TRID may be another easy win for Homeowners

since loss mitigation is a statutory condition precedent to foreclosure, there is a failure to comply with the condition that requires loss mitigation exhaustion before pursuing foreclosure, the steamrolling of homeowners is not just wrong, it is also a breach of statutory duty for which the homeowner can seek injunctive relief, damages, and attorney fees.

TILA-RESPA integrated disclosures (TRID) is a series of guidelines that dictate what information mortgage lenders need to provide to borrowers and when they must provide it. TRID rules also regulate what fees lenders can charge and how these fees can change as the mortgage matures.

But it also contains the requirements for review and processing of loss-mitigation applications, resulting in charging excess fees without explanation and failure to credit surplus proceeds from the foreclosure sale.

Once you accept that you might be wrong, then you can move on to whether the forces aligned against you are also wrong. But first, you must discard the errors of your own ideas about the transaction in which you obtained money. It is at that point that several things emerge. And Homeowners are starting to pick fights with “servicers” rather than waiting for them to arrive and others are going back and contesting foreclosure sales for breach of statutory duties.

START HERE:

  • When you apply for loss mitigation you are tacitly admitting that the address you are sending your application to belongs to parties who are entitled to receive it. This is almost always untrue.
  • By addressing the application to the designated company whose name is used by FINTECH as a “servicer” you are admitting that they have the power to consider the loss mitigation application. They don’t.
  • And to put a finer point on it they don’t consider it. Nobody does.
  • This means that reports back to the homeowner are false. It was not considered because neither the named “servicer” nor FINTECH had any power to consider it nor did they do so.

So if you want to use the TRID strategy, you must first accept their authority, submit the required documents and then sue them for deceit and breach of statutory duty. You might also want to demand the return of everything you submitted since they were not entitled to receive it.

I also think that the Administrative Strategy (QWR+DVL+CFPB complaint+AG Complaint —see links below) is an essential condition precedent for the homeowner to be able to sue. It should be timed such that the homeowner can honestly say that they accepted the representation of authority in good faith and then concluded afterward that no such authority existed.

This opens the door to a simple lawsuit under TRID, which is really a breach of TILA. And since loss mitigation is a statutory condition precedent to foreclosure, there is a failure to comply with the condition that requires loss mitigation exhaustion before pursuing foreclosure, the steamrolling of homeowners is not just wrong, it is also a breach of statutory duty for which the homeowner can seek injunctive relief, damages, and attorney fees.

The basis of the lawsuit is simple.

  • The homeowner received an invitation to participate in a loss mitigation program from someone who had neither the power nor intention to consider it.
  • Subsequent reports issued under the letterhead of the designated company that was an alleged servicer were erroneous and false.
  • No consideration was given to loss mitigation.
  • The “servicer” possesses no record of seeking or obtaining instructions from any creditor nor any company or person that possesses the authority to act for a creditor who maintains an unpaid loan account due from the homeowner.
  • Therefore foreclosure should not be allowed or should not have been allowed.

In order to pursue this strategy with gusto, you need to accept the fact that the entire securitization infrastructure might be a ruse. It is. You don’t need to prove that it is a ruse. You only need to kneecap those who rely on that infrastructure to obtain windfall profits.

The only way to defeat you is if they get you to admit that the parties with whom you’re corresponding are legally authorized to represent a real creditor. If you reject that and make them provide corroborating evidence they’ll fail because such evidence does not exist.

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

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

Neil F Garfield, MBA, JD, 75, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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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)
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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 12 years or more. In addition, although currently rare, it can also result in your homestead being free and clear of any mortgage lien that you contested. (No Guarantee).

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

Please visit www.lendinglies.com for more information.

Homeowners Alert! You Are Corresponding With Machines, Not People.

Most people do not spend their time keeping up with advances in technology. When it comes to their front door they know it has arrived.

For about 12 years I have been telling people that there is a “high probability” that no human is making any decision and no human is doing anything with respect to their alleged loan account. The only exceptions are (1) a lawyer appearing in court and (2) a robowitness appearing at trial knowing only the content of a prepared script.

When homeowners write to the company that has been named “servicer” of a receivable account due from the homeowner they normally think that someone reads what they wrote. And the response, if any, appears to have been written by somebody.

