Our Strategic Foreclosure Defense Model

Leveraging Discovery in Judicial and Non-Judicial States Through State Specific Statutes

In the labyrinth of foreclosure litigation, the timing and strategy employed during critical stages can significantly impact the outcome. Our experience has revealed a paramount step often overlooked by real estate  homeowners, proving prejudicial in many cases. This negligence often allows foreclosure proceedings to progress unchecked until it is too late to mount a substantial defense.

Critical Stages of Foreclosure Litigation:

Foreclosure cases initiated by banks, servicers, and trusts frequently sprint towards final judgments without robust opposition. The procedural trajectory takes shape upon filing the foreclosure complaint, where supporting exhibits, affidavits, and documentary evidence are presented to establish the lender’s possession of the note and mortgage at the case’s inception.

Uncovering “Fatal Flaws” in Foreclosure Filings:

Remarkably, the sheer volume of foreclosure cases has led to a concerning trend of sloppiness among bank attorneys during complaint filings. This inadvertent negligence has unveiled a myriad of “fatal flaws” within the documents supporting their chain of title, critical for foreclosure.

Our Strategic Litigation Model:

Drawing from years of litigation experience, research, seminars, and court rulings, we’ve developed a strategic litigation model. This approach assists lawyers, law firms, and Homeowners across various jurisdictions. The model focuses on critical steps during the discovery phase, utilizing specific state statutes that provide property owners a legitimate cause of action against banks for knowingly filing false documents in public records.

Enhancing Foreclosure Defense:

This innovative strategy enhances foreclosure defense in alignment with my mentor Neil Garfield’s premise. It targets banks and their agents for filings made under false pretenses and material misrepresentations, designed to mislead the court regarding their entitlement to enforce the note or institute foreclosure.

Success Across Jurisdictions:

Recent successes in both judicial and non-judicial jurisdictions attest to the effectiveness of this aggressive litigation approach. Propounding various sets of discovery on the filing plaintiff, servicer, and agents regarding misleading instruments filed in public records has proven fruitful.

Versatile Applications:

This exclusive model offers versatile applications during pre-judgment, post-judgment, and appellate foreclosure proceedings. Successful outcomes and applications include discovery victories, motions to vacate final judgments, expert affidavits, expert testimony, objections to judicial sales, and the filing of wrongful foreclosure suits.

Civil Cause of Action:

Central to our strategy is the utilization of state-specific statutes that create a civil cause of action for property owners. This empowers them to file suits based on the falsities contained in foreclosure documents. The discovery process is crafted to trigger violations of state statutes governing the unlawful filing of false records by banks to foreclose.

Conclusion:

In the complex landscape of foreclosure defense, our strategic litigation model has emerged as a powerful tool. By focusing on critical stages, leveraging discovery, and exploiting state statutes, we’ve achieved favorable outcomes for clients across diverse jurisdictions. This innovative approach is reshaping the foreclosure defense landscape, offering a potent defense against the banks’ orchestrated filing and recording of misleading foreclosure documents.

 

Need help in assessing your case? Does your attorney need our help? Use our services to help guide you through the process early enough to avoid mistakes that can cost you your home in an illegal foreclosure action. Call our office today at 844.478.6774 to inquire if we can help. You can also submit a case statement here and get a complimentary recommendation as to your best course of action.

FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE COMMENTS ON THIS BLOG AND ELSEWHERE ARE BASED ON THE ABILITY OF A HOMEOWNER TO WIN THE CASE NOT MERELY SETTLE IT. OTHER LAWYERS HAVE STRATEGIES DIRECTED AT SETTLEMENT OR MODIFICATION. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.

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

Yes you DO need a lawyer.

 

FORECLOSURE OR RELIEF FROM STAY

In a foreclosure proceeding in a judicial foreclosure state, or a request for injunctive relief in a non-judicial foreclosure state, or in a motion for relief proceeding in a bankruptcy court, the courts are dealing with and writing about the problems very frequently.

In many if not almost all cases, the party seeking to exercise the rights of the creditor will be a servicing company. Servicing companies will be asserting the rights of their alleged principal, the note holder, which is, again, often going to be a trustee for a securitization package. The mortgage holder or beneficiary under the deed of trust will, again, very often be MERS.

Even before reaching the practical problem of debt and default, mentioned above, the moving party must show that it holds the note or (1) that it is an agent of the holder and that (2) the holder remains the holder. In addition, the owner of the note, if different from the holder, must join in the motion.

Some states, like Texas, have passed statutes that allow servicing companies to act in foreclosure proceedings as a statutorily recognized agent of the noteholder. See, e.g., Tex. Prop. Code §51.0001. However, that statute refers to the servicer as the last entity to whom the debtor has been instructed to make payments. This status is certainly open to challenge. The statute certainly provides nothing more than prima facie evidence of the ability of the servicer to act. If challenged, the servicing agent must show that the last entity to communicate instructions to the debtor is still the holder of the note. See, e.g., HSBC Bank, N.A. v. Valentin, 2l N.Y. Misc. 3d 1123(A), 2008 WL 4764816 (Table) (N.Y. Sup.), Nov. 3, 2008. In addition, such a statute does not control in federal court where Fed. R. Civ. P. 17 and 19 (and Fed. R. Bankr. P. 7017 and 7019) apply.

Now when you go to Court either because they sued you or you sued them, in addition to simply asking for a Temporary restraining Order, you are arguing for an order (based upon a separate motion filed with the court and served upon opposing counsel) that they be required to answer your very reasonable questions, as required by statute.

The likelihood is that the Judge will grant your motion and might even feel compelled to grant your petition for temporary restraining order at least until the “lender” validates the debt and validates that it is the true creditor (holder in due course). This will result in a delay of any collection or foreclosure proceedings but more importantly, from what we have seen, these interlopers simply slither away and move on to another unwary debtor.

That’s right. Just by getting them in the position where they know they have to prove their status as a creditor, they are likely to walk away. If they don’t, the time usually comes when they stop pretending they are entitled to do what they are doing.

Need help in assessing your case? Does your attorney need our help? Use our services to help guide you through the process early enough to avoid mistakes that can cost you your home in an illegal foreclosure action. Call our office today at 844.478.6774 to inquire if we can help. You can also submit a case statement here and get a complimentary recommendation as to your best course of action.

FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE COMMENTS ON THIS BLOG AND ELSEWHERE ARE BASED ON THE ABILITY OF A HOMEOWNER TO WIN THE CASE NOT MERELY SETTLE IT. OTHER LAWYERS HAVE STRATEGIES DIRECTED AT SETTLEMENT OR MODIFICATION. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.

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

Yes you DO need a lawyer.

PennyMac, Ocwen and other pretend servicers

PennyMac and others are pretending to be “servicers” but they’re not, even though they do some servicing work. They’re using Black Knight’s systems to do it.

Think of Black Knight as a big boss that controls a lot of the so-called “servicing records,” about 62% of them in the US. Because of this, companies can act like they checked the records when they really didn’t, just by logging into Black Knight’s system.

Black Knight (formally known as LPS) is pretty shady—they’ve been caught doing illegal stuff before. So when they’re involved, it makes the court suspicious of any documents that come from them. If you can’t trust the documents, you can’t just assume they’re correct, and that can mess up a foreclosure case because the people trying to take the house can’t really prove they have a right to do so.

