Geoff Walsh of National Consumer Law Center (NCLC) publishes very informative article regarding foreclosure

Almost everyone writing articles about consumer finance, mortgage loans, and servicing is now in agreement that there are viable meritorious defenses for the consumer. True, they are not obvious to the casual observer, which is part of the problem.

see NCLC Digital Library – 12 Ways to Fight Foreclosure of Zombie Second Mortgages – 2022-03-28

But the defenses available to consumers and to homeowners, in particular, are sufficient to defeat most attempts to administer, collect or enforce any alleged loan account receivable mostly because no such account exists on the books of the party named as the owner of the”note”.

  • Further, there are sufficient and meritorious grounds to force repayment of money previously paid by the consumer.
  • And finally, there are sufficient and meritorious grounds to claim damages for breaches of statutory duties requiring disclosure and equitable remedies for restitution arising from the consumer’s involuntary assumption of unknown risks.

What is apparent in the above links is the conflict between common law, previous statutory law, and current regulations regarding transfers of rights to unpaid loans. Common sense dictates that you should be under no duty to pay anyone other than the “lender” who gave you money unless that “lender” instructs you to pay someone else on their behalf in writing.

That instruction never comes now although it was ALWAYS required by all previous laws, rules,.. regulations, and court doctrine. Instead, agencies are continuing along the path of requiring only the transferee to give notice of a transfer of ownership of “the note” in lieu of any notice from anyone instructing the debtor consumer that the underlying obligation and been transferred to a successor lender because it was sold to that successor.

Consumers contact their State AG and the CFPB who maintain their office under charter to protect consumers who lack the resources to protect themselves. Instead of doing their jobs, the agencies and law enforcement shoves it back in the face of hapless consumers who know little or nothing about the law and who only want to pay their bills — but only to people to whom they owe money. That is not an unreasonable caveat.

So I have proposed to multiple lawyers, consumers and advocates across the country that they start suing the agencies seeking equitable (injunctive relief), specifically mandating that the agency do its job and more specifically that the CFPB and FTC do their job.

Here is my summary:

  • Adm Agency has a duty as specified in its charter as passed by specific legislation.
  • Specifically, CFPB was formed to investigate and resolve consumer complaints regarding lending and servicing – recognition that consumers are at a disadvantage in clarifying, confronting or contesting claims made for administration, collection, and enforcement of alleged unpaid loan account receivables.
  • More specifically these agencies are required to intervene on behalf of consumers when false claims are made as to the existence, status or ownership of allegedly unpaid accounts receivable owed by the consumer.
  • CFPB breached its duty by adopting rules and policies that converted its primary mission into a message carrier. The effect was to delegate back to the consumer the burden of investigational and resolution. [specify rules and policies]
    • GIVE EXAMPLES FROM SPECIFIC CASES
    • DON’T MAKE WILD CONSPIRACY ALLEGATIONS
  • Court should enter an order that
    • Finds CFPB in breach of duties of supervision, investigation and resolution
    • Orders CFPB to adjust its rules and policies
    • Specifically order CFPB to require confirmable proof that parties acting as presumed servicers and actually performing servicing functions with respect to the receipt, processing, and distribution of money paid by consumers
    • Specifically order CFPB to require confirmable proof that parties named as claimants, DOT beneficiaries, or successor mortgagees maintain a loan account receivable (GAAP compliant) on their own accounting ledgers
    • Specifically order CFPB to require confirmable proof that parties named as claimants, DOT beneficiaries, or successor mortgagees attest and acknowledge that they authorized specifically identified parties to act on their behalf for the administration, collection and enforcement of unpaid debts owed by specific consumers, borrowers or debtors.

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

Please Donate to Support Neil Garfield’s Efforts to Stop Foreclosure Fraud.
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Neil F Garfield, MBA, JD, 75, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.

But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more. In addition, although currently rare, it can also result in your homestead being free and clear of any mortgage lien that you contested. (No Guarantee).

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

Please visit www.lendinglies.com for more information.

Why the SEC Needs to Regulate Falsely Labeled “Mortgage Backed Securities”

The SEC should be regulating these transactions because the investment banks are evading regulation through claiming an exemption that defines their financial product as a private contract and not a security subject to regulation by the agency. But they still label the financial product as a “mortgage backed security.” It does not take a legal genius to know that they can’t have it both ways. Either it is a security or it is not.

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Consumers and homeowners have been continually frustrated by the lack of any support from any federal or state agency whose charter requires them to protect the public. The reason for this lies and political reality and economic stupidity.

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The stumbling block here is that the certificates have been subject to an administrative determination that they are not subject to regulation, pursuant to the exemptions that became law in 1998 and 1999. If you actually want to make some headway, you have to confront that administrative determination. And the way you do that, in my opinion, is by challenging the perception that the IOUs issued by the investment banks qualified for the exemption because they were “pass-through certificates.” This perception is perpetuated by the continual use of the phrase “mortgage-backed securities.” Even a casual reading of the indentures on the IOUs and prospectuses reveals that the holder of the IOU has no claim on any collection from homeowners, nor any contingent claim relating to the enforcement of any debt, nor a mortgage.

