homeowner.
  4. The homeowner is refinancing the new home they purchased from a developer or contractor.
  5. The homeowner is refinancing a home they bought from a prior homeowner.
  6. The homeowner is refinancing a home they bought from a foreclosure buyer.
  7. The homeowner refinances by entering into a forbearance agreement.
  8. The homeowner refinances by entering into a modification agreement.
  9.  Securitization of data and attributes of homeowner’s promise to make scheduled payments — no relevant transaction because there was no sale of the underlying obligation, legal debt, note or mortgage (or deed of trust). Since law requires that sale for enforcement by successors, the foreclosure players fake the documents.
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Let’s define our terms.
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“Homeowner” means in this case someone who is looking to buy a home or who is looking to change their transaction.
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“Refinance” means that the homeowner is a party to some transaction and/or documentation that changes the terms of the homeowner’s prior promise to make scheduled payments.
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“Money source” means the investment bank that (a) borrowed money from a third party bank like Credit Suisse, (b) used the borrowed funds to make payments to or on behalf of the homeowner. (It pays back the loan to its lender (and co-underwriter of certificates) through sales of certificates to investors promising scheduled payments, without maturity, collateral, or a guarantee of payment.)
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1. PURCHASE OF NEW HOME FROM DEVELOPER: generally speaking, this is the only transaction that is in substance but it appears to be in form. Money is actually paid to the developer.
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  • The money trail for this transaction looks something like this: LENDER—>MONEY SOURCE/INVESTMENT BANK—>SUBSIDIARY OR CONTROLLED AFFILIATE OF MONEY SOURCE—>CLOSING AGENT—>DEVELOPER.
  • The paper trail (i.e. contracts) for this transaction looks something like this: MONEY SOURCE/INVESTMENT BANK—>AGGREGATOR (like Countrywide Home Loans)—>(a) Assignment and Assumption Agreement with Originators (like Quicken Loans) and (b) Indemnification Agreement with title insurers—>Mortgage Broker—>Mortgage salesman—>Homeowner execution of promise to pay and collateral for making scheduled payments to Originators.
  • Bottom Line: The homeowner is getting money, courtesy of an investment bank that is NOT intending to make a loan or be governed by any lending laws.
    • The homeowner is making a promise to pay the originator who did not lend any money or make any payments to or on behalf of the homeowner.
    • The only party identified as a lender is the originator who did not make a loan.
    • The only party that arranged for payment disclaims any role of being a lender.
    • The payment made on the homeowner’s behalf was an incentive payment designed to procure the signature of the homeowner on a note and mortgage (or deed of trust).
      • Legally since there was no lending intent by either the named “lender” or the Money Source, there is either no contract at all or no loan, since there was no meeting of the minds.
      • If the transaction is not rescinded the deal needs to be reformed with a court determining what incentive payment the homeowner should have received from the scheme to issue, sell and trade unregulated securities.
      • But if the homeowner tacitly or expressly asserts or agrees or admits it was a loan, then for all purposes in court, it will be treated as a loan not subject to reformation.
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2. PURCHASE OF NEW HOME FROM PRIOR HOMEOWNER: generally speaking most of these transactions do not result in the payment of money to any prior lender. But the excess due to the seller is paid in the same way that money is paid where the homeowner purchases a home from a developer.
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  • Most of such transactions are steered to originators and aggregators who represent the money source (investment bank) who was involved in the financial transaction with the prior homeowner.
  • Because the proceeds of the “new financing” or “purchase money mortgage” would be paid to the same investment bank, no money exchanges hands with respect to the “pay off” of the prior note and mortgage.
  • The confusing point for most lawyers and homeowners is that there is nothing illegal about a bank holding a prior mortgage lien. There is nothing illegal about the same bank doing business with the next owner. And there is nothing illegal about the bank not issuing a check to itself when the owners change.
    • But that is not what is happening. “The bank” does not exist. The money source (investment bank) is not carrying the homeowner’s promise to pay scheduled payments as an asset and therefore is not “the bank.”
    • For legal purposes, the test is simply whether or not the investment bank has suffered a loss as a result of the refusal or failure of the homeowner to make a scheduled payment.
    • Or, phrased differently, the question from the beginning is whether or not the investment bank has the source of money ever excepted any risk of loss arising from the value of a loan account receivable.
    • The answer to both questions is in the negative. In dozens of cases across the country, lawyers have been asked to identify the creditor and have admitted that they cannot do so.
    • The only logical conclusion is that the transaction was never intended to be a loan (with the exception of the homeowner who did intend to get a loan, but did not receive it).
    • The investment banks wanted the homeowner to believe they were getting a loan instead of an incentive payment to execute a promise to make scheduled payments. They did not want the homeowner to know that they were receiving an incentive payment. Disclosure of that fact is an absolute requirement under the law. If they had disclosed the true nature of the transaction, they would have been subject to bargaining and competition.
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3. PURCHASE OF NEW HOME FROM FORECLOSURE BUYER: generally speaking, relative to any current financing arrangement, no money exchanges hands on these deals because and substance, the foreclosure buyer generally is receiving some sort of protection or indemnification from a title company that has been to issue insurance on a transaction that cannot pass the test of marketability or clear title — mostly because of the above factors. The anecdotal evidence on thousands of cases reviewed by me strongly indicates that nearly every foreclosure buyer is in substance a placeholder or nominee for the investment bank. By flipping the paper title, the foreclosure buyer receives a “profit” that is in substance a fee for legitimizing the foreclosure. That profit or fee is funded by the investment bank.
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4. REFINANCING: generally speaking, all transactions that carry the label of “refinancing” are false transactions. Because securitization does not involve the purchase and sale of any underlying obligation, legal debt, note, or mortgage, each such transaction represents a new opportunity to create a new securitization infrastructure using the same transaction. Investment banks use every means of their disposal to encourage “refinancing” since it is the source of most of their new sales of certificates. The only money paid out is the excess, after fees, over the amount previously declared as “principal.” But this “principal” is not carried on the accounting ledger of any company or any person as an asset, nor is there any reserve for bad debt (simply because there is no risk of loss).
  • Forbearance is a form of “refinancing” because it accomplishes a number of things for the investment bank. First, obtain a signature from the homeowner that ratified or admits that the previous paperwork and financial transactions were all valid. Second, it essentially removes the placeholder originator from the paper trail. Third, it installs a new placeholder name and obtains consent from the homeowner. Fourth, it establishes a company claimed to be the servicer as the legitimate recipient of funds or proceeds from homeowner payments or the sale or foreclosure of the collateral (i.e., the home).
  • Modification is the same as forbearance: It introduces new parties under coercion. Homeowners sign these documents with total strangers mostly out of sheer panic. What they’re doing is waiving rights and creating tracks in the sand that are opposite to their financial interest and well-being.
Given all of that, many people ask me why I have consented or approved of a homeowner entering into a new agreement with players who are conducting an illegal scheme. The answer is simple and the investment bankers know the answer: they have the money to make a homeowner’s life miserable and they are not subjected to vigorous enforcement by regulators and law enforcement.
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The entire burden of resisting this massive scheme of “Financial weapons of mass destruction” Falls on each homeowner, one at a time. It takes considerable time, money, and resources to resist.
So when the opportunity comes to settle the matter on favorable terms that reduce the payment, interest rate, and principal, and the homeowner lacks the will or the resources to resist, the only choice left is to settle with the perpetrators who put them in a bad position and who are cheating each homeowner out of their rightful share of the securitizations scheme.
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Neil F Garfield, MBA, JD, 74, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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  • But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.
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Filed under: discovery, Discovery -Subpoena, evidence, Fabrication of documents, foreclosure defenses, foreclosure mill, investment banking, Investor, legal standing, Mortgage, originator, Pleading, Presumptions, prima facie case, quiet title, securities fraud, sham transactions, standing, Student Loans | 6 Comments »

From the Horse’s Mouth: WAMU Originated “Loans” Are not Assets of Chase or Even Any trust If the Sale was to a “Depositor”

Posted on July 7, 2020 by Neil Garfield

Many thanks to Bill Paatalo for bringing this to my attention.

This article brings to the forefront a central issue that Wall Street cannot escape unless we let them: in the context of securitization, the paper transfers to the “depositor” is not a sale even if it is treated as a sale by the “Seller.” That means that the homeowner transactions that were falsely labeled as loans were never securitized. In other words, the whole thing is a lie. A LivingLie, which is why I named named this blog as such.

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I would suggest that practitioners take note of this. As many judges have specifically declared in their finding of facts, the “sale” to the   “depositor” in a securitization scheme is a sale to a legal entity.

Take special note that the filings with the SEC admit that the issue of whether and when any sale has actually taken place is subject to “argument.” That is a peculiar statement when you’re dealing with paperwork that “memorializes” the sale of trillions of dollars worth of transactions.

This means that when feeders like Long Beach Mortgage originated homeowner transactions on behalf of WAMU, the most likely cash flow (i.e. real transactions) included a fee paid to Long Beach to act as Lender (so everyone else could avoid lender liability for violations of lending laws). It also means that WAMU was only the servicer. And it means that the homeowner transacted was actually funded by a third party (investment bank) — and what THAT means is that no actual sale ever took place of any debt, note or mortgage. 

And THAT brings to the central issue — on what basis can a non-creditor appoint a designee or nominee to collect on a debt that they don’t own?

And without a sale to the trustee of the REMIC “trust” it is the Depositor who owns the homeowner obligation. That means under black letter law that neither the trustee nor the trust can be named as claimant or beneficiary or plaintiff in a foreclosure proceeding because they are not a creditor.

see WaMu’s securitized mortgages were “legally isolated” and out of the reach of the FDIC’s Receivership. Hence, “Nemo dat quod non habet” (One cannot give what one does not have).

“For transactions in which WMB is a mortgage loan seller, investors should consider the following:
WMB sells mortgage loans to the depositor. WMB is a federal savings association, and its deposits are insured by the FDIC. If certain events occur relating to WMB’s financial condition or the propriety of its actions, the FDIC may be appointed as conservator or receiver for WMB.