Now, there’s this big reveal when Black Knight, who’s been caught making fake documents before, sues PennyMac. They’re mad because PennyMac used Black Knight’s super-secret system without permission. This is the same system that creates most of the records for mortgages in the US.

What this means is that a lot of the companies who say they’re servicing loans, like PennyMac and Ocwen, are not telling the truth. We’ve seen this in court. The records they bring to court don’t really come from their systems. If you read carefully and make appropriate inquiries one fact stands out: PennyMac is acting under Black Knight. PennyMac may get to make certain entries which in turn are tested by Black Knight and PennyMac may get to print out copies of reports that are produced by certain algorithms at Black Knight but PennyMac has no role in creation or maintenance of business records on Black Knight, who in turn does not do anything for trusts because it has no contracts with trusts. it has contracts with investment banks. Notice how they are keeping the agreement between PennyMac and Black Knight a secret. Also note that the agreement names Fidelity Information Services, Inc. an Arkansas corporation as the principal and PennyMac is referred to as “client”.

No one can show that Black Knight is actually supposed to be servicing for the trusts that own the mortgages. They work for the big banks, not the trusts. There’s a lot of other data not controlled by Black Knight, and it’s mostly under Chase’s control.

When you’re in court, and the so-called servicer is trying to show payment records, remember two things. First, they didn’t get those records from their own company’s system. Second, the records don’t show everything, like payments made to the creditors, which means they’re not complete. Incomplete records shouldn’t be used as evidence.

If you don’t challenge these records, the court might just accept them, and that can lead to people losing their homes when they shouldn’t.

The real players, the big banks, and Black Knight are often not mentioned, but they’re the ones who are actually in control. And as for PennyMac, they’re just working under Black Knight’s shadow, not really servicing the loans themselves.

Black Knight sued PennyMac not just to protect their own secrets but to keep the whole system under control—the system that tries to keep it unclear about who owns what loan. This lawsuit was really about keeping their power and keeping the data from spreading out, which could show how messy and confusing the ownership of mortgages really is.

Here is some useful information about Black Knight brought to us from one of our avid readers and contributors to our blog; “summer chic”. This may be useful in drafting complaints:

*Black Knight is a renamed Lenders Processing Services/DocX who forged millions of assignments which were filed in Courts around the Nations to steal homes from American families.

*Bill Foley (FNF) , owner of LPS, DocX, Black Knight, ect. continues its illegal practices as of today while deceive borrowers with bogus Title Insurances.

*Speaking about monopoly, Mr. Foley owns majority of US Title Companies. *PennyMac is a renamed Countrywide Financial

*Caliber Home Loan is a renamed Countrywide Financial

* HomeXMortgage is a renamed Fremont Loan and Investments

*Matrix Private Capital is a renamed Lehman Brothers

So, it’s all coming out—what my mentor Neil Garfield had been saying for 14 years is right there in Black Knight’s lawsuit. They’ve got this high-tech system that they keep under lock and key, and they don’t let just anyone use it. But let’s remember, the big picture is about how all this secret keeping and data control is used to maintain a system that can often be unfair to homeowners.

 

Need help in understanding how to use this type of information in your own particular foreclosure defense case? Call us at 844.478.6774 or submit a free case registration statement here for recommendations specific to your individual case.

 

 

FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE COMMENTS ON THIS BLOG AND ELSEWHERE ARE BASED ON THE ABILITY OF A HOMEOWNER TO WIN THE CASE NOT MERELY SETTLE IT. OTHER LAWYERS HAVE STRATEGIES DIRECTED AT SETTLEMENT OR MODIFICATION. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.

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

Yes you DO need a lawyer.

 

 

While we are all napping: Trading in MSRs hit $1 trillion.

According to recent reports:

MSR trading volume this year is on pace to meet or exceed last year’s robust mark, when some $1 trillion in MSRs exchanged hands — then fueled by the spike in interest rates. The trading volume of MSRs so far this year is on pace to meet or exceed last year’s robust mark, when some $1 trillion in MSRs exchanged hands — then fueled by the spike in interest rates.

So unless you are a finance nerd like me, you don’t know or care. But if you are receiving statements from companies with whom you never did business and now claim to “own your loan,” you might want to pay attention.

WHAT ARE MSRs?

MSR is an acronym for a false label which is to say Mortgage Servicing Rights. Everyone thinks that the reason they have value is that the fees received by companies who are designated by lawyers (not under oath) as “servicers” are so high that it is the best thing since sliced bread.

You are meant to believe that. It is a big lie, and it serves several hidden purposes. The first is that it implies the acronym is accurate. Yet Mortgage Servicing Rights do not relate in any way to the receipt, processing, or accounting of payments received from homeowners.

It does not relate to any mortgage lien, note, debt, or payment. The MSR only arises theoretically AFTER the deal is over and the homeowner is gone.

The second is that this has anything to do with “servicing,” as we common folk understand that term. And the third is that there are any rights relating to anything that is included within any “MSR.”

SO WHAT ARE MSRs?

An MSR is a mental construct that Wall Street used as a reference point in order to create something that other people would buy or trade based solely on market value. If there are any security analysts out there, this market value is not based on any fundamental book value, earnings, or prospects that are legally recognized.

It is based on a set that an illegal scheme will succeed and that the “Owner” of the “MSR” will get a share of the money generated by the scheme.

WHAT IS THE SCHEME?

The scheme is the unlawful forced sale of homestead property. If the foreclosure is successful, then the holders of MSRs will demand payment out of the proceeds of the sale (right, not the “creditor” that everyone was talking about).

WHY WOULD ANYONE ALLOW THAT?

Because the script for the scheme is that “servicers” are “advancing” money to “holders” of “certificates” to make up for payments that homeowners stopped. Like all shows, the script is about fantasy. It is not real. There are no such advances. Holders of certificates get their money regardless of whether any homeowner makes a payment.

They get that money from a reserve slush fund established by the underwriting and issuing investment bank, which uses money that comes from the money investors paid when they bought certificates. So part of the money that investors (holders) are getting is their own money being given back to them as “servicer advances.”

HOW COULD ANYONE BE THAT STUPID?

I don’t know the answer to that. But it is true that these facts are expressly disclosed in the prospectuses given to the managers of stable managed funds (like pension funds). Those managers know that they are not getting a piece of property or a  piece of any lien, note, or debt.

But because of the mob mentality that engulfs Wall Street every 5-10 years, they simply listen to what they are told. All of Wall Street is interconnected. So while these funds are presented to the public as discrete independent entities, they are all run by people who come and go between the revolving doors of investment banks, issuers, traders, rating agencies, insurers, and analysts.

Under the contract with investors, the holders of certificates have no rights. So when the property is sold, the proceeds go to the putative owner of MSRs, and nobody complains because everyone is getting paid — except the homeowner.

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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, 76, 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.
*
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 COMMENTS ON THIS BLOG AND ELSEWHERE ARE BASED ON THE ABILITY OF A HOMEOWNER TO WIN THE CASE NOT MERELY SETTLE IT. OTHER LAWYERS HAVE STRATEGIES DIRECTED AT SETTLEMENT OR MODIFICATION. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.