Recent advances in Artificial Intelligence, particularly with language have now stepped over the line from “highly probable” to complete certainty. Nothing you write to them is read by a human being and nothing written back to you is written by any human being or even approved by the human being. The advantage, when you are running the largest economic scam in human history, is that no person can be accused of doing anything because, in fact, they didn’t.

People ask me  questions like “Why are they doing this?” Embedded in the question is a belief that some human intelligence is calling the shots. No, it is all machine-driven. No investigation or assessment is ever made with respect to forbearance, modification, workouts, or anything else. The declaration of default you receive is not a decision made by any human representing any company.

And when you get statements or other pieces of correspondence, and the body of the message is under a letterhead like, for example, Ocwen, that is not the entity who sent it and it is not the entity on whose behalf the message was sent.

To get more information I strongly recommend you read a recent article in the New York Times. Here is the link: https://www.nytimes.com/2022/04/15/magazine/ai-language.html?referringSource=articleShare

 

FCRA Might Be Fertile Ground for Individual and Class Actions Especially under CFPB Rules

if the CRC does not perform the investigation or performs it incorrectly, you can sue them.

In a world where the ability to access credit matters more than the ability to access savings, nothing could be more important than these provisions under the Fair Credit Reporting Act (FCRA).

Anyone who read the book or saw the film “The Firm” knows that it is often a boring statute that can take down the worst offenders. It was mail fraud in that story. For more information ask the descendants of Al Capone who died in prison of syphilis after being convicted of income tax evasion. Both bad guys were guilty of murder and mayhem. But what put them away was overbilling clients and evasion of income tax liability and payments respectively.

The Consumer Financial Protection Board is doing a deep dive into both debt collection and reporting under the FCRA (Fair Credit Reporting Act). Apparently, someone woke up to the fact that reporting “agencies” (none of them are governmental) are indeed required to perform both due diligence and an investigation when the “debtor” challenges a negative credit report.

I know. It is boring. But you might get more interested when you consider the importance of these provisions. Or to put a finer point on it, you SHOULD be more interested. Most of the value of your home could end up as equity — i.e., the value you can trade on or borrow.

The investment banks need to make sure that programs like the one I created (AMGAR) never get off the ground. That means making it nearly impossible for any legitimate lender to issue a commitment to refinance the so-called loan with the usual customary standard condition — that it gets the priority position for its lien on the subject property securing the new loan transaction with the homeowner. 

This means that the old “lender” or “successor lender” must actually assert and provide confirmation that it is actually the owner of the receivable allegedly due from the homeowner. Up until now, that standard requirement has been ignored and the marketplace has been coercing homeowners to accept title insurance as a substitute for title. Hint: They’re not the same thing. 

The way this “policy” has been enforced is to prevent the homeowner from seeking hard money or other lenders. There is no better way than negative credit reporting. A bad credit report blocks almost any source of funds for the usual homeowner. So the inability of the “old creditor” to confirm the existence of the loan account never becomes an issue.

But there is a mechanism by which homeowners can defeat this strategy that supports false claims for administration, collection, and enforcement of claims and payments from homeowners. The mechanism is contained in 15 U.S.C. § 1681i(a)(1)(A).

see cfpb_supervisory-highlights_issue-26_2022-04

Here is the quote from the latest CFPB bulletin. Remember that the fact that it is boring does not mean that it won’t provide you with tangible benefits that could change the whole trajectory of your life.

2.2.1 CRC duty to conduct reasonable reinvestigation of disputed information The FCRA requires that a CRC must conduct a reasonable reinvestigation of disputed information to determine if the disputed information is inaccurate whenever the completeness or accuracy of any item of information contained in a consumer’s file is disputed by the consumer and the consumer notifies the CRC directly, or indirectly through a reseller, of such dispute.8 In several reviews of CRCs, examiners found that CRCs failed to conduct reasonable investigations of disputes in multiple ways. Examiners also found that rather than resolving disputes consistent with the investigation conducted by the furnisher, which in many instances would have required correcting inaccurate derogatory information and replacing it with accurate positive information, CRCs simply deleted thousands of disputed tradelines. Examiners also found that CRCs failed to conduct reasonable dispute investigations when they failed to review and consider all relevant information submitted by the consumer in support of their disputes. After identification of these issues, CRCs were directed to cease violating the FCRA’s dispute investigation requirements. [e.s.]