WMB will treat its transfer of mortgage loans to the depositor as a sale. Arguments may be made, however, that the transfer of the mortgage loans constitutes only the grant of a security interest under applicable law.
Nevertheless, the FDIC has issued a regulation surrendering certain rights to reclaim, recover, or recharacterize a financial institution’s transfer of financial assets such as the mortgage loans if:
• the transfer involved a securitization of the financial assets and meets specified conditions for treatment as a sale under relevant accounting principles;
• the financial institution received adequate consideration for the transfer;
• the parties intended that the transfer constitute a sale for accounting purposes; and
• the financial assets were not transferred fraudulently, in contemplation of the financial institution’s insolvency, or with the intent to hinder, delay, or defraud the financial institution or its creditors.
WMB’s transfer of the mortgage loans will be intended to satisfy all of these conditions.
If a condition required under the FDIC’s regulation were found not to have been met, however, the FDIC could seek to reclaim, recover, or recharacterize WMB’s transfer of the related mortgage loans. The FDIC may not be subject to an express time limit in deciding whether to take these actions, and a delay by the FDIC in making a decision could result in delays or reductions in distributions on the certificates. If the FDIC were successful in any of these actions, moreover, holders of the certificates may not be entitled under applicable law to the full amount of their damages.
Even if the conditions set forth in the regulation were satisfied and the FDIC did not reclaim, recover, or recharacterize WMB’s transfer of the related mortgage loans, distributions to holders of the certificates could be delayed or reduced if WMB entered conservatorship or receivership.
The FDIC may be able to obtain a stay of any action by the trust, the trustee, the servicer, or any holder of certificates to enforce any obligations of WMB under any transaction document or to collect any amount owing by WMB under any transaction document. The FDIC also may require that its claims process be followed before payments
For transactions in which WMMSC is a mortgage loan seller, investors should consider the following:
WMMSC sells mortgage loans to the depositor. WMMSC will represent and warrant in the mortgage loan sale agreement that the transfer of the mortgage loans to the depositor is an absolute sale, so that the depositor is the sole owner of each mortgage loan. WMMSC is eligible to be the debtor in a bankruptcy case. If WMMSC were to become a debtor in a bankruptcy case, and a party in interest (including WMMSC itself) were to take the position that the transfer of the mortgage loans to the depositor is not a sale, but rather should be recharacterized as the grant of a security interest in the mortgage loans to secure a borrowing of WMMSC, delays in distributions on the certificates could result. If a court were to adopt such a position, then delays or reductions in distributions on the certificates could result.
  WMMSC and the depositor have taken steps to minimize the risk that in the event WMMSC were to become the debtor in a bankruptcy case, a court would order that the assets and liabilities of the depositor be substantively consolidated with those of WMMSC. The depositor is a separate special purpose corporation.
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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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Filed under: bankruptcy, boarding process, CORRUPTION, evidence, Fabrication of documents, FDIC, foreclosure, foreclosure defenses, forensic investigation, investment banking, jurisdiction, legal standing, Mortgage, Presumptions, prima facie case, quiet title, Servicer, sham transactions | 1 Comment »

How to Use the Real Deal On Securitization to Homeowner’s Advantage

Posted on June 15, 2020 by Neil Garfield

Like citizenship in this country litigation is not easy. We keep banging our heads against the same wall expecting a different result. We need a strategy that directly addresses the inescapable realities of every homeowner transaction and every securitization cycle.

My substantive analysis of the transaction is that the homeowner was drafted into a securitization scheme which in my opinion clearly triggers quasi contract and quantum meruit — the only possibility for inquiring into the adequacy of consideration. Lawyers and litigants have shied away from this because of its complexity and because they don’t know how to approach it.
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In simple terms the homeowner transaction was a “”Qualified Financial Contract” (QFC), part of which contained some apparent attributes of a loan, but which went much further and diverged extensively from a “loan” as the term is currently used in custom and practice in the financial industry and society in general.
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The QFC is not some invented term for this article. it is defined in all securitization documents. Investment banks knew they were not creating a loan. The job of litigants and their attorneys is to point out and argue that the documents submitted as a foundation for their claim of legal standing contains language that opens the door to quasi contract and quantum meruit. 
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In logistical terms, the homeowner delivered the only service the investment bank was seeking, to wit: issuance of the note and mortgage. Neither the investment bank nor the originator designee of the investment bank was at all interested in making a loan, collecting revenue from repayment nor assuming any meaningful risk of loss.
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Although the homeowner entered the transaction desiring a loan he/she didn’t receive a loan. If there is no legally responsible lender or creditor at the conclusion of that transaction, it isn’t a loan.
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And since too many bona fide third party transactions have occurred to rescind or unwind the transaction the only possibility remaining is to have a court reframe the agreement to include the basis upon which the investment bank entered into the transaction — i.e., the creation, issuance, selling, trading and hedging of unregulated securities.
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We know the investment bank had no intention of becoming a lender and that there was no intention to make investors lenders.
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And we know that the investment banks funded the origination or acquisition of the loan through originators and aggregators.
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Further we know that investors paid value for the certificates which excluded any right, title or interest in any debt, note or mortgage.
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The result, obviously intended, is that while parties were paying value, none of them ever received a conveyance of ownership of the debt, note or mortgage.
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And we can easily see that anyone who received such a conveyance (a) did not pay value and (b) was not acting as an authorized agent or representative of anyone who paid value in exchange for a conveyance of an ownership interest in the subject debt, note or mortgage.
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It was partly a scheme for avoidance or evasion of lending and securities laws.
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The reason for this is blatantly stated in all of the promotional material for sale of certificates, to wit: no liability for violation of lending or servicing laws using “bankruptcy remote” vehicles  for origination and acquisition of homeowner obligations.
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And scratch the surface and you discover that the only thing that makes the transactions bankruptcy remote is that the underlying obligation, note and mortgage are not included in the schedules of bankruptcy because they were never owned by the originator or aggregator.
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The problem for the last 20 years has been that nobody has been asking the obvious question: “if they don’t own the loan, then who does?” Or at least nobody has followed up on that question in which they truly persisted in aground war to get the answer.
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So any such conveyance was either a legal nullity (mortgage assignment) or did not carry the right to enforce (note). If the conveyance didn’t include the obligation there are very specific rules that apply.
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Authority to enforce the note can only come from one who is entitled to enforce. And the premier person who has the right to enforce is owner of the underlying debt that the note is supposed to memorialize. Under the laws of all jurisdictions nobody gets to own the obligation without paying value.
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This seems to be challenging not only for the courts but for defense lawyers. It is a very simple logical progression. In the end enforcement of the note is intended to pay the debt. If it doesn’t pay the debt the maker of the note is subject to multiple liabilities for the same transaction. And that is what happened. Since the originator did not substantively fund the homeowner transaction the issuing of the note and mortgage in favor of the originator was a legal nullity. The issuance of the note created a new liability that was not merged with the underlying obligation to repay the money, if any, that was received or paid on behalf of the homeowner.
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So the reason I mention all of this is that I have somewhat reluctantly but persistently arrived at the conclusion that the homeowner transaction was not a loan and yet the obligation to make payment survives even in quasi contract or quantum meruit.
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This is an unavoidable conclusion because we know that where money was funded to the homeowner or on his/her behalf and where the homeowner issued a promise to pay money, the obligation to pay arises and can be secured by a lien (mortgage or deed of trust) which in fact is enforceable.
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But note that since there is no lender or creditor at the conclusion of the securitization cycle, the intent of the homeowner is thwarted — i.e., he/she does not have a loan agreement. It is something else. And that is where quasi contract and  quantum meruit come into play.
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The homeowner could have bargained away reasonable compensation or consideration for his/her role in initiating the only documents that made securitization claims possible — i.e., the note and mortgage.
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Our legal system is not designed to correct stupid mistakes in bargaining or negotiation in transactions or agreements.
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Our system is designed to enforce the intent of the parties. So we can’t get away from the intent to create an obligation and the intent to have that obligation enforceable and memorialized by a note and mortgage. In fact, I propose we should embrace it.
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The reason is that the intent to create the enforceable homeowner obligation was not the only intent operating. Since the securitizations cheme — and the homeowner’s vital role in it — was not disclosed (actually actively concealed), the homeowner did not, could not and never did bargain away rights to compensation or consideration for his role and risks in this dangerous risky transaction.
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Thus we enter the realm of quasi contract and quantum meruit. 
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So now the question is how much consideration  did the homeowner actually receive for issuance of the note and mortgage? Since it wasn’t a loan, even though that was what was intended by the homeowner, the receipt of money must be categorized as payment of consideration. And that is a lot of consideration by any standard.
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But now the issuance of the note and mortgage becomes a service rather than the result of an underlying obligation to repay.
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So the consideration of the receipt of benefit from the funding of the homeowner transaction is entirely offset by a promise to pay more than the consideration received in the form of money paid to the homeowner. That might still result in a court finding some consideration, since the money on the front end might not be found by a court to exactly equal the money promised on the back end.
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On the other hand there is good reason to find that the consideration for issuance of the documents required to start securitization claims, securities, selling trading and hedging was entirely negated by the concurrent promise to pay more than the money received. But assuming there was a finding of consideration, was it enough?
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In a court of equity wherein rescission is no longer an option the court must determine what a reasonable homeowner would have bargained for or received through the process of free market forces if disclosure had actually been made regarding the securitizations scheme and the vast profits and revenue generated under the scheme.
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The court would hear testimony from a variety of experts and reach a conclusion as to whether the homeowner had received enough consideration or if the homeowner should have received more as per the quasi contract and not just what was presented as a loan agreement.
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The range of possibilities is nearly infinite. From zero to a majority of the pot because the investment bank secretly tricked the homeowner into a dangerous transaction, the risks of which were unknown to the homeowner. Using the shadow banking marketplace (i.e., where all derivatives are traded for nominal value) as the external reference point for heuristic projection, it may be fairly assumed that the average revenue generated from each securitization cycle was $12 for each $1 transacted with homeowners. Additional securities analysis reveals that the figure could be much higher.
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In a free marketplace where there was no asymmetry of information the fair question could be posed as follows: from the investment bank’s perspective they would be saying that they are going to make $12 on each $1 during the securitization cycle, perhaps more.
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The homeowner and investor sitting at the same fictional but still legal table would inevitably concede that for inventing and managing such an ingenious scheme the investment bank might be entitled to the lion’s share of the profit.
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The investors would say their role as investors is critical to the existence and success of the securitization cycle. And since capital is valued more highly than labor they would claim a greater share than that awarded to homeowners. Homeowners would make the same argument as investors — without them there is no securitization and there are no revenues and there are no transactions claimed as “loans.”
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So looking at the customs and practices of the financial industry the investors would probably initially claim 40% as angels and the homeowners could justify a claim of around half that amount for their indispensable role.
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Or one could look at the money actually spent (commissions, bonuses etc) on getting homeowners to execute the required note and mortgage while concealing the truth about the transaction as a measure of what the homeowners should get. Or a license or royalty arrangement might be adopted.
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All of them in my opinion average around 15%-20% of the total revenue generated by the scheme. this would leave the investment bank with 40% or more of the securitization cycle revenue which is around 1000% of normal revenues for underwriting and sale of debt securities.
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So the court would offset the obligation with whatever it decided was reasonable consideration for the homeowner. It would either order payment to the homeowner of any excess consideration due or order the homeowner to pay the balance of the obligation after offset for the consideration due. And if the homeowner still owed money both the note and mortgage would be enforceable.
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But here is the rub. None of this is possible without creating a contract by decree in which it is possible to designate a party who is not a creditor to act as a creditor — in a transaction to which the homeowner agrees that for all purposes the designee will be a creditor. And that creditor is subject to lending and servicing laws. This is essential because under current law only the owner of the debt can enforce the mortgage and only someone representing the owner of the debt can enforce the note unless they are a holder of the note in due course — which means they purchased it for value in good faith and without knowledge of the  maker’s defenses. 
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So it becomes necessary to plead for this attribute to be made part of the newly minted agreement because without it, you don’t have an enforceable agreement  Without an enforceable agreement you’re left pleading for damages under RICO, wrongful foreclosure, etc. And while the note and mortgage might not be subject to enforcement, they still exist. No lender or buyer will complete a transaction with that hanging over the deal.
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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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*
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Filed under: appeals, bankruptcy, boarding process, burden of persuasion, burden of pleading, BURDEN OF PROOF, common law rescission, CORRUPTION, discovery, Discovery -Subpoena, Eviction, evidence, expert witness, Fabrication of documents, foreclosure, foreclosure defenses, forensic investigation, investment banking, Investor, jurisdiction, legal standing, Mortgage, originator, Pleading, Presumptions, prima facie case, quiet title, securities fraud, sham transactions, standing, STATUTES | 5 Comments »

BEWARE: MORATORIUM ON FORECLOSURES MAY NOT STOP SALES OF THE PROPERTY

Posted on May 22, 2020 by Neil Garfield

In a nutshell, moratoriums will do very little for homeowners or the courts. First unless a specific moratorium order states that it bars sales and evictions it is only the foreclosure action that is temporarily suspended. At some point in the near future, homelessness will spike because of a new tidal wave of foreclosures.