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

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

Please visit www.lendinglies.com for more information.

The irrefutable logic at the foundation of all successful foreclosure defense narratives

The mortgage lien is designed to protect against financial loss — not to promote financial gain. If Wall Street wants to protect the financial gains it created from its crazy scheme using weapons of mass financial destruction, then the least it should do is share a little of that with homeowners, consumers, the government, and investors. 
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I continually get the same question, mostly because neither the homeowner nor the “investigators” understand anything about being a licensed, educated, experienced investment banker, lawyer, or accountant. If they were any of those, they would not ask the question.
*
The latest question was whether the discharge in bankruptcy helps.
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The discharge in bankruptcy does not interfere with the ability to enforce the lien if the lien is valid — and the enforcer is a creditor who maintains an unpaid loan account receivable due from the homeowner on the ledgers of that creditor. I think the lien is invalid because it did not secure an underlying obligation created by the original transaction.
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The original transaction consisted of an incentive payment paid to or on behalf of the homeowner in exchange for the issuance of documents that created the illusion of a loan transaction.
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Thereafter, no party treated the transaction as a loan, nor did any party claim ownership of an unpaid loan account on their accounting ledgers. But documents were filed in support of fraudulent claims for foreclosure remedies that appeared to be facially valid, raising the presumption that the loan account existed.
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I think the problem is that people can’t wrap their heads around one idea. The transaction they signed into was not a loan. If there is no lender, creditor or loan account, there cannot be a loan that is recognized in our legal system, nor should there be.
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If there is no loan, no loan account, nor any creditor sitting with an accounting ledger on which they report the acquisition of an obligation due from you, you don’t owe the money to them. If no such creditor exists, you don’t owe the money at all.
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The mortgage lien is designed to protect against financial loss — not to promote financial gain. If Wall Street wants to protect the financial gains it created from its crazy scheme using weapons of mass financial destruction, then the least it should do is share a little of that with homeowners, consumers, the government, and investors.
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We are so trained to believe that we are not entitled to profit from Wall Street schemes designed to defraud us that we refuse to accept the profit even when it is sitting on a golden plate in front of us.
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If homeowners were to withhold payments (that are not legally due anyway) en masse, it would force Wall Street to do the right thing: reform all the transactions to reflect the economic realities, to wit: share the bounty with the keystone participants — homeowners who issue the documents that form the foundation of the sale of securities that are unrelated to the illusion of any sale of an underlying obligation.

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To be sure, there would need to be substantial changes in the law governing consent and compensation, in addition to the existing laws requiring full disclosure of all financial transactions producing revenue from the stroke of a homeowner’s pen. That can be done if we want to do it. Until then, homeowners will continue to win their cases in small numbers without truly understanding why or how they won.
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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.
*
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. 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.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
CLICK HERE TO ORDER CASE ANALYSIS 
*

FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE COMMENTS ON THIS BLOG AND ELSEWHERE ARE BASED ON THE ABILITY OF A HOMEOWNER TO WIN THE CASE NOT MERELY SETTLE IT. OTHER LAWYERS HAVE STRATEGIES DIRECTED AT SETTLEMENT OR MODIFICATION. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.

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

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

Please visit www.lendinglies.com for more information.

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.

*

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.
*
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. 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.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
CLICK HERE TO ORDER CASE ANALYSIS 
*

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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Homeowners need to understand that they are investors, not borrowers.

In nearly all cases that the amount of money paid to a “prior lender” is entirely or mostly fictional in all cases of refinancing and nearly all cases in purchase money mortgages. As long as the same underlying investment bank is the same for both the Buyer and Seller or the same for both the new “Lender” and the old “lender.”
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But in cases where the Seller gets money (equity) at least some money is actually produced for closing. And as long as the refinancing produces cash to the homeowner, some money is actually produced at closing. So for example, if the Seller nets $50,000 from the closing statement, that is what the Seller receives and the Seller does not care where it came from. If the homeowner receives $50,000, that is what the homeowner receives and the homeowner does not care where it came from — because the homeowner does not know that he or she has been surreptitiously recruited into a scam plan for the sale of unregulated securities.
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BUT remember that each new “closing” produces a brand new securitization chain. In plain language, if the investment bank is selling securities worth $12 for each dollar that is reportedly paid in “closings,” then each closing represents another $12. So if you have an alleged purchase money mortgage plus 3 refinancing transactions, the total generated could be as high as $48 for each dollar reported as paid in all the closings. Those “reports” of payment are also entirely fictional insomuch as they include money that was NOT paid.
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So a $200,000 mortgage represents the base transaction in a $10 million scheme. This is why so many people on Wall Street received bonuses equal to three times their previous annual earnings. It is also how convicted felons who had $10 per hour jobs earned upwards of $1 million per year. It was a heist. Most of that money went to investment banks who then scattered the funds all over the world. They are still sitting on trillions of dollars.
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If homeowners were only allowed the minimum “introductory fee” (common on Wall Street that would mean that the homeowner was entitled to receive a $200,000 payment in exchange for issuing virtual notes and virtual mortgages and the homeowner’s consent to treat them as real.
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What makes me burn is the idea that the players can get back the money they paid to homeowners without any consideration for their role in an undisclosed transaction that can no longer be unwound. In such instances, it is up to a court to “reform” the transaction to reflect the economic realities. But NOBODY is doing that. I think there is a strong case for that. The investment banks don’t want to do that because they refuse to share with lowly homeowners.  And the courts are both brainwashed and somewhat corrupt because they are accepting “instructions” about mortgage cases.
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But the courts are NOT corrupt in the sense that most people keep saying. And that is why I have won so many cases, and other lawyers have done the same. They all start out with bias but they CAN be turned.

Why I Think Homeowners Are Entitled to Receive a Second Payment From Investment Banks