In practice what this means for consumers of all types who partake of the twisted financial products offered under cover of false labels is that if you submit a contest to the credit reporting company (CRC) with an appropriate summary and exhibits and state the nature of the contest and the reasons for it, the CRC must conduct a deliberate investigation to determine whether or not it is true.

And if the CRC does not perform the investigation or performs it incorrectly, you can sue them.

If the “furnisher” (usually a company that has been designated as a “Servicer”) is unable to establish the accuracy of the report the furnisher must withdraw it or the CRC must take it down. That action alone lends corroboration to the defense narrative in foreclosure.

The allegation can then be made that the putative “servicer” and “Creditor” are unable to corroborate their claims for rights to administer, collect and enforce the alleged underlying obligation — despite being contractually bound to do so (FCRA, and bound by the statutory duty to do so (FCRA, FDCOA, RESPA).

So how boring is it when you consider that the place of “creditor” and the fact of “loan account” has been eliminated by Wall Street investment banking strategies? Do you still feel like paying them anyway? Or would you like to know how they are really making money, regardless of whether you pay or not?

PRACTICE HINT: THIS IS ONE EXAMPLE OF WHY HOMEOWNERS SHOULD OBTAIN A FORENSIC INVESTIGATION REPORT AS SOON AS POSSIBLE. BEING “CURRENT” IS BOTH IRRELEVANT AND POTENTIALLY DAMAGING IF YOU ARE PAYING ON A NON-EXISTING DEBT FOR THE BENEFIT OF A NONEXISTENT CREDITOR.

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

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

Neil F Garfield, MBA, JD, 75, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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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)
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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 12 years or more. In addition, although currently rare, it can also result in your homestead being free and clear of any mortgage lien that you contested. (No Guarantee).

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

Please visit www.lendinglies.com for more information.

“Court Bias” is an Unproductive Rabbit Hole

Practically every email and inquiry I get contains complaints about court bias. It is as though people think that there are humans on this planet who have no opinion or bias. They point out examples of being steamrolled, ignored or otherwise wiped out in foreclosure litigation and they blame the opposing lawyers for being evil (which they might be) and they blame the judge for being biased (which is probably true in most cases).

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Here is my answer to all of that: Bias is not a sin. Nor is it insurmountable.

Substantively you are correct. Procedurally you are incorrect. You fail to acknowledge that every case, whether civil pr criminal, starts off with bias. Everyone in the courtroom has it. The Judge, the jury, the bailiff, and even the court reporter.

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There is no case in which humans are involved where there is no bias. To project failure on the basis of bias is like giving up one’s life because of the presence of air. Having bias and even acting upon it is not a crime under the constitution or any statute or common law precedent.
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We have all heard about cases in which an obviously guilty defendant was “acquitted.” And then people all get in an uproar about that and how the system failed to work properly.
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That is because they don’t understand constitutional and statutory law. A verdict of “not guilty” does not mean “innocent.” It means that the prosecution failed to prove their case beyond reasonable doubt — not that the defendant was innocent. That is our legal system.
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How does a defendant get a “not guilty” verdict? The lawyer attacks the predicates for the prima facie case against his client. If the search is bad the case is thrown out because our constitutional right to privacy was violated by law enforcement. that is how we keep them in line. The lawyer does not seek to prove his client is innocent because he need not do that to win. The lawyer must only undermine the factual or legal premise of the case filed against his client.
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So applying this to foreclosure cases, what you may be missing is the fact that homeowners win all the time. And the way they win is by undermining the case filed against the homeowner. They never win by proving that the opposition is composed of all crooks and liars. They win because they timely and properly bring up issues that the judge must decide in a manner in which the court is required to make a decision between the bias of the court and the procedure required to preserve the constitutional integrity of the legal system.
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I don’t deny that there are judges that will rule in favor of bias. But nearly all the examples of judges ruling by bias consist of decisions that I would have made myself if I was sitting on the bench. The judge is there to call balls and strikes and not to pick winners.
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If the homeowner brings up issues long after the appropriate time and place to do it, the homeowner has waived those defensive strategies in most cases. For example, you can’t refer to “the loan” and the “the servicer” and the “account” and then argue that they don’t exist. Here is another common example: objecting to hearsay after a string of 12 questions asked and answered. When the first question calling for a hearsay answer was put to a witness, THAT was the time to object. If not the objection is waived. Case over.