Second a moratorium does nothing to forgive payments. So when the moratorium expires, all the payments are due unless you ask for and receive some sort of forbearance agreement from servicers (who probably don’t have any authority despite all appearances to the contrary).

Third, don’t rely upon your own interpretation of what you read on the Internet. There is no substitute of a three year legal education and law degree and there is no substitute for decades of experience in and out of the courtroom.

Fourth, DO use this time to prepare for a confrontation with the banks and companies claiming to be servicers. Do not admit to anything —even the existence of your obligation even if that makes you feel uncomfortable.

Fifth start the administrative process by sending out a Qualified Written Request under RESPA and a Debt validation Letter under FDCPA. But stop thinking you know how to do that. Overbroad generalizations and conclusions are a perfect excuse not to answer you or evade your questions.

*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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Filed under: CORRUPTION, discovery, evidence, expert witness, Fabrication of documents, foreclosure, foreclosure mill, forensic investigation, legal standing, Presumptions, prima facie case, quiet title, Servicer, sham transactions, standing | Tagged: , , , , , , | 1 Comment »

Rescission and Burden of Proof

Posted on September 25, 2019 by Neil Garfield

There are winners and losers in every courtroom. When dealing with TILA Rescission under 15 USC §1635 you must go the extra mile in not merely showing the court why you should win, but also revealing that the opposition is not actually losing anything. The same logic applies to every foreclosure where securitization is either obvious or lurking in the background.

The bottom line is that no payment of value has ever been paid or retained as a financial interest in the debt by the named claimant nor anyone in privity with the named claimant. Once you can show the court the possibility or probability that the foreclosure is simply a ruse to generate revenue then it is easier for the court to side with you. Once you show the court that your opposition refuses to disclose simple basic questions about ownership of the debt then you have the upper hand. Use it or lose it.

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GET FREE HELP: Just click here and submit  the confidential, free, no obligation, private REGISTRATION FORM. The key to victory lies in understanding your own case.
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========================

Another analysis just completed for a client: The situation is that the homeowner sent a notice of rescission under the TILA REscission Statute 15 U.S.C. §1635 within days of having “consummated” the loan agreement. By statute that notice of rescission canceled the loan agreement and substituted in place of the loan agreement a statutory scheme for repayment of the debt which is NOT void. The notice of rescission only voids the written note and mortgage, it does not void the debt. The free house argument is pure myth.

The client goes on to ask how we can prove when the transactions occurred and who were the parties to those transactions and when they occurred. The answer is that you will never prove that. But you can raise an inference that the claimant is not the owner of the debt who has paid and retains value in the debt such that a successful foreclosure will not be used for restitution of an unpaid debt.

By undermining the presumptions arising from possession of facially valid and recorded documents you eliminate the ability of your opposition to use legal presumptions and thus require them to prove their case without those presumptions. The simple truth is that generally speaking they can never prove a case without legal presumptions. Once the presumptions are gone there is no case.

Here is my response:

It sounds like you are on solid ground. But as you probably know trial judges and even appellate judges and justices bend over backwards to either ignore or rule against the notice of rescission and its effect. For a long time, the bench has rebelled against the Truth in Lending Act generally. They rebelled against TILA rescission viscerally. Despite the unanimous SCOTUS decision in Jesinoski both the trial and lower appellate courts are unanimous in opposition to following the dictates of the statute and following the rule of law enunciated by SCOTUS.

You must be extremely aggressive and confrontative in standing your ground.
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As for the “free house”  argument the answer is simple. There is no free house. unless you are seeking to quiet title, which I think is an unproductive strategy if you not on solid ground with TILA Rescission. You are only seeking to eliminate the current people from attempting to enforce the mortgage, collect on the note or enforce the note. The last point might be your weakest point (without rescission). Enforcement of the note under Article 3 of The Uniform Commercial Code is much more liberal the enforcement of the security instrument under Article 9.
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It is actually possible that they could get a judgement on the note for monetary damages but not a judgment on the mortgage (without rescission in play). They can only get a judgment on the mortgage if the claimant has paid value for the debt. of course all of this should be irrelevant in view of the rescission which completely nullifies the note and mortgage.
Education of the court is extremely important. There is no free house in rescission. The obligation to repay remains the same. That obligation is not secured by the mortgage which has been rendered void nor is it payable pursuant to the terms of the promissory note which was also rendered void by the rescission. the obligation under contract (loan agreement)is simply replaced buy a statutory obligation to repay the debt.
They had ample opportunity to comply with the statute and get repaid. They didn’t. That is no fault of the homeowner.
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If they want repayment of the debt they might be able to still get it. If they produce a claimant who has paid value for the debt and had no notice of the rescission and who regarded your current claimants as unlawful intervenors, the same as you, then it is possible but the court might allow the actual owner of the debt to comply with the statute and seek repayment of the debt.
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At least that is what you will argue. You probably know that no such person exists. The ownership of the debt has been split from the party who paid value for it. So they probably don’t have anyone who qualifies.
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As for your last question about discovering the actual dates on which the debt was purchased pursuant to Article 9 § 203 of the Uniform Commercial Code, as a condition precedent to enforcement of the security instrument (mortgage or deed of trust), the answer is that neither the debt nor the note were ever purchased for value. The whole point is that they’re saying that these transactions occurred when in fact they did not.
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The only transaction that actually took place in which money exchanged hands is the one in which the certificates were sold to the investors. It might be successfully argued that the Investment Bank had paid the value for the debt so that is another possibility. If that argument succeeds then for a brief moment in time the Investment Bank was both the owner of the debt and the party who had paid value for it. But then it subsequently sold all attributes of the debt to the investors. the investors did not acquire any right title or interest directly in the subject debt, note or mortgage the only correct legal analysis would be that the Investment Bank retained bare naked title to the debt but had divested itself of any Financial interest in the debt. That divestiture generally occurred within 30 days from the date of funding the origination or acquisition of the loan.

*

So if you are looking for the dates of transactions in which money exchanged hands in exchange for ownership of the note you are not going to find them. but strategically you want to engage in exactly that investigation as you have indicated. there’s no need to hire a private investigator who will never have access to the money Trail starting with the investors in the Investment Bank. So your investigation would be limited to aggressive discovery. Your goal in discovery is to reveal the fact that they refuse to answer basic questions about the identity of the party who currently owns the debt by reason of having paid for it as required by article 9 section 203 of the Uniform Commercial Code as adopted by state statute.

*
This requires properly worded Discovery demands and aggressive efforts to compel Discovery, followed by motions for sanctions and probably a motion in limine.
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Since you have a notice of rescission within the 3-year time period, what you are actually revealing is that your opposition has no legal standing. Their claims to have legal standing are entirely dependent upon the loan agreement which has been cancelled by your notice of rescission. Unless they can now also state that they are the owners of the debt by reason of having paid for it, they are not a creditor or a lender. therefore they have no legal standing to challenge legal sufficiency of the notice of rescission nor any standing to seek collection on the debt. And they certainly have no legal standing to enforce the note and mortgage which have been rendered void according to 15 USC 1635.
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Their problem now is that their only claim now arises from the TILA rescission statute — and all such claims are barred by the statute of limitations on claims arising from the Truth in Lending Act. That time has long since expired.

*

It appears that no judge is going to like this argument even if it is completely logical and valid according to all generally accepted standards for legal analysis.

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So you’re going to have to address the elephant in the living room. The fact remains that if you are successful, as you should be, you will end up with a windfall gain. The judge knows that and denying it will only undermine your credibility. The Counterpoint is that if your opposition does not own the debt by virtue of having paid for it pursuant to the requirements of statute then their attempt at foreclosure is really an attempt to generate Revenue. If the Foreclosure is not going to provide money for restitution of an unpaid debt it can’t be anything else other than Revenue.
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In order to drill that point home you are going to need to argue, contrary to the judge’s bias, that not only is the current claimant not the owner of the debt by reason of having paid for it, but that the current claimant is not an authorized representative of any party who paid for the debt by reason of having paid for it and that the proceeds of foreclosure, if allowed, will never be used to pay down the debt. Again the only way you’re going to accomplish this is through very aggressive Discovery and motions.
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Don’t attempt to prove the dates of transactions, the data for which is within the sole care custody and control of your opposition, and can be easily manipulated, if you only focus only on the paperwork.
*
Don’t accept that burden of proof. The only way your opposition has gotten this far is because of legal presumptions arising from that claimed possession of the original note. you need to research those legal presumptions. Generally speaking the legal presumption of fact must include the conclusion that the claimant is the owner of the debt by reason of having paid for it. Possession of the note is considered the same as title to the debt, The presumption arises therefore that possession of the note is ownership of the debt and the further presumption is that ownership of the debt is not likely to have been transferred without payment of value.

Legal presumptions are subject to rebuttal. the way to rebut the presumption is not by proving a particular fact but raising an inference that destroys the presumption. And the way to do that is by asking questions about payment to value for the debt (not just a note on mortgage) and pointing to the refusal of your opposition to give you an answer and to produce documents corroborating their answer.

After the appropriate motions, you will be able to legally require an inference that they are not the owner of the debt by reason of having paid for it and that they don’t represent anyone who does own the debt by reason of having paid for it. Once the presumption is rebutted, the burden of proof falls back onto your opposition. and because they violated the rules of discovery, your motion should demand that they be prohibited from introducing evidence to the contrary of your inference that they don’t own the debt by reason of having paid for it and they don’t represent anyone who owns the debt and who paid for it.

Filed under: burden of persuasion, burden of pleading, BURDEN OF PROOF, discovery, Discovery -Subpoena, evidence, expert witness, foreclosure, forensic investigation, investment banking, Investor, jurisdiction, legal standing, Motions, prima facie case, quiet title, sham transactions, TILA, TILA rescission, Title, trial strategy | 9 Comments »

How to Distinguish Between Ownership of the Debt, Ownership of the Note and Ownership of the Mortgage (or Deed of Trust)

Posted on August 16, 2019 by Neil Garfield

Amongst the lay people who are researching issues regarding who actually can enforce a mortgage, there is confusion arising from specific terms of art used by lawyers in distinguishing between a debt, a note and a mortgage. This article is intended to clarify the subject for lawyers and pro litigants. The devil is in the details.