All homeowners who think they have a mortgage loan have received one payment at a “closing” — or a payment allegedly made on their behalf. For reasons explained elsewhere on this blog, such payments on their behalf are mostly fictional where the underlying investment bank is the same “director” of funds.
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The significance is that a second tree springs up in which the scheme described below is duplicated — with little or no cost to the investment banks. Each time the myth of “refinancing” is employed a new securitization tree springs up with dozens if not hundreds of branches.
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The purpose of this article is to explain my view that homeowners are entitled to share in the revenues and profits generated by securitization schemes — and why I think that now is the time to demand it in litigation.
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This claim has been filed early in the course of the mortgage meltdown. In one case the Federal judge held onto it for 14 months before finally ruling that the complaint should be dismissed. It led to my deposition being taken for 6 straight days, 9am-5PM as an expert witness. I was having heart problems at that time and they were clearly trying to wear me down. I did not relent. I did get some stents shortly afterward. 16 banks and 16 law firms each took their turn beating me up.
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I think we have reached a different era in which these claims should be pressed again. We know a lot more than we did in 2007-2008. Subsequent events proved the basic points, to wit: that the paper trail did not match up to reality, which is why the paper trail consists entirely of false, fabricated, forged, backdated, and robosigned documents.
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1. Homeowners enter into transactions that appear to be loans to purchase or refinance property at market value. Even if the transactions were actual loans, the determination of market value was legally the responsibility of the lender under TILA. Market value never increased, but prices were grossly inflated because Wall Street flooded the market with money that appeared to be cheap.
  • By lowering the apparent monthly cost, they made the actual price appear to be irrelevant — which is part of the essential element of deception.
  • The common homeowner relied upon the appraisals that were required by investment banks to be inflated in order to complete the loan transaction or the illusion of a loan transaction.
  • The only way securities brokerage firms (investment banks) could sell more and more unregulated securities is if more and more deals were signed by unsuspecting homeowners.
  • Thus the transaction enabled the homeowner to purchase or refinance a home under the mistaken belief that the home had a market value in excess of the principal amount of the “loan.”
  • All such “loans” were bad, from a market perspective.
  • It meant that the homeowners took an immediate loss because market prices were stratospherically higher than market values (i.e., indicating a high known probability that prices would fall precipitously).
  • It also meant that if there was a lender, it also was taking an immediate loss because it could not report the value of the loan at face value since the loan principal was far in excess of the value of the collateral.
  • In addition, all such loans were bad because the impact of this phenomenon was to create an immediate incentive to default on the scheduled “loan” payments apparently due from homeowners.
  • The obvious conclusion is that for everyone except the homeowner, this was not a loan transaction.
2. The transaction was not a loan. If it was a loan, nobody would have been party to it. There was no lending intent. there was no profit incentive to engage in lending under the circumstances described above. Like the “new economy” of the 1990s, the entire housing market consisted of the myth of a new force that would permanently push housing prices ever higher.
  • So what homeowners are missing out on is claiming a share of a pie that almost everyone else got paid.
  • The paper (document) deal basically has the homeowner execute a document allowing for a virtual creditor without a loan account balance in order to create, issue, and sell unregulated securities, regardless of what the homeowner intended and regardless of what the homeowner believed.
  • Because of the undisclosed structure of the deal, the “seller” was able to recover all money paid to the homeowner contemporaneously with the “closing” of the paper transaction. This is true even though nobody made credit entries to a nonexistent loan account.
  • Neither the loan account nor any of its components (underlying obligation, legal debt, note or mortgage) was ever sold in a financial transaction in the real world.
  • This accounts for the ability of the investment banks to conduct multiple virtual sales of hedge instruments or interests in the performance data for the virtual loan.
  • This enabled the investment bank to convert the usual 15% underwriting fee to at least a 1200% profit plus whatever they could get from homeowners in monthly payments and foreclosures.
  • With exception of the homeowner, every person and every business entity that was recruited to participate in the selling scheme to homeowners got paid extra exorbitant fees for their participation.
  • Those were fees that would never have been paid and could never have been paid but for the absurd profits from the so-called securitization scheme.
  • The homeowner provided a service that is undeniable: the homeowner accepted the concept of a virtual creditor even though no such allowance existed under any laws, rules or regulations thus enabling these fees and “trading profits” to be generated without any offsetting entry to any nonexistent loan account.
  • If homeowners had been given the opportunity to negotiate terms for their acceptance of a transaction in which there was no lender, no compliance with TILA, and no stake by a lender in the success of the transaction, homeowners would have had the opportunity to bargain for better terms and competition in the industry would have resulted in better terms (a share of the pie) being offered.
  • We already know that incentives were offered to pay closing costs, the first few months of the “loan” etc. Homeowners occupied a special place in the securitization scheme.
  • Without the cooperation of homeowners, there was no securitization scheme. Other players could have been replaced but not homeowners.
  • So their share of the pie would have been substantial if they had the opportunity (i.e., if there was disclosure) to bargain and better terms would have been offered if there was disclosure and transparency as required by law.
  • In my opinion, there are two benchmarks that should be used to determine how much the homeowner should have been paid: (1) the amount the homeowner received at closing, making such payment a fee and (2) 15% of the total revenue generated from the scheme in e exchange for the issuance of the paper documents (note and mortgage).
    • These two benchmarks overlap. But what it basically comes down to is that each homeowner should have received the benefit of the real bargain: around 15% of the total revenue from that deal which means that in a typical $200,000 loan, with at least $2.4 million generated in fees and trading profits, the homeowner should have received at least $360,000.
    • The $200,000 “loan” might survive upon proper reformation reflecting all the elements of the real deal, but there is still an extra $160,000 that was due to the homeowner at the time of signing.
    • Right now that $360,000 is being shared with dozens of people and companies involved in the securitization scheme and dozens of companies involved in virtual foreclosure schemes — i.e., foreclosures in which lawyers acting under litigation immunity argue or imply that a loan account exists and that they represent the party who owns it.
    • The only reason why homeowners are excluded from that is that it would reduce the size of bonuses received by the existing players, most of whom are doing nothing other than lending their name to a virtual scheme.
    • I said in 2007  that homeowners did not really owe any money to anyone from these paper transactions and that in fact, it was the reverse — homeowners are the ones who are owed money by the investment banks, plus interest from the date of closing.

I think the failure of homeowners to aggressively pursue this line of practical and legal reasoning is largely responsible for the continued drain (anchor) on the U.S. economy, which is still suffering from the unfortunate decisions of multiple administrations to save and increase the profits of investment banks at the cost to and detriment of common homeowners.

“Black Knight”: Banks Are Peddling A False National Narrative of Declining Foreclosures

I’m busy today so I can’t publish my usual long analytical article. But one thing that is constantly staring at me is the fact that the national press and news releases are in basic conflict with local media. And the fact that local media is going out of business isn’t helping.

Black Knight is a company whose size and reputation is entirely based upon preparation, presentation, and use of false documents and information that were forged, robosigned, and back-dated. Those were the days when it was called Lenders Processing Services in which DOCX was used to produce the false documents. Lorraine Browne, President of DOCX took one for the team and was the only person in the entire 2008 crash who went to jail. Neither DOCX nor other divisions of Lender Processing Systems were ever retired.

In fact, Black Knight is now expanded in some sense because it operates as the front for lockbox and electronic payments made in the name of companies claiming to be servicers. Concealed from homeowners is the fact that those payments are never actually received by the company claiming to be a servicer nor disbursed by that company to anyone claiming to be a creditor.

It is all a ruse. There is no creditor because there is no loan account receivable (LAR). There is no loan account receivable because the investment banks are selling what would have been the LAR multiple times without crediting any LAR — hence, no claim, no creditor. But because all of that is confusing, consumers continue to pay on nonexistent accounts that do not in fact exist and were never intended to be maintained. They pay and they are victims of “enforcement” because of a false national narrative about securitization.

Here is the simple truth: there is no securitization of debt. And all claims regarding eh existence of the LAR. and authority to enforce, administer to collect money for the LAR are false. That is not an opinion. It is a fact under current law that nobody can legally collect on a debt that does not exist — even if the named debtor believes the false claim that the LAR exists.

The “Payment History” is almost always accepted as a substitute for a copy of the actual loan account receivable —which until the last 25 years has ALWAYS been a basic staple of anyone who wanted to get a foreclosure judgment or sale — even if it was uncontested. If you didn’t produce that, along with an affidavit or testimony from an officer of the actual creditor or lender, you could not get the judgment or the sale. I personally witnessed myself and many other lawyers going to court with part of the foreclosure file missing and being told that the motion for summary judgment was denied — without any appearance or opposition from the homeowner. (I didn’t always represent the consumer).