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These IOUs are covered in window dressing that appear to satisfy the requirements of the 1998 exemption because a loan is a private contract and there’s not a security that could be regulated by the SEC. But established case law clearly shows that the SEC is charged with the responsibility of looking at the substance of the transaction and not just the form. In any case where the investment by the investor is based on a passive receipt of income, revenue or profits, it is a security.
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The IOUs promise one thing, and even that promise is discretionary on the part of the investment bank. The promise is to make scheduled payments for an indefinite period of time with no principal due and no “interest” paid. That is not a loan and it is not a promissory note. It is a security with risk factors that are not disclosed to investors. It is a security whose sale is used to pay back other lenders to the investment bank that funded payments to homeowners in exchange for the issuance of written instruments that were a component of the IOU certificates that were securities.
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The homeowners believe they’re buying a loan product when inf act they have been drafted into becoming co-issuers of a security that is sold to investors. They receive no benefit from that sale. While the sale of the falsely labeled loan documents appears to be a loan, it does not result in the existence of a lender or loan account receivable — even though homeowners are convinced, through false representations, that there is full compliance with lending laws.
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The continued posture of the SEC in failing to address gross procedural and substantive irregularities and, illegal conduct based upon completely false premises and extra-legal business structures has produced a gross shift of wealth from Main Street to Wall Street. Wall Street firms are in the business of selling securities and collecting a commission for their services. Under the current scenario, these firms t have turned underwriting fees on their head. Instead of receiving 15% commission fees, they receive at least 1200% of the transaction. The transaction allows them to control the flow of money without any legal ownership, thus avoiding detection and prosecution for violations of many laws governing the sale of securities, loan products, and “servicing” without any underlying loan account receivable to enforce.
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The SEC.gov website is used as a conduit to perpetuate the farce created by these firms. By filing a prospectus, they gain access to the SEC site. They then are allowed to upload virtually anything under that filing number. Then they download the document that has never been reviewed, affirmed or confirmed, and this produces a copy of the document with the sec.gov URL in the header of the document. Then the lawyers seeking enforcement of a nonexistent loan account receivable produce that copy in court along with a private certification affirming that it came from the SEC.gov website and ask for judicial notice — thus falsely claiming that the document came from a disinterested source.
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The SEC has lost control of the largest Ponzi scheme in recorded history. It is time for this agency, which has the muscle and teeth to do something about this., to reconsider its current position, and to enforce the laws as they are written based upon substantive facts as they occurred.

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DID YOU LIKE THIS ARTICLE?
Nobody paid me to write this. I am self-funded, supported only by donations. My mission is to stop foreclosures and other collection efforts against homeowners and consumers without proof of loss. If you want to support this effort please click on this link and donate as much as you feel you can afford.Please Donate to Support Neil Garfield’s Efforts to Stop Foreclosure Fraud.
CLICK TO DONATE

Neil F Garfield, MBA, JD, 75, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us. You will receive an email response from Mr. Garfield  usually within 24 hours. In  the meanwhile you can order any of the following:

Click Here for Preliminary Document Review (PDR) [Basic, Plus, Premium) includes 30 minute recorded CONSULT). Includes title search under PDR Plus and PDR Premium.

Click here for Administrative Strategy ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
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CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
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CLICK HERE TO ORDER CASE ANALYSIS 
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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.

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

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

Please visit www.lendinglies.com for more information.

WHAT IS A SERVICER ADVANCE? According to Ocwen it has zero credit risk and is not really an advance

One place where securitization players and foreclosure players don’t lie is in reports that are formally filed with the SEC. So in my research, I found a document in which Ocwen describes itself and which is subject to judicial notice because it is a government document downloaded from the Sec.gov website. The filing of 8k and other reports required by securities laws and regulations is an official act. It is a sworn representation by the issuer (Ocwen here) that the facts being presented are accurate and true on penalty of going to jail. Here we see a filing that identifies the people who would go to jail if the facts were not at least arguably accurate.

THIS IS ALSO A MENU OF INDIVIDUALS WHO COULD BE SUED INDIVIDUALLY FOR PARTICIPATING IN FRAUDULENT, NEGLIGENT ENTERPRISES AND WRONGFUL FORECLOSURES. 

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NOTE ON JUDICIAL NOTICE AND SEC.GOV

Note my words here. In most court cases, the documents used by foreclosure mills are merely self-serving documents laundered through the SEC website. If you have the credentials you can upload anything including but not limited to porn.

So for court purposes only they upload as much as they can to the SEC.gov website — and then download it with “sec.gov” in the heading. Then they produce it as a governent document (which it isn’t) and ask for judicial notice. Without opposition, the judge grants the motion for judicial notice and that practically means the case is over.