Bottom Line: In most cases foreclosures are allowed because of the presumption that the actual original note has been physically delivered to the current claimant from one who owned the debt because they both had paid money for it. In most cases merely denying that fact is insufficient to prevent the foreclosure because the court is erroneously presuming that even if the foreclosure is deficient the proceeds of sale will still go to pay the debt.

In most cases those presumptions are untrue but must be rebutted. And the way to rebut those presumptions is to formulate discovery that asks who paid for the debt, when and who were the parties to the transaction?

The  lawyers from the foreclosure mills will fight tooth and nail to prevent an order from the court directing them to answer the simple question of who actually owns the debt by reason of having paid value for it and thus who will receive the foreclosure sale proceeds as payment for the debt. The answer is almost always the same — the foreclosure mill is unable to identify such a party thus conceding the lack of subject matter jurisdiction and standing to bring the foreclosure action.

Eventually some party will be identified by changes in the law as being the legal owner of the debt. thus cleaning up the jurisdictional issue caused by utilizing parties who have neither suffered any financial injury nor are threatened with any such financial injury. But for now, the banks are stuck with the mess they created.

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GET FREE HELP: Just click here and submit  the confidential, free, no obligation, private REGISTRATION FORM. The key to victory lies in understanding your own case.
Let us help you plan for trial and draft your foreclosure defense strategy, discovery requests and defense narrative: 954-451-1230. Ask for a Consult or check us out on www.lendinglies.com. Order a PDR BASIC to have us review and comment on your notice of TILA Rescission or similar document.
I provide advice and consultation to many people and lawyers so they can spot the key required elements of a scam — in and out of court. If you have a deal you want skimmed for red flags order the Consult and fill out the REGISTRATION FORM.
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Get a Consult and TERA (Title & Encumbrances Analysis and & Report) 954-451-1230. The TERA replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
========================

Transfer of debt is by payment for the debt. Payment means you have a legal and equitable right to claim the debt as your own. Payor is the new owner of the debt and the Payee is the prior owner of the debt. There are no exceptions.

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The note is evidence of the debt. It is not the debt.
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Payment of money to a borrower creates a debt or liability regardless of whether or not any document is signed.
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Signing a document promising to pay creates a liability regardless of whether or not there was ny payment of money. In fact, if someone buys the note for value they become a holder in due course and the maker is liable even if they never received any money, value or consideration.
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Enforcement of the debt alone is governed by statutory and common law.
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Enforcement of notes and enforcement of the security instrument (mortgage or deed of trust) is controlled strictly by the adoption of the Uniform Commercial Code (UCC).
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Article 3 UCC governs the negotiation and enforcement of paper instruments containing an unconditional promise to pay a certain sum on a certain date.
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Article 9 governs the transfer and enforcement of security agreements (mortgages and deeds of trust).
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Whereas Article 3 does not require the holder of the note to be the owner of the debt for purposes of enforcement of the note, Article 9 requires the holder of the mortgage to be the owner of the debt as a condition precedent to enforcement of the mortgage. No exceptions.
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Ordinarily the execution of the note causes the debt to be merged with the obligations under the terms of the note. But this is only true if the owner of the debt and payee under the note are the same party. If not, then the execution of the note creates two distinct liabilities — one for payment of the debt and one for payment under the terms of the “contract” (i.e., the note).
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Before securitization it was customary that the owner of the debt had paid money to the borrower as a loan, and the execution of the note formalized the scheme for repayment. Hence under the merger doctrine the borrower who accepted the loan and the maker of the note were the same party and the Lender of the money to the borrower was also the payee named in the note.
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Now this is not always the case and appears to be not the case in most loans, which is why the banks have resorted to fabricated backdated forged and robosigned documents. The Lender in many if not most loan originations was not the party named as payee on the note. And the party named as payee on the note had no authority to represent the interests of the lender. Where this is true, merger cannot apply. And where this is true, enforcement of the note is NOT enforcement of the debt. Rather it is enforcement of a liability created entirely by contract.
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Foreclosure of a mortgage must be for payment of the debt, not just the liability on the note. All states have case law that says that transfer of mortgage without the debt are a nullity. This executing and receiving an assignment of mortgage and even recording it is a legal nullity unless the recipient paid money for the debt and the transferor was conveying ownership of the debt because the transferor had paid money for the debt. If those conditions are not met the executed and recorded assignment of mortgage is a legal nullity and the title record must be viewed by the court as lacking an assignment of mortgage.
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The judiciary has not caught up with these discrepancies in most instances. Hence a judge will ordinarily presume that the delivery and endorsement of the note and the assignment of the mortgage was equivalent to the transfer of title to the debt, with payment being presumed for the debt. So while the law requires ownership of the debt by reason having paid for it, the courts presume that the debt was transferred along with the paper, subject to rebuttal by the maker and borrower.
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The rubber meets the road when in discovery and defenses the borrower raises the issue of who paid for the debt and when. In the current world of securitization the answer will be the same: the banks won’t tell you and they won’t admit that the party named as claimant in the foreclosure never paid for the debt, despite appearances to the contrary. 

Filed under: burden of persuasion, burden of pleading, BURDEN OF PROOF, discovery, Discovery -Subpoena, evidence, Fabrication of documents, foreclosure, foreclosure defenses, foreclosure mill, forensic investigation, jurisdiction, legal standing, Pleading, prima facie case, quiet title, sham transactions, standing | 45 Comments »

Finally a Judge Asks the right Questions about TILA Rescission and Invites Briefs

Posted on August 5, 2019 by Neil Garfield

The time may now be coming where the court systems and Federal and State legislatures must come to terms with two inescapable legal facts:

(1) That borrowers who sent TILA rescission notices — and particularly those who sent them within 3 years of consummation of the mortgage — still own the land that was deemed “lost” in foreclosure.

(2) That such borrowers possess valid claims to recover title. possession and money damages. 

It was bound to happen and now it has. In one case, a judge is asking the following questions and inviting briefs on the following subjects:

  1. What is the effect of the failure to return consideration upon an attempt to exercise the right of TILA Rescission?  
  2. What is the effect on rescission if the borrower continues to pay? 
  3. Does TILA pertain to refinancing?

See HOW TO FRAME TILA RESCISSION IN YOUR PLEADINGS

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

GET FREE HELP: Just click here and submit  the confidential, free, no obligation, private REGISTRATION FORM. The key to victory lies in understanding your own case.
Let us help you plan for trial and draft your foreclosure defense strategy, discovery requests and defense narrative: 954-451-1230. Ask for a Consult or check us out on www.lendinglies.com. Order a PDR BASIC to have us review and comment on your notice of TILA Rescission or similar document.
I provide advice and consultation to many people and lawyers so they can spot the key required elements of a scam — in and out of court. If you have a deal you want skimmed for red flags order the Consult and fill out the REGISTRATION FORM.
PLEASE FILL OUT AND SUBMIT OUR FREE REGISTRATION FORM 
Get a Consult and TERA (Title & Encumbrances Analysis and & Report) 954-451-1230. The TERA replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
========================
The Tila Rescission Statute 15 USC §1635 requires, as a condition precedent to demanding payment of the borrower’s debt, that the parties who received money from the borrower arising out of the loan agreement return all such money to the borrower first before anyone can make a claim for repayment. This is why bank lawyers have long advised their arrogant bank clients that failure to follow the rules set forth in the TILA Rescission statute could not only result in loss of enforcement of the mortgage which is automatic, but also loss of the right to enforce the debt.
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The investment houses, who were the real parties in interest behind the origination or acquisition of residential loans, have long been bullying their way through the TILA Rescission statute since it undermines the value of the derivative infrastructure built and sold over every loan. Thus far they have succeeded in getting virtually all courts. except the Supreme Court of the United States, to go along with the bank narrative regarding 15 USC §1635. In plain terms they got what they wanted: judges ignored TILA rescission and entered orders as though it didn’t exist. But it did exist by operation of law and the US SUpreme Court said so.
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Failure to return consideration bars collection of the debt. And there are two other things that the “lenders” are required to do as conditions precedent (return cancelled original note, which we all know they don’t have, and file a satisfaction and release of the mortgage in the county records so that the world will know that rescission has occurred. This is the replacement for cancellation of the loan agreement. The new “agreement” is set forth by the statute.
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The judge doesn’t ask “effect on what?” The mortgage in all events is void, by operation of law. Neither the borrower nor the  creditor can effectively take any out of court action that changes that.
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There is no unilateral or bilateral action that can be taken by either or both parties to change something that is effective “by operation of law.” The only exception MIGHT be (and probably WILL be) that rescissions sent outside the 3 year period of expiration could conceivably be ignored, but if they are recorded in county records only a party with legal standing could have the rescission notice removed from the chain of title with a court order.
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And the problem for the banks is that they have no party who could be defined as a creditor — a party who had paid value for the debt and owns the debt, to wit: a party to whom the debt is currently owed. Another way of saying it, if you were listening to to the forensic auditor seminar last Friday, is that only a party who was carrying the borrower’s debt as an asset on its balance sheet as a loan receivable could claim the status of owner of the debt i.e., creditor.
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The genius of the way securitization has been practiced with respect to residential loans, is that there is nobody who takes a loss from nonpayment of any debt. Nobody is entitled to actually receives the borrower’s payments or the proceeds from a foreclosure or other sale. The money that is received therefore, is revenue upon which they pay no tax because they report it as repayment of debt rather than income. This explains why you can’t get a straight answer on “who owns my debt.” The answer is nobody. But that answer is counter intuitive which is another way of saying nobody wants to actually believe that.
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The issue is whether the borrower’s should forfeit their homes on a scheme that was based upon receipt of revenue rather than repayment of debt?
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TILA Rescission highlights this problem because it cuts down the veil or curtain behind which the banks hide. There is no more loan agreement and there is no more note or mortgage from which all sorts of legal presumptions can arise. While I would have thought this day would come sooner we finally have our first judge asking the right questions. Thus the hard “talk” begins.
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  • What is worrisome is the Judge’s use of the word “attempt.” He phrases the questions in the context of an “attempt at rescission” rather than the event of rescission. Either the rescission was sent or it wasn’t. In Jesinoski v Countrywide that is the end of the issue. If it was sent then TILA rescission is effective by operation of law. There is no attempt which insinuates that TILA rescission is a claim rather than an action with legal consequence. There is no attempt and there is no claim.
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Paying on the mortgage is only to protect the borrower’s credit rating and prevent action to foreclose on the mortgage that does not exist but will obviously be treated as existing in the current judicial climate. It does nothing to effect what has already occurred by operation of law. The loan agreement is cancelled and with it the note and mortgage became void. The only consequence, rather than effect, is such payments increase the amount of money due back from the parties to whom the money was given or from  parties who originated the loan agreement under TILA or unjust enrichment. No person, whether borrower or lender, can “waive” a legal event that occurred by operation of law any more than they can ignore a court order without being in contempt of court.
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TILA does pertain to refinancing. I don’t know what is meant by instant “circumstances.” Many “modifications” are actually refinancing. The creditor has changed and remains concealed. The entire purpose of the banks in modification is to validate what is otherwise a void or unenforceable loan agreement using undue duress or even extortion to get the borrower to sign away rights.