But is the consortium of financial technology companies (FINTECH) including Black Knight that produces a report that is labeled as a “Payment History” because it is the FINTECH companies working for the investment banks that process that data. The report is pure hearsay that is not admissible in court but because homeowners and lawyers fail to test the report, they fail to reveal the fact that the “servicer” never was party to any transaction that it would then enter as data on its own bank accounts, accounting ledgers and books of record. None of that happened.

So the report is admitted as an exception to the hearsay rule thus allowing companies like Black Knight to carry water for the investment banks who want to collect money from payments of homeowners or on the sale of their homes so they can pay out bonuses without any attempt to account for the proceeds as a reduction in any loan account.

So it is in that position that Black Knight became a central repository of data about any transactions that are falsely defined in the national narrative as mortgage loans. That data is at best questionable and obviously false when tested in litigation. And because Black Knight functions almost exclusively at the behest and is subject to the influence and control of investment banks who are book-running securitization schemes, it reports what they tell Black Knight to report.

So you get articles like this:

https://nationalmortgageprofessional.com/news/black-knight-foreclosure-activity-nears-pre-pandemic-low

But lawyers like myself have our phones ringing off the hook now that foreclosures are spiking. And local media outlets that are still in existence, are accurately reporting the sharp spikes in new foreclosures, new evictions, and declarations of default. Both political parties are idiots, believing that foreclosure is no longer an issue. Tell that to the people who are losing their homes to fake creditors who are merely seeking profit. It’s another case of politicians being completely out of touch with realities of events on the ground — because they are listening to sources of information that come ONLY from Wall Street.

To its credit, the Biden Administration is attempting through the new legislation to preserve local media which tends to report facts and actual events rather than the current trend in national media to posit possibilities and then spend all their time analyzing what those possibilities might mean if they ever happened. Most investigative journalism is dead, which is why things have gone so wrong in this country.

Fact check: current events are not talking heads in boxes on TV. They’re real things happening to real people. That is “news.” The rest is pure speculation for purposes of producing revenues from the entertainment value of that speculation. It is now the national pastime to accept such speculation as news. It isn’t.

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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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Magna Bank, N.A. as Trustee for registered holders of certificates issued under the name of the Macandcheese Acquisition Trust, Inc. an inactive corporation, for a nonexistent trust, series 2022-XL-1

So a friend of mine left her phone in my car. Here is what I wrote to her:

Thank you for leaving your phone in my possession, which as you know is 9/10s of the law. That means that even though you paid for it and you received ownership from the seller, I can now claim it as my property. So by possessing the phone I was able to issue and sell several certificates based upon the possible rental income I would receive from you for access to the phone you already own.

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I told the buyers you had scheduled payments of $100 per month, even though you had neitehr signed nor even acknoweldged any agreeemtn to make the scheduled payments on the nonexistent obligaiton.
I told the investors that I would make quarterly payments to them equal to 5% of their investments in perpetuity. I will be able to make those payments as long as I am able to continue selling certificates either on your deal or other deals with other ignorant consumers. If you don’t make the payment I will have the option of withholding part or all of the payments I promised to the investors. If you do make payments on this nonexistent obligation, that will make it easier for me to pay bonuses to everyone involved in this scheme.
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So far I have received $2500 from these investors and my salesmen are just getting started. I am returning the phone to you in exchange for a signed receipt that refers to a document that is referenced as describing the scheduled payments. If you don’t make the payment I will repossess the phone and get a judgment against you for the balance due under the lease, which is $15,000. If you wish to modify this obligation you will need to admit to a default and we might then offer a “modification” in which you agree that the deal is valid.

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Servicing of this nonexistent account has been assigned to financial technology (FINTECH) companies who will communicate with you using the name of Joe’s Screw and Die Company (JSDC). The FINTECH companies will assert aqht JSDC is your new servicer ven thouhg it performs no functions.
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The FINTECH companies will publish and send to account statements and payment histories under the letterhead of JSDC. Your telephone communications and correspondence will be forwarded to a call center or correspondence center operated by Black Knight Rising, Inc. who works for me.
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If you ask any questions or if a legal action is initiated to collect on this nonexistent obligation the creditor will be named as Magna Bank, N.A. as Trustee for registered holders of certificates issued under the name of the Macandcheese Acquisition Trust, Inc. an inactive corporation, for a nonexistent trust, series 2022-XL-1.
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And no, I will not reveal the identity of the holders of those certificates nor the content of the certificates. Not ever. But I will instruct lawyers to imply — but not directly state — that the action is brought on behalf of investors or a trust and that it doesn’t make any difference whihc one.
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Despite the fact that you never signed any document that memorializes any agreement by you to these specific arrangements I assure you I can and will enforce the nonexistent obligation against you — because I can.
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Reports concerning your credit status will be sent under cover of the name JSDC to the Credit Reporting Agencies. My name won’t be mentioned so if you ever prove that the report was false, it will be difficult if not impossible for you to attribute liability to me. You will get a judgment against JSDC which is a thinly capitalized entity designed to go bankrupt in the event that many people like you start winning in court.
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Failure to make scheduled payments on this nonexistent obligation will result in increased expenses incurred by you for use of credit in the future in addition to loss of your phone, and a judgment against you that is presumptively valid once it is entered in any court record in a court of competent jurisdiction.
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Should you choose to contest this claim you will most likely win — but only if you are willing to spend considerable time, money and energy in doing so, while negative credit reports are issued against you. Thus even though the claim is false and based upon illegal and possibly criminal premises, you might as well pay.
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Although you might consider this arrangement to be theft, based upon coercion and intimidation, we call it free-market capitalism. Thanks to tens of millions of consumers just like you I now have a private jet, and palatial estates in 14 countries. I am also a very large contributor to philanthropic causes, and a prolofic collector of mastperpiece artworks — which gives me great credibility in the press, even though I am a common thief.
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On a final note, you might ask whether you could or should be a participant in this scheme receiving some of the prodigious revenue from sales of certificates or even some revenue from other consumers like you. While we recognize that the entire scheme is dependent upon the existence of your phone and the receipt you sign to get it back, the answer is no, we will not share in the revenue.
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Just to be clear, I am not your creditor. I neither own nor maintain any accounting record on which data entries are made at or near the time of any financial transction with you and neither does JSDC. However because anyone can sue for anything, I will continue to assert nonexistent authority to collect money from you.
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As further clarification, when I have generated more than the stated lease balance of $15,000 you will neither be notified of that fact nor relieved of any pressure to continue paying. You will not be able to prove that the revenues      generated exceeded any amount asserted as your obligation because there is no such record keeping track of that.
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And in an abundance of caution let me clearly state that you have no debt or obligation owed to me or anyone else under this arrangement. Any payment you make is purely voluntary and without any impediment to your ability to access professional advice which you probably won’t use. What is wonderful for me is that even if you did go to a lawyer or other professional (except perhaps a diligent accountant) they most likely would not understand this deal even if they read this email. Such professionals might ask you questions like “well, you got the phone didn’t you?”
P.S. My friend won’t return my calls now.