Most pro se litigants don’t know what judiclal notice is and most lawyers and homeowners take it for granted that they can’t oppose judical notice for a government document. they forget to inquire whether that IS a government document and in virtually ALL cases, it is not a govenrment document — and therefore (1) it is not subject to judicial notice and (2) the attempt to use it as such is subject to a motion for contempt and sanctions — if you file the motion. This is another example of how the banks are using pure fabrications and weaponizing civil procedure to support their thieving scheme.

see https://shareholders.ocwen.com/static-files/24390846-8787-4a36-9c30-53b5b5f0a0e5

OCWEN 8K 0001193125-13-015500

Note that this is a “Lender’s Presentation.” That means it is a presentation to prospective lenders. Any lies would be subject to criminal prosecution not only for violations of securities laws but also for bank fraud.

Take a look at this from Ocwen’s 8k report to the SEC in 2013: Note how the filing is devoid of any representation that Ocwen is a lender, successor lender, or attorney in fact for anyone.

Note how Ocwen is basically always teetering close to bankruptcy because it has very few assets and maintains a business plan that is always based entirely on income from “servicing.”

Note how on page 20 they represent Ocwen, BOA servicing, Chase servicing, Saxon Servicing, Litton Servicing, and HomeEq Servicing to all be the same thing. Since 2013 you can add PHH, REZ, and other entities or names that were used ficitiously.

THEN ON PAGE 36 THEY ANSWER THE QUESTION: WHAT IS A SERVICER ADVANCE?

  1. Note that they use the word “advance” in quotes, just like I did here. That is because if they said it was an advance they would be lying. There is no advance. This is a cover-up for the fact that there is no loss to anyone when scheduled payments are not paid by homeowners. So there is no need for any advance, much less by a “servicer”. No company would accept responsibility for making such advances. Imagine if your bookkeeper said “That’s ok, if they don’t pay you, I will.” Imagine the fees that would need to be paid for any company to incur such liability. Imagine insurance and reserve deposits required. None of those things exist.
  2. So the advance does not come from Ocwen’s balance sheet and it actually does not exist. This is cover for the Master servicer putting in a claim for nonexistent advances. All payments to creditors of the securities brokerage firm (i.e., investors who purchased uncertificated certificates) are made from a huge such fund that is referred to in other documents as a reserve pool which consists of (1) proceeds from the sale of the certificates (2) money deposited with permission of the stockbroker who started this scheme including money received from homeowners and (c) proceeds of sales from other similar schemes. It is all commingled and obviously, this has nothing to do with any homeowner (aka “borrower”).
  3. Next, they say that “servicers incur funding costs on these non-interest bearing advances but do not bear credit risk.” Translation: there is no advance.  But we claim funding costs in order to get paid for pretending that servicer advances are real thus justifying fees for nonexistent services.
  4. Next, they say that “Advances are recoverable at the ‘top of the waterfall’ first from proceeds at a loan level, and then if those funds are insufficient, from cash collected from other loans in an RMBS trust.” Translation: Advances are recoverable but not by Ocwen. It never sees that “recovery.” The money is taken first from “a loan level.” which means it could be any loan. That is reinforced by the remaining words which refer to other loans in any RMBS trust. And that is why I say that there is no loss to anyone in any individual loan. It’s impossible. As long as there is money anywhere from investors, homeowners, or insurance for the certificates, everyone gets paid. So far there has always been money available not only to make all payments to everyone but also to for exceedingly high profits like what we saw with Goldman Sachs in 2009 when they forced the AIG bailout not to cover losses, but rather to cover additional profits.
  5. And lastly, they make the silly statement that “A servicer” can ‘stop advance’ if it believes that an advance will not be recoverable from the borrower.” This is silly because first of all there are no advances except from other people’s money with which Ocwen has no control. Second, because recovery from a borrower is irrelevant as described above. This statement is made solely as part of the coordinated illusion created by the stockbroker (aka investment bank) that started the scheme. It is made to reinforce the false representation that there are any loans, that there is any loan receivable account on the ledgers of anyone, and that therefore those accounts need servicing.
P.S. Note the very beginning where is says: “On January 17, 2013, Ocwen Financial Corporation (“Ocwen”) is making a presentation at a meeting among potential lenders for the proposed Senior Secured Term Loan facility. Barclays, Citigroup Global Markets Inc. and J.P. Morgan Securities LLC are acting as Joint Lead Arrangers and Joint Bookrunning Managers for the facility. Barclays Bank PLC is acting as Sole Syndication Agent and Administrative Agent for the facility. A copy of Ocwen’s slide presentation for such conference is attached as Exhibit 99.1 hereto. Such slide presentation shall not be deemed to be “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, nor shall it be deemed incorporated by reference in any filing under the Securities Act of 1933, except as shall be expressly set forth by specific reference in such filing.” This means they are trying to say, unsuccessfully that even though they’re filing it with the SEC it shouldn’t count against them if they’re lying. 
DID YOU LIKE THIS ARTICLE?

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

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

Click

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Neil F Garfield, MBA, JD, 73, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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FREE REVIEW: Don’t wait, Act NOW!

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

 

 

 

 

 

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