Filed under: foreclosure, investment banking, Investor, jurisdiction, legal standing, Pleading, prima facie case, quiet title, sham transactions, standing, STATUTES, TILA, TILA rescission | 13 Comments »

Tonight! How to Use TILA Rescission in Court! The Neil Garfield Show 6PM EDT

Posted on August 1, 2019 by Neil Garfield

FORENSIC AUDITORS TAKE NOTE

Thursdays LIVE!

The Neil Garfield Show

or prior episodes

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

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There are many potential claims arising out of attempted foreclosure after TILA rescission is effective.
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But one of them is not a violation of your rescission rights. By pleading that you are putting into play the burden of proving the effectiveness of rescission which has already occurred by operation of law.
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By pleading or arguing such a notion you are inviting interpretation form a court that is only too happy to reject your claim. In most cases your right to enforce the duties of a lender under the TILA Rescission statute, 15 USC §1635 has long since expired under TILA so you have no claim to violation of your rescission rights. You are making a claim that does not exist.
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Nearly all successful foreclosure defenses are based upon the defense narrative that the party bringing the foreclosure action has no right to bring it. In the case where rescission has been effected, there is no claim for foreclosure anymore. The debt remains but there is a new way to collect it under the TILA Rescission statute.
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You do have claims for violations of other statutes that protect consumers against fraudulent or wrongful claims and provide damages and the basis for declaratory, injunctive and supplemental relief. So you probably have a claim under the FDCPA in addition to other statutes. And you have claims under common law.

Filed under: foreclosure, Pleading, prima facie case, quiet title, standing, STATUTES, TILA, TILA rescission | Leave a comment »

How to Put Leverage Back Into the Hands of Homeowners

Posted on July 22, 2019 by Neil Garfield

You had the ultimate leverage when they needed your signature to start the loan agreement. Now you have the ultimate leverage if you can properly plead and become a credible threat based upon wrongful foreclosure. If a trust is named or implied as mortgagee or beneficiary you are not just threatening the one case of foreclosure filed against you, but all foreclosures initiated in the name of that trust.

Once faced with that threat the rule, contrary to general misconceptions, is that the homeowner will always receive offers of settlement that grant favorable terms. How beneficial? It depends upon the guts and determination of the homeowner and the lawyer for the homeowner.

see Homeowner Reverses Sale to Third Party Bidder Based on Wrongful Foreclosure and Get Modification

See https://livinglies.me/2019/07/19/california-decision-for-borrower-post-sale-in-eviction-proceeding/

See 2019.07.15 – Minute order for MSJ

See http://docplayer.net/37847883-The-exceptions-to-the-anti-injunction-act-a-federal-injunction-may-be-the-shortest-route-to-success-in-a-state-court-suit.html

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GET FREE HELP: Just click here and submit  the confidential, free, no obligation, private REGISTRATION FORM. The key to victory lies in understanding your own case.
Let us help you plan for trial and draft your foreclosure defense strategy, discovery requests and defense narrative: 954-451-1230. Ask for a Consult or check us out on www.lendinglies.com. Order a PDR BASIC to have us review and comment on your notice of TILA Rescission or similar document.
I provide advice and consultation to many people and lawyers so they can spot the key required elements of a scam — in and out of court. If you have a deal you want skimmed for red flags order the Consult and fill out the REGISTRATION FORM.
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THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
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The overwhelming majority of lawyers, judges and homeowners believe that they cannot stop a state from allowing the forced sale of the property, even though the the parties who initiate the forced sale are not creditors nor otherwise empowered to to conduct such a sale. Existing statutory and case law shows that is premise is wrong.

Further the existing consensus is that you cannot get a Federal Court to issue injunctions in either nonjudicial or judicial foreclosures. That too is wrong.

The simplest answer to the differentiation between consensus and reality is that not enough people are trying. In the real world of judicial warfare you can always find decisions that support bad applications of law and fact. The fact that this happens is no reason to abandon one’s rights, especially if it involves giving up title to your home and your lifestyle to companies who are merely seeking revenue from destroying your rights and interests.

An additional answer lies in the successful manipulation of news by the investment banks. Since 98% of all foreclosures happen by default (no opposition) banks are able to create the false notion that therefore the foreclosures were all solidly based in fact and law when nobody has ever decided that. By merely putting paper documents in front of judge that at a glance appear to be facially valid, the foreclosure is granted in judicial states and in nonjudicial states the parties initiating foreclosure don’t even need to do that.

Further upon losing cases, the banks almost always reach a settlement with homeowners where the homeowners are paid off to keep silent about their success. This has occurred in tens of thousands of cases that I know about and probably there are many more.

And finally, the banks have succeeded in mastering the psychology of litigation. The first thing they do when confronted by any credible threat in pleading is offer something that is worthless, indicating to the lawyer and the homeowner that their defense must be worthless. Unfortunately, most lawyers and most homeowners give up at his point because they are still trusting in the word of banks that engaged in the largest economic crime in human history. Homeowners hoping for an early end to the nightmare thus reach the false conclusion that any defense is hopeless.

Adding to that is the playbook that insurance companies use. They make it a long and tortuous process to get relief. They use ridicule and anything else at their disposal to delay litigation of your defense and just plain wear you out. That works a lot of the time.

So of all foreclosures initiated in the United States, less than 1/2% are resolved in favor of the homeowner upon reasonable economic terms. In simple numbers that means that a fair result was achieved in about 65,000 cases. In another 350,000+ cases, homeowners were able to hang onto their homes have been able to hang onto their homes on better terms than the original loan agreement. And in another 500,000 cases permanent loan “modifications” occurred wherein homeowners were able to renew payments on a loan agreement that was economically unsound.

For the banks it is “good business.” They get the revenue or cash flow from 98% of all foreclosures and the revenue from “modifications” in which the creditor is still not identified (because the debt has been reduced from actual to theoretical). When they lose they are losing revenue, not suffering any economic loss due to nonpayment.

Of the 65,000 cases reaching a fair result the banks manage to “save” approximately 60% of their revenue from foreclosures by offering deep discounts on loans they do not own. And in only 15,000-20,000 cases were homeowners brave enough and persistent enough to see it through to the end, where they defeated the foreclosure attempt on its merits. Because they had resolved to do that. In all such cases it required a level of perseverance bordering on obsession to get a just result.

Meanwhile in more than 12 million foreclosure cases thus far and climbing, investment banks are walking away with an average of $225,000 per case for a grand total thus far of more than two trillion seven hundred million ($2,700,000,000,000) dollars in revenue upon which they pay no tax because they falsely report it as repayment of debt. This deprived the US government and the economy of more than eight hundred ten billion ($810,000,000,000) dollars in tax revenue.

Why isn’t anyone doing something about that? Simple answer: because the banks control more of our governance than they have ever controlled in the past. The foxes are guarding the henhouse. And if you want to read an exposition of this problem and some methods to address it I strongly recommend reading and studying this plan from Elizabeth Warren whom I have followed with admiration since 2007 before she ever entered politics.

See End-wall-streets-stranglehold-on-our-economy

See the-coming-economic-crash-and-how-to-stop-it

Disclosure: While I do specifically endorse candidates I have donated money to the current and previous campaigns of Senator Warren.

 

Filed under: foreclosure, foreclosure defenses, Pleading, prima facie case, quiet title, sham transactions, standing, STATUTES, trial strategy | 6 Comments »

Just to be clear, MERS is absolutely nothing.

Posted on July 16, 2019 by Neil Garfield

For some reason I have been getting more questions about MERS lately. My analogy has always been that MERS is like a holograph of an empty paper bag. So here are some basic factors for the checklist and analysis:

  1. MERS never signed any contract with any borrower.
  2. MERS never has any contractual or other legal relationship with investors (certificate holders) or Government Sponsored Entities (GSEs) like Fannie, Freddie or Sallie.
  3. MERS never signed any agreement or contract with most named “lenders.”
  4. MERS never signed any agreement or contract with respect to any specific loan transaction or acquisition.
  5. MERS was never the Payee on any note from a borrower.
  6. MERS never loaned any money in any residential loan transaction.
  7. MERS never paid any money for the acquisition of any residential loan agreement, debt, note or mortgage.
  8. MERS never handled any money arising from the origination of the loan.
  9. MERS never handled any money raising from administration of the loan.
  10. MERS never received a loan payment.
  11. MERS never disbursed any money to any creditor of a debt created by a loan.
  12. MERS does not conduct meeting of its board of directors to authorize any officer to sign any document.
  13. MERS never asserts warrants that the information maintained on its platform is true, correct or even secure from manipulation.
  14. MERS’ members can enter the system to insert any data  they want to insert, delete, or change.
  15. MERS never claims any right, title or interest in any debt, note or mortgage. In fact, its website disclaims such an interest.
  16. MERS never maintains any agency relationship with any actual lenders.
  17. MERS never retains any agency relationship with any named lenders who are creditors after the loan is consummated.
  18. MERS has no successors.
  19. MERS never has power on its own to assign any right, title or interest to any debt, note or mortgage.
  20. MERS never has power as an agent to assign any right, title or interest  to any debt, note or mortgage except for a principal who does have a right, title or interest to whatever is assigned.
  21. MERS never warrants that it has any agency relationship or power of attorney on behalf of any party whom it warrants is its principal and who owns the right, title or interest to any debt, note  or mortgage.
  22. MERS never has any legal relationship or retainer with any lawyer seeking to enforce the note or mortgage in any transaction or court proceeding.
  23. MERS never has any legal relationship or agreement with any company asserted to be an administrator or servicer of a residential loan.
  24. MERS never has any legal relationship or agreement with any trustee of any REMIC trust.
  25. MERS has been sanctioned, banned and fined in many states along with the parties who claim rights through the use of MERS. Despite that MERS has never changed its practices or procedures.
  26. Any document of transfer of rights to a security instrument that shows a signature of a person who is identified as an officer or employee of MERS is a false document, with a false signature containing one or more false utterances.
  27. MERS is always a naked nominee possessed with no powers, rights or obligations and possessed with no rights, title or interests in any loans originated or acquired by third parties; however the courts have held that if a new party had paid for the debt, then it may instruct MERS to execute an assignment even if the original principal no longer exists.
  28. MERS is never party to any part of any loan transaction or loan acquisition in which consideration is paid.
  29. MERS is always a diversion from the true facts. In 2008 16 banks took my deposition for 5 1/2 days straight regarding the status of MERS. I said then and I say now that the use of MERS is less meaningful than using the name of a fictional character like Donald Duck.
  30. Despite thousands of attacks on me and my work over 12 years, not one memo, treatise or article has ever been published that said otherwise.
  31. No expert opinion has ever been given by affidavit or in live testimony to the contrary.
  32. In fact, not even a blog article or fake news article has ever said MERS is either a legitimate alternative to tracing title through county recording or a legitimate beneficiary under a deed of trust or a legitimate mortgagee under a mortgage. 
  33. The asserted presence of MERS on any document or pleading or notice always means that the lawyers, servicers and other third parties are seeking to conceal material facts from the borrower and from the courts.