How Could This Not Be a Loan?

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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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

Click

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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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 TO 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)
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.

For those exiting “Forbearance” or Moratoriums — Be Careful What You Write!

After a few extensions, the mortgage payment pause officially ended — or will be ending soon — for 1.2 million out of an estimated 1.7 million loans that remained in forbearance as of August, according to CoreLogic.

Wall Street is busy churning out even more disinformation than before because they are trying to avoid a mass revolution from consumers. The latest message is that some homeowners are struggling but “market conditions” will prevent a new tidal wave of foreclosures. The object is clearly to distract anyone in government from paying attention to this monster.

see https://www.bankrate.com/mortgages/cares-act-forbearance-runs-out/

So they’re using this opportunity to (a) pretend there is no crisis and (b) engulf consumers in another round of deceit.

Wall Street wants you to “stay in touch with your lenders” because they want you to communicate with companies who are pretending to be lenders or servicers. They are neither lenders nor servicers. They’re not “Servicers” if “servicer” means a company that receives or disburses proceeds of scheduled payments. And they are not lenders if “lender” means someone who paid money to originate or acquire ownership of your underlying obligation.

Nearly every consumer transaction that offers a payment schedule is actually concealed securities scheme, Which means that for the apparent “lender” there is no loan. there is only payment to or on behalf of the consumer to inspire them to “sign” documents that launch or help launch a securities scheme that enables the participants in that scheme to get paid many times that amount of what the consumer is deceived into believing is a simple loan.

The bottom line of all that is there is nobody who maintains the “ledger” that is in the mind of the consumer. There is no loan account. There is no company that reduced its cash account and added it to its receivable account.

So maybe securitization is a true innovation. But as it stands it is illegal and unenforceable. If you were pursuing the same companies for payment you can bet that they would do what I am suggesting — refuse payment unless you could document proof of payment and the present existence of a loan or other debt.

That documentation must be from the records of the party named as the claimant — not from some company claiming to be a servicer. If the designated named claimant is not a creditor to whom the debt is actually owed then the self-serving unsigned claims of servicing authority are empty statements designed to deceive consumers, homeowners, and students to make payments that are being converted from debt to profit.

Every effort to bring pressure on a consumer to pay it is basically Suing For Profit. Even if the consumer pays, it won’t reduce any loan account because no such account exists — except the illusion of the account on the books of the “servicer” who is not serving anyone other than the investment banks on Wall Street and who handles no money.

So here are the general rules of all consumer transactions that end up with some scheduled payment:

  • Do not address the company claiming servicing rights as the servicer. Instead, challenge who they are and what they’re doing. You never made a deal with that company. Send a Debt Validation Letter and in the case of a mortgage, a Qualified Written Request. If you do admit they are a servicer you are reinforcing the illusion of a receivable account maintained by that company on behalf of some other entity who never actually shows up on anything. No officer or director of any REMIC trustee or other designated named creditor ever signs anything. The creditor is merely there as a hood ornament.
  • Do not admit you owe any money to the servicer or anyone else. You don’t know what happened to that account so stop pretending that you do know.
  • Do not admit you are delinquent or in default or that either the lawyer or servicer can declare you find default. Note that you will never receive a direct statement from the named designated creditor saying you are in default. They have simply rented out their name to maintain the illusion that the creditor is a financial isntiutiotion. It isn’t.
  • Do not concede that the payment history is accurate or is a legal or acceptable substitute for an account receivable on the books of a creditor. It isn’t.
  • But DO realize that every time you make life difficult for this vast game of suing for profit, you are helping not only yourself but millions of other consumers.
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

Click

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

 

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

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

FREE REVIEW: Don’t wait, Act NOW!

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

 

 

 

 

 

TONIGHT! Why Lawyers Should Want Foreclosure Defense Cases and What They Are Missing $$$

Thursdays LIVE! Click into the Neil Garfield Show

Tonight’s Show Hosted by Neil Garfield, Esq.

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

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This show is devoted to convincing the lawyers who will listen that they are missing out on something very profitable and important. Representing homeowners faced with foreclosure papers can and does present an opportunity for large paydays, consistent victories in court, and playing a part in changing the trajectory of home finance in this country and around the world.

In 2008 I presented a seminar that provided the essentials of foreclosure defense as we knew them at that time. We repeated it several times in different parts of the country. In that seminar, I also presented a business plan for lawyers to do it. It was the hub and spoke plan that allowed homeowners to pay monthly based upon the known length of time that any foreclosure would last.  About a dozen lawyers followed my instructions and made millions of dollars.

It’s time for a new push.

Repurchase agreements only advance the myth that loans were purchased in the first place.

Investors would do much better if they stopped litigating the duty to enforce repurchase agreements. The repurchase agreement is void because there was no purchase. There are better claims to make that are more easily proven.

Homeowner litigants need to have more courage and attack the existence and ownership of the underlying alleged obligation much more explicitly and directly. They will be pleasantly surprised. While they will never get an admission that the whole affair is a scam, they will be able to raise the inference and thus limit the evidence in court that would ordinarily be allowed to prove the existence, ownership, and enforceability of what the claimant says is an unpaid debt. The key to winning any defense narrative is establishing insufficiency of the evidence.

As I stated in 2006 on TV, radio and articles published in many news outlets, both homeowners and investors should get on the same page. This was a sham. Investors probably can become creditors if they ask the court for a declaration of rights and maybe even appointment of a receiver. The debtors would be the Wall Street firms and possibly even homeowners — although not to the full extent of the purported obligation to repay the compensation paid to homeowners for assuming concealed risks.

see https://www.nationalmortgagenews.com/opinion/will-cmbs-litigation-be-the-new-rmbs-litigation

This is how the legal system became twisted beyond recognition in dealing with claims arising from investors, homeowners, and GSEs. There was a faulty and totally erroneous assumption (in most cases) that there was ANYTHING to buy or sell.

Wall Street banks have successfully relied upon complexity to force everyone else to rely on a single source for explanation of the falsely proclaimed “securitization” process. That single source is Wall Street. As long as we are only getting our information from the perpetrators of this financial terrorism we will be paralyzed.

Now this is spilling over to commercial transactions where some securitization actually happened. As between banks it was called “syndication” of loans, but when they get outside investors to take a piece then it is called “securitization” because each investor gets some paper document proclaiming them to be the owner of part of the loan debt, note, and mortgage.

That never happened with residential loans. No investor ever purchased a share of any loan. No Wall Street securities brokerage firm (aka “investment bank”) ever established, maintained or sold any homeowner obligation. But the Wall Street firms did pretend to sell the note and mortgage, albeit without any conveyance of the alleged underlying obligation.

A paper transfer of an asset is evidence of transfer, but it is not the actual transfer. So homeowners can ask for proof of payment of value for the underlying obligation (see Article 9 §203 UCC) to rebut the appearance of a transfer. A transfer of a mortgage without transfer of the underlying obligation is a legal nullity in all 50 states, as it should be.