Filed under: evidence, expert witness, Fabrication of documents, foreclosure, foreclosure mill, forensic investigation, legal standing, quiet title, securities fraud, standing, TILA | Tagged: | 11 Comments »

Beware of Magic Bullets

Posted on March 19, 2019 by Neil Garfield

Departing from my usual format, there are a few things I want to say to people who are looking for relief from foreclosure and are hearing what they want to hear.

  • ONLY A COURT ORDER CAN STOP A FORECLOSURE. THERE ARE NO EXCEPTIONS
  • YOU CAN’T GET A COURT ORDER UNLESS YOU FOLLOW THE RULES AND THE LAW.
  • NOBODY HAS EVER OBTAINED SUCH AN ORDER WITHOUT A PROLONGED COURT BATTLE.
  • If someone tells you “just do this” they are partially or entirely wrong or worse.
  • Like everything life is complicated and that includes litigation. Any thought you are entertaining that you have some magic elixir in which you will summarily get a court order is delusional.
  • Every plan looks good on paper until it is implemented.

I am worried that those who in good faith are trying to find the magic bullet are promoting a misguided set of principles that will continue to make bad law. I admit that I contributed to this initially back in 2008 when I proposed that a quiet title action should wrap things up. I was dead wrong and the people who continue to pursue that strategy are always getting the same result: the homeowner loses and another case is either decided badly or worse, makes bad law with a legal opinion issued by a judge or panel of judges.

The truth is that a successful quiet title action is a rare bird along with similar strategies. And remember that an unenforceable document by one party is no reason to lift an encumbrance from the chain of title. In order to remove an encumbrance from the chain of title, the instrument must be completely void and no voidable. That means it should never have been recorded in the first place or that it is now void by operation of law. That is the ONLY circumstance in which a mortgage or deed of trust or assignment of mortgage can be lifted out of the chain of title.

I do agree with the strategy of attacking the assignments in a lawsuit or motion. The motions don’t get much traction but the lawsuits tend to do better if they are pursued aggressively and persistently, with full recognition that no bank or service is going to roll over and play dead even if you are completely correct on the law. Your opponents and their lawyers will do everything in their power to wear you down, undermine your confidence and the undermine the confidence of the lawyer representing the homeowner. Your strategy must be laser-focussed, supported by substantive law and procedure.

But I don’t agree that any lay person can accomplish an attack on assignments without a lawyer representing them. If the practice of law was just about the contents of a statute we wouldn’t need courts. It’s about procedure, rules of evidence and basic notions and biases of fairness.

It’s true that the substitutions of trustee, the assignments, the indorsements etc. are probably legally void. For the most part they are fabricated. An assignment of mortgage probably lacks any foundation.

But what you’re up against, for example, is the fact that an assignment of mortgage is often assumed to be an assignment of the debt and the note. An indorsement of the note is often assumed to be an assignment of the debt. Possession of the note is often assumed to be possession of the debt. Possession is then assumed to be the result of delivery. Delivery implies authority. Transfer of the note implies a transfer of the debt. Transfer of the debt implies the assignment of mortgage was proper under state statutes. And a proper assignment supports a declaration of default and foreclosure. A proper assignment means that party foreclosing is going to get the proceeds of sale on foreclosed property. End of story.

So that is where you stand when your challenge begins. Don’t kid yourself. The task is daunting.

Those conclusions are all legally valid assumptions and presumptions because that is what the law says should be done with these documents and events. Facial validity is like possession — it’s 9/10 of the law.

If you think you can simply challenge these assumptions and presumptions and events and quickly get an order that completely undermines the parties attempting to foreclose — without going through a grueling court battle — you are simply wrong.

That said, thousands of homeowners have indeed won based upon such challenges. Nearly all of those cases have been buried under seals of confidentiality. The way they won was by educating the judge, one small piece at a time, using persuasive court techniques that nobody other than an experienced trial lawyer knows how to use. By the time the case ended, the court, unwilling to strike all such foreclosures, was careful to detail the specific abuses and gaps in the case against the homeowner.

Bottom Line: If you have the money and the time and the commitment to oppose these illegal foreclosures, by all means do it. And if you must do it pro se, know that the opposition will steamroll you on procedure and the laws of evidence. So you must have some knowledgeable lawyer giving you specific guidance as each point becomes an issue. Don’t pursue any strategy that promises to be a quick fix.

 

Filed under: burden of persuasion, burden of pleading, BURDEN OF PROOF, CORRUPTION, discovery, Discovery -Subpoena, education, evidence, Fabrication of documents, foreclosure, foreclosure defenses, foreclosure mill, forensic investigation, forgery, investment banking, Investor, jurisdiction, legal standing, MBS TRUSTEE, Pleading, prima facie case, quiet title, Servicer, sham transactions | 10 Comments »

Federal Court 2015 Deutsch Bank Case Reveals Bank Willingness to Lie Directly to the Court

Posted on January 31, 2019 by Neil Garfield

A mere glance at the procedure invoked by the attorney supposedly representing Deutsch Bank reveals the arrogance with which the lawyers present false cases based upon false documents and false execution of documents.

“Words matter, especially in real estate transactions. See Univ. Sav. Ass’n v. Springwoods Shopping Ctr., 644 S.W.2d 705, 706 (Tex.1982) (“the terms set out in a deed of trust must be strictly followed”); see also Mathis v. DCR Mortg. III Sub I, L.L.C., 389 S.W.3d 494, 507 (Tex.App. — El Paso, 2012) (“The rules of interpretation that apply to contracts also apply to notes and deeds of trust.”). Based on the words of the 2011 assignment, MERS was no more acting on its own behalf than was the bank’s own law firm.”

see deutsche-bank-nat27l-trust-co-v-burke2c-117-f-supp-3d-953-dist

So here is an attorney asking the court to vacate a decision in which the homeowner won. The lawyer had already falsely represented the status of Deutsch, the existence of a  trust and any implied transaction by which Deutsch or a trust took an interest in the Burke mortgage.

And here is part of what the court said in response, denying the absurd motion.

judgment was based on findings and conclusions that Deutsche Bank had failed to prove chain of title back to the original lender, now defunct. The sole proof on which the bank relied — a purported assignment from “MERS as nominee for the lender, its successors and assigns” — was held void, because the assignor did not exist when the document was signed.

Deutsche Bank’s first argument is based on a misrepresentation of the trial record. Deutsche Bank claims that it introduced into evidence the Burke note indorsed in blank by the original lender (IndyMac Bank), thereby establishing its right to foreclose as holder of the Note. (Dkt. 84, at 4). This claim is baseless, because, as the trial transcript makes clear, the only version of the Note successfully introduced by Deutsche Bank at trial contained no indorsement of any kind.

Prior to taking testimony, the Court sustained the defendants’ authenticity objections

from the very beginning of trial, Deutsche Bank’s counsel was on notice that if it wanted to introduce its version of the Note indorsed in blank, some proof of authentication would be necessary.

Based on that earlier transaction, Wells Fargo became Cornerstone’s “assign,” and MERS thereby acquired the authority to act as nominee for that entity in transferring the Deed of Trust. In this case, however, that critical element is missing.

There is simply no proof of an existing assignor with an existing right in the property capable of being assigned in 2011. It is undisputed that Indy-Mac Bank had been “dead” since 2008, several years prior to the 2011 assignment. (P. Ex. 6, at p. 1). Thus, any post-mortem transaction by that entity would be a nullity under Pool v. Sneed. [e.s.]

The only apparent “successor” to IndyMac Bank was IndyMac Federal Bank, but that entity was likewise shuttered in March 2009, nearly two years before the 2011 assignment. (P. Ex. 6). Even had that entity survived to 2011, substantially all of its assets had already been disposed of by that time. According to the FDIC notice admitted as Plaintiff’s Exhibit 6, “On March 19, 2009, IndyMac Federal was placed in receivership and substantially all of its assets were sold.” (Id. at p. 4) To whom those assets were sold, and whether the Burke Note was among those assets, are matters of sheer speculation on this record. [e.s.]

Logically, there are only two possibilities here, neither of which are any help to Deutsche Bank: either there was no assignee, in which case the 2011 assignment is necessarily void for reasons already given; or, there was an assignee, in which case there is necessarily another, prior assignment not found in this record. In other words, the 2011 assignment would merely be the last link in a chain of title consisting of at least two (and possibly more) links. If indeed there is such a gap in the chain of “assigns,” Deutsche Bank’s claim fails under Texas assignment law. See e.g. Pain Control Institute, Inc. v. GEICO, 447 S.W.3d at 899 (an existing right in the assignor is a precondition for a valid assignment); Leavings v. Mills, 175 S.W.3d 301, 310 *958 (Tex.App.-Houston [1st Dist.] 2004) (party seeking to enforce note must show “unbroken chain of assignments” to the original mortgagee); Jernigan v. Bank One, Texas, N.A., 803 S.W.2d 774, 777 (Tex. App. — Houston [14th Dist.] 1991) (“possibility of an intermediate transfer” precludes judgment as a matter of law concerning bank’s capacity to sue on note).

an agent is one who consents to the control of another, the principal, where the principal manifests consent that the agent shall act for the principal. First Nat’l Acceptance Co. v. Bishop, 187 S.W.3d 710, 714 (Tex.App. — Corpus Christi 2006). The party claiming agency must prove the principal has (1) the right to assign the agent’s task and (2) the right to control the means and details by which the agent will accomplish the task. Laredo Medical Group v. Lightner, 153 S.W.3d 70, 72 (Tex.App. — San Antonio 2004); Lyons v. Lindsey Morden Claims Mgmt., Inc., 985 S.W.2d 86, 90 (Tex. App. — El Paso 1998); Schultz v. Rural/Metro Corp., 956 S.W.2d 757, 760 (Tex. App. — Houston [14th Dist.] 1997). [e.s.][Editor’s note: This requirement is not fulfilled unless the principal is disclosed].

courts have long held that a party has no authority to execute a deed or contract on behalf of unnamed “heirs” or other parties not specifically named in the instrument. [e.s.] See Baldwin v. Goldfrank, 88 Tex. 249, 31 S.W. 1064, 1067 (1895) (upholding exclusion of deed where “names of heirs for whom [the attorney-in-fact] purported to act appeared neither in the body nor the signature to the instrument”); Stephens v. House, 257 S.W. 585, 591 (Tex.Civ.App. — Galveston 1923) (administrator of estate not authorized to bind unnamed heirs, despite recitation in contract that administrator acted “for myself and the heirs to the estate of the aforesaid Mary Owens”); see also Thompson v. Houston Oil Co., 37 F.2d 687, 689 (5th Cir.1930) (conveyance ineffective to pass title as to parties not named either in the body of the instrument or under signature of grantor acting under power of attorney, citing Baldwin).

it was Deutsche Bank’s burden [e.s.] under Texas law to prove the existence of that principal/agency relationship in 2011. Under the precedents cited above, the mere reference to IndyMac Bank’s “successors or assigns” is insufficient, because it fails to specify the names of those persons or entities (assuming they even existed). [e.s.] Nor has Deutsche Bank submitted any extrinsic evidence which might identify MERS’s principal. [e.s.]