And unless Wall Street wants to tell us that such transfers were gifts, then those “purchases” were never completed because there was no payment of value one exchange for a conveyance of ownership of the alleged underlying obligation. This is one of the finer points that Wall Street is exploiting. They may point to the movement of money or value — but that movement did not result in a transaction in which an owner of the obligation (i.e.e someone who paid for it) was paid value for the obligation and executed a transfer document “for value received.”

Of course, the underlying obligation had been extinguished contemporaneously with the origination or acquisition of the obligation — because nobody wanted to be left holding the bag. Any entry on the accounting ledger of any entity that established the obligation as an asset purchased for value would make that entity liable for violations of lending laws. And nobody wanted to suffer a real loss if the homeowner failed to make scheduled payments to pay off a nonexistent debt.

So nobody wanted to own any debt from homeowners. And they didn’t need to own anything. The securities scheme was not securitization of any homeowner debt. It was a much larger scheme that used homeowner transactions only as an outside reference point for data reporting in the sole discretion of Wall Street firms who were the bookrunners in each scheme.

The securities were bets — not evidence of ownership of anything. The sale and trading of such securities, combined with insurance and hedge contracts produced so much money that the homeowner transaction became irrelevant excepts as a reference point for data. So everyone got paid in full and then some. Nobody needed to own any homeowner obligation and the fact that they didn’t own the obligation would not stop them from pursuing enforcement despite the lack of ownership.

In order to really sell an asset, you must own it. In order to own it you must pay for it. In order to transfer ownership of the asset, you must transfer the actual asset not just a piece of paper that talks about the asset. It is possible that some payment of value exchanged hands in which there was a reference to both residential and commercial loans. But in residential transactions with homeowners, it is mostly NOT possible that any underlying obligation was transferred (even if it appears to have been “sold”).

So “repurchase agreements” for bad loans were in fact a misnomer and perpetuated the myth that securitization of residential loans actually occurred. Litigation over rights that do not exist is a farce. But that is exactly where the courts are stuck. This is not a failing of the courts. It is the failure of litigants to bring the true facts to the court’s attention.

This failure arises from the lack of understanding of the process that Wall Street is calling “securitization.”

Litigants need to have more courage and attack the existence and ownership of the underlying alleged obligation much more explicitly and directly. They will be pleasantly surprised. While they will never get an admission that the whole affair is a scam, they will be able to raise the inference and thus limit the evidence in court that would ordinarily be allowed to prove the existence, ownership, and enforceability of what the claimant says is an unpaid debt. The key to winning any defense narrative is establishing the insufficiency of the evidence.

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

FREE REVIEW: Don’t wait, Act NOW!

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

 

How and Why to Litigate Foreclosure and Eviction Defenses

Wall Street Transactions with Homeowners Are Not Loans

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

Payments By Homeowners Do Not Reduce Loan Accounts

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

Once the transaction is entered as a reference data point for securitization it no longer exists in form or substance.

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

Success in Litigation Depends Upon Litigation Skills: FOCUS

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

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

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

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

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

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

In lay language, the question is “who do I ask?” What is the name of the company that claims ownership of my underlying obligation resulting from payment of value?
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My opinion is that they don’t say it because nobody does. And nobody says it because there is no person or business entity that has any confirmable entry on its ledgers showing payment of value in exchange for a conveyance of ownership of the underlying obligation.
****
This is not a technical objection. It is completely and utterly substantive. Without payment for the obligation, nobody can claim a loss. They can’t claim a loss because there is no loss. Without a loss there can be no remedy. 
****
The securitization players offered securities to investors, the proceeds of such sales going to the investment bank who in turn distributed the money to the other players including “borrowers.” Without those securities, there would have been no transaction. But as a result of issuing and selling those securities — and then derivatives of those securities—  the revenue from the sale of securities was in excess of 12  times the amount of the homeowner transaction. {Don’t ask me to justify that — ask ANYONE in the industry if that is not true}
**
Nobody wanted to be a lender who would then be accountable for violations of lending laws.  So they made sure there was no lender. We are all going down the same rabbit hole when we refer to the homeowner transaction as a loan. It was a payment to get the homeowner to execute documents that were labeled as loan documents — a payment that had to be returned, leaving the homeowner with no compensation for his/her role in generating so much revenue.
**
In fact when you factor in payments labeled as “interest” the homeowner receives negative compensation. Viewed from that perspective the homeowner is paying for his own execution.
****

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

****
If it was a loan, then there would be a lender with a risk of loss and who was accountable for compliance with lending laws — particularly those requiring disclosure of compensation and revenue arising from the execution of the documents.
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If it was a loan, then there would be a lender who was a stakeholder — i.e., someone who retained risk of loss and intent for the transaction to be performed and successful.
*
Instead, homeowners got no lender and not even a clue as to who they did business with nor the true extent of revenue and profits generated from what was in reality, simply a securities scheme with no substantive characteristics of a loan.
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Instead, the homeowner was left with a nonlender who had no role in underwriting the viability of the loan contrary to the express requirements of TILA. In fact, and again contrary to the express requirements of TILA, the homeowner was left with nobody who had any stake in the viability or performance of any loan.
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To add insult to injury, the securitization players had substantial financial incentives to steer borrowers into nonviable loans against which the players bet would fail — this producing even more profits.
**
So tell me again why this is a loan. And tell me why the compensation that the securitization players chose to give to the homeowner should not be retained by the homeowner. And while you are doing that, tell me why the consideration for drafting the homeowner into a concealed securitization scheme should not be expanded.
**
But don’t tell me you can foreclose and evict a homeowner just to get back the only consideration he/she ever received from you. That’s not capitalism. It is a fraud.
PRACTICE HINT: At the very start be confrontative. When opposing counsel says “Your Honor, this is a standard foreclosure,” you should interrupt and object saying that the face of the complaint or notice shows that this is not a standard foreclosure and it may not be a foreclosure at all if they can’t produce a creditor. Drill in the defense narrative wherever you can create the opportunity. 
Remember that you are not just looking for securitization language. You are also looking for securitization players. If the foreclosure is on behalf of Citi, PennyMac or BofA, those are securitization players. Just because they don’t refer to securitization does not mean that they are holding a ledger showing their payment for the debt and maintenance of a current asset account against which they are claiming a loss. If you don’t understand what that means, go talk to a CPA.
*
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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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.

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

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

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

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

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

And yet here is what is about to happen:

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

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

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

More Details on VendorScape, CoreLogic and Black Knight

Hat tip to “Summer chione”

So it is apparent that the banks are responding to discoveries about how orders are transmitted to lawyers, “servicers”, realtors etc.. While it is all the same playbook, they merely change the name of the characters. So internally the name VendorScape might still be used but externally, to the public, they are showing different names and even showing multiple names for the same “service”.

But is always the same, to wit: a central repository of data that has been robotically entered to support misrepresentations of investment banks that massage the data, control the reports, and initiate administration, collection and enforcement under the letterhead of “subservicers” who have almost nothing to do and are merely being kept alive to throw under the bus when this scheme explodes.

For those familiar with the game of Chess, think of the following entities as all being pawns whose existence is to provide a barrier to the encroachment of government or borrowers in litigation — and who can and will be sacrificed when the game explodes.