 

 

Deutsche Bank’s third argument is a red herring.

The problem here is not a voidable defect that a defrauded assignor might choose to disregard — it is the absence of a valid assignor [e.s.] (i.e. a real entity owning the right to be assigned) in the first place. Cf. L’Amoreaux v. Wells Fargo Bank, N.A., 755 F.3d 748, 750 (5th Cir.2014) (considering homeowner’s challenge to validity of MERS assignment on its merits, implicitly rejecting bank’s “voidable” argument).

Texas law is clear that a party seeking to foreclose on a home equity loan bears the burden to demonstrate its authority to prosecute the foreclosure. See, e.g., Tex.R. Civ. P. Rule 736.1(d)(3)(B) (petition must describe “the authority of the party seeking foreclosure”); Rule 736.6 (“the petitioner has the burden to prove by affidavits on file or evidence presented the grounds for granting the order [allowing foreclosure]”). When the entity seeking to foreclose was not party to the original transaction, then that entity must be able to trace its right to foreclose back to the original mortgagee. [e.s.] See e.g. Leavings v. Mills, 175 S.W.3d 301, 310 (Tex.App. — Houston [1st Dist.] 2004) (party seeking to enforce note must show “unbroken chain of assignments” to the original mortgagee); Miller v. Homecomings Financial, LLC, 881 F.Supp.2d 825, 829 (S.D.Tex.2012) (citing cases).

Texas has long followed the common law rule that “in order to convey by grant, the party possessing the right must be the grantor, and use apt and proper words to convey to the grantee, and merely signing and sealing and acknowledging an instrument in which another person is grantor, is not sufficient.” Agric. Bank v. Rice, 45 U.S. 225, 4 How. 225, 242, 11 L.Ed. 949 (1846). Applying this rule in an early case, the Texas Supreme Court declared as “wholly inoperative” a deed signed by a spouse who was not named as grantor in the body of the deed. Stone v. Sledge, 87 Tex. 49, 26 S.W. 1068, 1069 (1894). The bank’s position here is less compelling than that rejected in Stone, because “MERS as beneficiary” appears neither in the signature line nor in the body of the 2011 assignment.

There remains one additional matter. In the last sentence on the last page of its last brief to this court, Deutsche Bank asks to reopen the trial record to provide “the wet ink original of the Note or testimony affirming Deutsche Bank’s status as holder of the Note.” (Dkt. 90, at 7). No authority or excuse is offered for this breathtakingly late request. Even assuming such evidence exists, Deutsche Bank does not pretend that it is “newly discovered”, nor that the bank was excusably ignorant about it until after trial despite using due diligence to discover it. See 11 WRIGHT, MILLER & KANE, FEDERAL PRACTICE AND PROCEDURE § 2808 (2012). After four years of litigation, including court-ordered mediation and trial on the merits, the time for such a deus ex machina maneuver has long since passed. The Burkes are entitled to the finality of judgment that our judicial process is intended to provide. The bank’s request for a do-over is denied.

Filed under: burden of persuasion, burden of pleading, BURDEN OF PROOF, CORRUPTION, evidence, Fabrication of documents, FDIC, foreclosure, forensic investigation, jurisdiction, legal standing, Mortgage, prima facie case, quiet title, Servicer, standing | 4 Comments »

Why Everyone (except SCOTUS) is Wrong About TILA Rescission

Posted on June 26, 2018 by Neil Garfield

All contrary arguments are erroneous since they would insert a contingency where the statute contains no room for any contingency. The language of the statute bars any such contingency when it says that the TILA Rescission is effective upon delivery, by operation of law. If anyone wants the statute to say or mean anything different they must get their remedy from the legislature, not the courts, who have no authority whatsoever to interpret the statute otherwise. The status of any case involving foreclosure is that it does not exist. Hence the court is left ONLY with the power to perform the ministerial act of dismissing the case for lack of jurisdiction.

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

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

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

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So in answer to questions about putative “modifications”, eviction or unlawful detainer, bankruptcy, and TILA Rescission this is what I have written in response to some inquiries.

Should the rescission be recorded? Not necessarily but

YES. I would like to see it recorded. You need to check with the clerk in the recording office or an attorney who understands recording procedure. Generally recording a document with an old date must be attached to an affidavit that is recorded with the notice of rescission attached. The affidavit explains that the attachment was inadvertently not recorded at the time it was created.

*

Should a copy of the notice of rescission be filed in the court record also?

YES. If there is any way to get the recorded document into the court record, it should be pursued.

This presents title issues because if you are recording this long after events have transpired, some of which are also recorded as memorializing transactions, fake or real. Any recorded instruments that purports to be a memorialization of a transaction before the rescission was recorded would generally be given priority.
*
The lawyer sent me an answer to my notice of rescission. Now what?
Either file to enforce the duties to be performed (if you are within one year of the date of delivery of the notice of rescission), or file a quiet title action if the one year has expired. There are several different scenarios actually, but this is the one I would focus upon.
*
I am getting kicked out of bankruptcy court. Now what?
Getting “kicked out” of BKR court probably means that you are back in the state court system which might open some opportunities for you to get more into the court record. (Like an old rescission).
*
My property is being sold. Does that mean that I have to get out?
*
They can’t get you out without filing an unlawful detainer (eviction in some jurisdictions) based upon an asserted change of title. There might be a period of time between the sale and the attempt to get you out of the home (eviction or unlawful detainer). If the property is sold to a “third party” they want want rent from you, which could allow you to stay.
The unlawful detainer action presents another opportunity to raise the issue of rescission, since the entire action is based upon a valid change of title. It also sets off potentially another round for appeal, especially on the issue of rescission. Res Judicata and Collateral Estoppel do not apply to jurisdictional issues. If the rescission was mailed then by operation of the law the note and mortgage are void.
The defense is ordinarily that the “sale” was a fabrication based upon fictional claims and was contrary to the notice of rescission, which voided the note and mortgage upon which they were relying. The time for challenging the rescission has long passed. Hence all enforcement actions after the date of the 2009 rescission are void since they were based upon various claims attendant to paper instruments that were void, effective the day of delivery of the rescission.
Note that delivery of TILA Rescission notice is complete when dropped in a USPS mailbox and your testimony that it was sent via US Postal Service is all that is necessary as foundation.
I sent 2 notices of rescissions. Is that better or worse for me?
If I was defending against your claim of rescission I would argue that sending the 2016 rescission was either an admission that the earlier one had not been sent or that it was a concession that, for whatever reason, the 2009 rescission notice had been abandoned.
Hence I suggest you put very little emphasis on the new rescission and maximum emphasis on the old rescission.
*
I sent the rescission less than 3 years after the modification but more than 3 years since the alleged consummation. Hoes my rescission affect my loan in that instance?
In most cases “modifications” are not treated as new loans. But the fact that something is called a modification and it really changes everything including the “lender” it may be possible to characterize it as a new loan subject to TILA Rescission. TILA Rescission hinges on whether the “modification” was a new loan — a fact, we would argue — that must be determined by trial. Since intent is part of the analysis of a contract, this could present another opportunity to force them to admit they don’t know the identity or intent of the creditor and whether said creditor had given them authority to make a new contract.
And the underlying narrative for this approach is that as a new contract, the “lender” was required to comply with disclosure requirements at the time of the new contract, thus triggering the three day right of rescission and the the three year limitation. Under my theory, based on Jesinoski, it doesn’t matter whether the three years has expired or not.
We know for certain that the notice of rescission is effective upon mailing; it is not based upon some contingent event or claim or court order. The date of consummation is itself a factual issue that can be in the pleading of the creditor (who is the only one with standing, the note and mortgage having been rendered void) claiming that the notice of rescission should be vacated based upon the three years, the date of consummation etc. 
Any alternative theory that puts the burden on the property owner would be contrary to the express wording of the statute and the SCOTUS ruling in Jesinoski. The statute 15 USC §1635 and SCOTUS are in complete agreement: there is no law suit required to make rescission effective. It would make the statutorily defined TILA Rescission event indefinite, requiring a court ruling before any rescission would be treated seriously. In other words, the opposite of what the statute says and the opposite of what SCOTUS said in Jesinoski. 
All contrary arguments are erroneous since they would insert a contingency where the statute contains no room for any contingency. The language of the statute bars any such contingency when it says that the TILA Rescission is effective upon delivery, by operation of law. If anyone wants the statute to say or mean anything different they must get their remedy from the legislature, not the courts, who have no authority whatsoever to interpret the statute otherwise. The status of any case involving foreclosure is that it does not exist. Hence the court is left ONLY with the power to perform the ministerial act of dismissing the case for lack of jurisdiction.
All this is important because we ought to be heading toward any defensive strategy that reveals the absence of a creditor. We are betting that the fight to conceal the name of the creditor is a cover for not knowing the the identity of the creditor, hence fatally undermining the authority as holder, servicer, trustee or anything else.
*
What if consummation never occurred?
It may turn out that consummation between the parties to the note and mortgage never occurred. It’s important to remember that would mean the rescission is irrelevant since the loan contract does not exist. But such a finding by a court of competent jurisdiction would negate the legal effect of the note and mortgage; this is true as long as the note was not purchased for value in good faith by a buyer without knowledge of the borrower’s defenses.
In that case, the burden does shift to the homeowner and it is entirely possible that under that scenario there could be no consummation but nevertheless homeowner liability would continue on the falsely procured note and potentially the mortgage as well. The reason is simple: that is what the State statute says under Article 3 and Article 9 of the UCC, as adopted by all 50 states. The homeowner’s remedy in such a scenario would be limited to actions for damages against the intermediaries who perpetrated the the fraudulent and fictitious “transaction” in which the named lender failed to loan anything.

Filed under: BURDEN OF PROOF, foreclosure, jurisdiction, legal standing, MODIFICATION, Motions, originator, Pleading, quiet title, sham transactions, TILA rescission | Tagged: , , , , , , , , | 5 Comments »

Adverse Possession vs Cancellation of Instrument and Quiet Title

Posted on April 11, 2018 by Neil Garfield

In the final analysis, the only way to smoke out the banks on their fraudulent claims as “creditors” or “agents of creditors” is to create a situation where the creditor must be disclosed. In those cases where judges have ruled in discovery or ruled on the right to prepay, subject to identification of the creditor, the cases have all settled under seal of confidentiality. There are thousands of such cases buried under side agreements requiring “Confidentiality.”

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I have been seeing a number of people adding Adverse Possession to their theories about Quieting title. So let me say first that an order granting quiet title to a homeowner whose title is encumbered by a recorded mortgage or deed of trust is practically impossible not only because judges don’t want to grant it, but for the more important reason that quiet title is not legally sound strategy for homeowners seeking defend their homes from foreclosure.

In order to quiet title, one would need to allege and prove by clear and convincing evidence that the mortgage or deed of trust should never have been executed or recorded in the first place. Anything less than that does not deserve quiet title declaration from any court. The fact that a certain party purports to have authority to enforce the mortgage or deed of trust when in fact they don’t have such authority is damn good reason not  to let them enforce the mortgage or deed of trust. But that does not mean that the instrument is void.