  1. Foreclosure law firms (“mills”)
  2. “Servicers”
  3. Trustee of REMIC Trust
  4. Trustee on Deed of trust
  5. MERS
  6. Companies that provide “default services”
  7. Realtors
  8. Property  Managers
  9. REMIC  trusts: remember that back in early 2000’s, the same trusts that are being named as claimants today were denied as having any existence or relevance. It was only after failure of naming a servicer or MERS that they fell back on naming the non functional trustee of a nonexistent trust as the claimant.
  10. Every other company that is visible to the investors and homeowners.

And keep in mind that the claims of a “boarding Process” or detailed audit of accounts when the name of one subservicer is changed to something else are totally and completely bogus. There is no transfer much less boarding of accounts. the fabricated accounts are always maintained at the central repository.

The argument over “business records” is sleight of hand distraction. There are no business records. Go do your research. You will see that nothing the banks are producing are qualified business records, muchless exceptions to the hearsay rule. 

It is or at least was universal custom and practice that before accepting  an engagement, lawyers, servicers and realtors needed to have an agreement in writing with their employer. In the wholly unique area of foreclosures, sales, REO and remittances this practice has been turned on its head.

As I have repeatedly said on these pages, lawyers in a foreclosure mill have no idea who hired them. They don’t know the identity of their client. They will and do say that their client is some “subservicer” (e.g. Ocwen), they file lawsuits and documents proclaiming their representation of some bank (e.g. Deutsche) with whom they have (a) no contact and (b) no retainer Agreement.

This is because all that Deutsche agreed to was the use of its name to give the foreclosure an institutional flavor. It is labelled as a trustee but it possesses zero powers of any party that could be legally described as a trustee. It has no fiduciary duty to any beneficiaries nor any right to even inquire about the business affairs of the trust — which we know now (with certainty) do not even exist.

So there is no reason for the foreclosure mill to have an agreement with Deutsche because (a) Deutsche has not agreed to be a real party in interest and (b) Deutsche has no ownership, right, title or interest in any loan — either on tis own behalf or as representative of either a nonexistent or inchoate (sleeping) trust with no assets or business or the owners of non certificated certificates (i.e., digital only). Indeed the relationship between Deutsche and the holders of certificates is that of creditor (the investors) and debtor (Deutsche acting as the business name only of an investment bank who issued the certificates).

So the lawyers in the foreclosure mill are misrepresenting its authority to represent. In fact it has no authority to represent the “trustee” bank.

So the banks have come up with a circular argument that is still erroneously used and believed in court: that because the subservicer (e.g. Ocwen) is the nominal client — albeit without any contact prior to the electronic instructions received by the foreclosure mill — and because the subservicer claims to be acting for either the trustee, teht rust or the holders of certificates, that eh lawyers can claim to be representing the bank, as trustee. In a word, that is not true.

So the foreclosure mill is falsely claiming that its client is the named “trustee” who has no power for a “trust” which has no assets or business on behalf of certificate holders who own no right, title or interest to any payments, debt, note or mortgage executed by any “borrower.”

Instructions from a third party with no right, title or interest that the lawyer should claim  representation rights for yet another party who has no knowledge, right, title or interest is a legal nullity. That means that, in the legal world, (like transfer of mortgage  rights without transfer for the underlying debt), there is nothing that any court is legally able to recognize and any attempt to do so would be ultra vires once the facts are known to the court.

The trick is to present it to the court in such a manner that it is unavoidable. And the best way to do that is through aggressive discovery strategies. the second best way is through the use of well planned timely objections at trial.

All of this is done, contrary to law and prior custom and practice to cover up the fact that all such foreclosures are for profit ventures.

That is, the goal is not paydown of any loan account, because no such account exists on the books of any creditor.

And that is hiding the fact that the origination or acquisition of the loan was completed with zero intent for anyone to become a lender or creditor and therefore subject to rules, regulations and laws governing lending and servicing practices.

They didn’t need to be a lender or creditor because they were being paid in full from the sales of securities and thus writing off the homeowner transaction. Bottom Line: There was no lending intent by the originator or acquirer of the loan. When the cycle was complete, the investment bank owned nothing but still controlled everything.

And the way they controlled everything was by hiring intermediaries who would have plausible deniability because they were using images and records that were automatically generated and produced based upon algorithms written by human hands — programs designed to facilitate foreclosure rather than report the truth.

So let’s be clear. Here is the process. The lawyer, realtor or subservicer knows nothing about the loan until it is time to foreclose. All activity that is conducted under its name is initiated by CoreLogic using the VendorScape system.

So when a lawyer, for example, comes to work, he sits down in front of a computer and gets a message that he doesn’t know came from CoreLogic under the direction of Black KNight who is acting under the strict control of the investment banks. There are no paper documents. The message on the screen says initiate foreclosure work on John Jones in the name of Deutsche Bank as trustee for the CWABS Trust 2006-1 on behalf of the certificateholders of CWABS Trust 2006-1 series pass through certificates.

Contrary to the rules of law and ethical and disciplinary rules governing lawyers, the lawyer does no due diligence to discover the nature his agreement with the naemd claimant, no research on whether the claim is valid, and requires no confirmation ledgers showing establishment of ownership of the debt and financial loss arising from cessation of payments. He/she sends notice of delinquency, notice of default and initiates foreclosure without ever seeing or even hearing about a retainer agreement with Deutsche whom he supposedly represents.

He/she has no knowledge regarding the status or ownership of the loan account. ZERO. By not knowing he/she avoids liability for lying to the court. And not knowing also provides at least a weak foundation for invoking litigation privilege for false representations in court, behind which the investment banks, Black Knight, CoreLogic et al hide. The same plausible deniability doctrine is relied upon by CoreLogic and Black Knight. They will all say that they thought the loan account was real.

But they all knew that if the loan accounts were real, the notes would not have been destroyed, the control over the loan accounts would have stayed close to the investment banks and compliance with lending and servicing laws would have been much tighter — starting with disclosure to investors that their money was being used to justify a nonexistent trading profit for the investment bank, and disclosure to homeowners that they were signing on for an inflated appraisal, immediate loss of equity, and likely foreclosure because after the origination, the only real money to be made off the loan was through foreclosure.

And both investors and borrowers were prevented, through the artful practice of deceit and concealment, from bargaining for appropriate incentives and compensation for assuming gargantuan risks they know nothing about.

This is like cancer and it is continuing. Nobody would suggest that we keep selling crops that were infected with ebola or which contained some tar substance that reliably and consistently produced cancer. The argument that a company or industry might collapse would not fly because in the end we value human life more than allowing companies to profit off of death and destruction. And the argument that allowing the judicial creation of virtual creditors who can enforce non existent debt accounts is going to save the financial system is just as pernicious — and erroneous.

Wall Street banks are merely protecting their profits. Don’t blame them for doing that. It is up to government and the public to stop it and arrive at something other than the false binary choice of either forcing people out of their homes or allowing a “windfall” to homeowners against the interest of all other honest people who make their mortgage payments. The real solution lies in reformation by judicial doctrine or through new legislation — but until that is completed, there should be no foreclosures allowed. Until it is determined how much concealed risk was piled on investors and borrowers, they should not be stuck with contracts or agreements that sealed their doom through concealment of material facts.

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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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