Here is the response I gave to a question about adverse possession:

Adverse possession does not seem to apply to this situation. But it is possible that you could get traction by filing a lawsuit to cancel the DOT (Cancellation of Instrument) and maybe even get a order quieting title to your name. This is not simple and the requirements and elements of such claims are difficult to fulfill.

Adverse possession is usually utilized in boundary disputes.
A mortgage or a deed of trust is an interest in real property. And where we are dealing with the deed of trust,The trustee is receiving title to the property. So technically you are probably correct. But when you look deeper, You will see that adverse possession does not apply.
The transfer of title to a trustee under the deed of trust divests the homeowner of title. Under the terms of the DOT you are entitled to live there and act, for all  purposes, as though you are the title owner including in a foreclosure proceeding. Hence several elements of adverse possession are not met especially “adverse,” since you have express permission under a contract to be there and to act as the title owner.
ELEMENTS OF ADVERSE POSSESSION: (NOTE — the “title owner is the DOT trustee)
  • Continuous
  • Open
  • Notorious
  • Peaceful, Peaceable
  • Hostile (claiming title against the interest of the party who actually has title)
  • Adverse (no permission or contractual right to assert title against the party who is seized with title).
  • Exclusive (barring claims or use by the actual title owner
  • Visible (putting a fence on your neighbor’s yard, ignoring the property line)
  • Actual (not implied)
But the fact that the DOT conveyed title to a real trustee on behalf of a false beneficiary is probably the basis for a lawsuit to cancel the instrument (if you can prove your allegations) and then get an order declaring the title is quieted, free from the encumbrance of record that is declared by the judge to be void.
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You need to be careful though about your conclusion that the DOT was void. This involves several factual questions that are not obvious. Even a void instrument could conceivably be valid if it contains a defect that is corrected or could be corrected by affidavit pursuant to local law.
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Your argument would be that no such affidavit was ever offered. Thus even after you filed your lawsuit, they failed or refused to make any corrections.
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Their argument will circle around third party beneficiary, “standing,” and the fact that SOME party could enforce it if they could show that they were the intended beneficiary despite the recitation on the face of the DOT.
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This is not the basis for a simple legal argument. Each side must allege and prove their factual (what happened, when, where, who was involved and why) allegations by at least a preponderance of the evidence and most probably, legal or not, the homeowner would be held to a higher standard of clear and convincing evidence informally or formally because the recorded documents carry a “presumption” of authenticity and validity that the homeowner must overcome.
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Academically speaking such claims are well-founded. But in practice judges look at such claims as gimmicks to get around a legitimate debt. In order to combat that we must figure out a way to bring in a party who has a legitimate claim to represent the unknown and undisclosed creditors.
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The banks have successfully cast the money trail in obscurity. The banks are committing fraud with each foreclosure in my opinion and in the opinion of everyone else I know that has analyzed the securitization of mortgage debt. But they have made it appear that there is nobody other than the bank’s pet entities (the so-called trusts) to play the role of creditor.

Filed under: burden of persuasion, burden of pleading, BURDEN OF PROOF, CORRUPTION, discovery, evidence, Fabrication of documents, foreclosure, originator, quiet title, standing, trustee | 5 Comments »

Deutsch Bank National Trust Company Was Crushed in Texas in 2015. Why isn’t anyone listening?

Posted on January 22, 2018 by Neil Garfield

When a judge looks carefully at the record, the bank loses. The use of Deutsch’s name in the style of the case still shows that Judges are considering the Plaintiff to be the named “Trustee” instead of the named (or named, which is frequently the case) Trust. In fact the Trustee has nothing to do with foreclosures. In this case the Judge wrote the following:

“Judgment (for the homeowner for declaratory relief) was based on findings and conclusions that Deutsche Bank had failed to prove chain of title back to the original lender, now defunct. The sole proof on which the bank relied — a purported assignment from “MERS as nominee for the lender, its successors and assigns” — was held void, because the assignor did not exist when the document was signed.

“Deutsche Bank’s first argument is based on a misrepresentation of the trial record. [i.e. the lawyers were lying to the court about what was in the trial record].

“The Burkes argued that the stamp block containing the Cathy Powers signature was not a part of the Note as originally executed, and instead offered a copy of the unindorsed Note as one of their own exhibits,

“This absence of documentary proof mirrors the lack of any testimonial evidence of holder status. Given its utter failure of proof, Deutsche Bank’s continuing assertion of a right to foreclose as holder of the Note is not just groundless, it is frivolous. On this trial record the current holder of the Burke Note remains a mystery.

“Deutsche Bank introduced no proof whatever of a prior transaction by which it acquired any rights in the Note. Absent such proof, L’Amoreaux is not controlling. Here MERS was acting on behalf of a defunct entity (IndyMac Bank), and its purported assignment was therefore void and invalid under the Texas common law of assignments, as explained below.

“There is simply no proof of an existing assignor with an existing right in the property capable of being assigned in 2011. It is undisputed that Indy-Mac Bank had been “dead” since 2008, several years prior to the 2011 assignment. (P. Ex. 6, at p. 1). Thus, any post-mortem transaction by that entity would be a nullity under Pool v. Sneed.

“In sum, L’Amoreaux does not undermine this court’s judgment in favor of the Burkes because (1) there is no record evidence of a prior assignment of the lender’s interest in the Note or Deed of Trust, (2) there is no record evidence that any purported assignor existed at the time of the 2011 assignment; and (3) there is no record evidence of a principal/agency relationship between MERS and any “successor or assign” of the lender when the assignment was executed.

“Deutsche Bank’s third argument is a red herring

“a homeowner is allowed “to challenge the chain of assignments by which a party claims a right to foreclose….” Id. at 224. It is true that in Texas an obligor cannot defend against an assignee’s efforts to enforce the obligation on a ground that merely renders the assignment “voidable at the election of the assignor,” such as a fraudulent signature by an unauthorized corporate agent. Id. at 225. The problem here is not a voidable defect that a defrauded assignor might choose to disregard — it is the absence of a valid assignor (i.e. a real entity owning the right to be assigned) in the first place. Cf. L’Amoreaux v. Wells Fargo Bank, N.A., 755 F.3d 748, 750 (5th Cir.2014) (considering homeowner’s challenge to validity of MERS assignment on its merits, implicitly rejecting bank’s “voidable” argument).

“A court’s primary duty in construing a written contract is to ascertain the true intention of the parties as expressed in the language of the document itself. Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983). In this document, the name of the assignor, “Mortgage Electronic Registration Systems, Inc.” appears three (3) times — in the body of the assignment, above the signature line, and in the corporate acknowledgement. Each time, MERS’s name is immediately followed by the phrase “as nominee for” the lender, IndyMac Bank, its successor and assigns. P. Ex. 2. Nowhere does this document hint that MERS intended to convey its own rights,[8] or that it was acting as principal rather than as agent for other entities.

Words matter, especially in real estate transactions. See Univ. Sav. Ass’n v. Springwoods Shopping Ctr., 644 S.W.2d 705, 706 (Tex.1982) (“the terms set out in a deed of trust must be strictly followed”); see also Mathis v. DCR Mortg. III Sub I, L.L.C., 389 S.W.3d 494, 507 (Tex.App. — El Paso, 2012) (“The rules of interpretation that apply to contracts also apply to notes and deeds of trust.”). Based on the words of the 2011 assignment, MERS was no more acting on its own behalf than was the bank’s own law firm.

“Deutsche Bank asks to reopen the trial record to provide “the wet ink original of the Note or testimony affirming Deutsche Bank’s status as holder of the Note.” (Dkt. 90, at 7). No authority or excuse is offered for this breathtakingly late request. Even assuming such evidence exists, Deutsche Bank does not pretend that it is “newly discovered”, nor that the bank was excusably ignorant about it until after trial despite using due diligence to discover it. See 11 WRIGHT, MILLER & KANE, FEDERAL PRACTICE AND PROCEDURE § 2808 (2012). After four years of litigation, including court-ordered mediation and trial on the merits, the time for such a deus ex machina maneuver has long since passed. The Burkes are entitled to the finality of judgment that our judicial process is intended to provide. The bank’s request for a do-over is denied.

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

see Deutsche Bank Nat’l Trust Co. v. Burke, 117 F. Supp. 3d 953 – Dist

 

Filed under: burden of persuasion, BURDEN OF PROOF, CASES, discovery, evidence, expert witness, foreclosure, foreclosure defenses, foreclosure mill, legal standing, MBS TRUSTEE, Mortgage, Motions, Pleading, quiet title, standing, Trail Objections | 4 Comments »

Short Explanation of TILA RESCISSION vs Common Law Rescission

Posted on December 13, 2017 by Neil Garfield

Quiet title is a lawsuit not a motion. It must be worded correctly to fulfill the elements required for the court to consider the demand for quiet title. Otherwise it will be dismissed.

For quiet title to apply the mortgage must be void not just unenforceable. TILA Rescission is a statutory remedy that is different from common law rescission. Sending of TILA rescission notice by U.S. Mail means that delivery is presumed. If delivery occurred or is presumed the TILA Rescission is effective. Just the opposite in common law rescission based upon fraud. At common law, sending a notice of rescission based upon fraud is only the first step in a long litigation process.

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One must be careful NOT to file a lawsuit or motion seeking to have the court declare it is effective. Either the notice was delivered or it wasn’t delivered. If U.S. Mail is used d delivery is presumed. If it was delivered it is effective. That is what the statute says and that it was SCOTUS said about the statute. The matter should be closed, but judges are resisting following the directive of the highest court in the land from which there is no appeal. (See Jesinoski v Countrywide).

If the notice of rescission is sent within three years of apparent consummation then there is no doubt that it is effective. If it is sent more than 3 years after the note and mortgage were executed then there is a split of opinion. I believe it is still effective until the rescission is vacated by a court order. In either case — before and after the three years — courts are reluctant to apply it.

The appropriate lawsuit could be framed in allegations that the defendants should be stopped from attempting to enforce the void loan documents or stopped from harassing the borrower using the void note and void mortgage. Both are rendered void by virtue of the notice of rescission.

If the lawsuit is filed within 1 year of the date of the notice of rescission it could also include allegations that the defendants (if they are lenders) failed to comply with the three statutory duties in the TILA rescission statute. Or, if they are not lenders nor representatives of the lender that they committed multiple violations of TILA, RESPA and FDCPA as well as fraud and negligence and of course uttering false instruments and recording instruments that are false or fraudulent.

TILA RESCISSION is an statutory event not a claim. No lawsuit is proper to declare an already legally effective instrument to be effective. It happened on the day of mailing. Best to use U.S. Postal Service for the notice.

Common law rescission is a claim not an event. In that sense they are procedural the opposite of one another. A lawsuit is required and the pleader must prove the allegations which ordinarily means that they must prove fraud by clear and convincing evidence.

We can help evaluate your options!
Get a LendingLies Consult and a LendingLies Chain of Title Analysis! 202-838-6345 or info@lendinglies.com.
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OR fill out our registration form FREE and we will contact you!
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THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
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Filed under: common law rescission, foreclosure, Pleading, quiet title, TILA | Tagged: , , , , | 10 Comments »

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