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So the moral of the story is that the criminal defense lawyer does not seek to prove his client is innocent. He or she seeks to undermine the case filed against the defendant. The foreclosure defense lawyer who wins recognized simply that it is not the job of the lawyer to prove that the claim does not exist. It is the job of the foreclosure defense attorney to undermine the ability of the opposition to prove a case against the homeowner.

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

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 
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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 12 years or more. In addition, although currently rare, it can also result in your homestead being free and clear of any mortgage lien that you contested. (No Guarantee).

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

Please visit www.lendinglies.com for more information.

Why the CFPB Announcement is Very Important

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

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

 

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

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

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

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

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

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

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Those records are the only thing that the dark side has to establish the existence of an unpaid debt and a creditor. U.S. Bank, N.A. for example does not receive documents or money out of the cash flow created by transactions with homeowners. The allegation, assertion, or claim has always been that it had “constructive possession” because the company that was named as the “servicer” had received the original documents.
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White will be revealed and highlighted by the policy announced by the CFPB, is that the named servicer does not receive any money or any documents. Instead, there are fabricated documents from which one might assume or presume that money and documents had flowed to the company that was named as a “Servicer.”
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Even if such companies, like Ocwen for example, came into actual possession of an original note (unlikely because notes are routinely destroyed contemporaneously with closing), it would mean nothing because they don’t have the right to enforce. People tend to forget the second part of the lawyers seeking Foreclosure use a variety of tactics to paper over that fatal deficiency.
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Wall Street investment banks invented a circuitous route to get around this fatal defect. They use documents that are labeled as “power of attorney” or they use the pooling and servicing agreement.
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The named plaintiff or beneficiary in a foreclosure is usually named as a bank not on its own behalf but as trustee of a named trust which may or may not exist. But neither the bank nor the trust maintains any accounting records reflecting ownership of assets consisting of obligations of homeowners.
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In plain language, this means that the Foreclosure mill is making allegations, assertions and argument regarding the existence and identity of a creditor owning the alleged obligation of the homeowner, but there is no testimony, exhibit or any evidence that those assertions are true. Pressed further, the inevitable conclusion is that they are not true.
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Therefore the appointment of a company that is self-described as a “servicer” is irrelevant to any case in which a party is seeking Foreclosure. In plain language, the agent has no more power than the principal.
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The announcement by the CFPB has Biden’s fingerprints all over it. His style is very underplayed and incremental.
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You could easily read the announcement as simply the intention to examine the business of companies that are described as FINTECH. The CFPB is saying that they are not simply technology companies.
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The CFPB is saying they are servicers — this puts the CFPB in direct conflict with all claims made on behalf of companies who are named as “servicers” but who perform no servicing functions in connection with the receipt, processing and accounting, and distribution of proceeds to any creditor.
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When you think about what that might mean and what we already know, the outcome of that investigation and monitoring will be an administrative finding that the real servicer has not been disclosed, and that the companies who are named as servicers have no relevant business records, because they never received any payments nor made any distributions.
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There is no possibility that the investigation will not lead to a question about how the FINTECH servicers are working and for whom they are doing this work.
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This is a pivotal point. If the real servicers are simply contractual agents of the designated companies who are named as services, it would strengthen the position of the investment banks. But I know that the real servicers (FINTECH) are working for the investment banks, and not the bank named as trustee for a REMIC trust — nor the company named as “servicer.”
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This will all lead to the inevitable conclusion that no company is actually performing servicing in the conventional sense. None of them are collecting money from homeowners and then distributing the payments to creditors. That is because of one fatal flaw and the business plan of the Wall Street securities firms. They eliminated the role of “creditor” or “successor lender” but they kept the labels.

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==================
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 DONATENeil F Garfield, MBA, JD, 75, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
*
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 12 years or more. In addition, although currently rare, it can also result in your homestead being free and clear of any mortgage lien that you contested. (No Guarantee).

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

Please visit www.lendinglies.com for more information.

How Bias Works Against Justice in Foreclosure Litigation

If one takes a neutral view there is an inescapable and undeniable conclusion: millions of homes have been forced to sale, depriving the owners of property and money, and causing untold damage to families and careers without the court knowing to a reasonable degree of certainty that the loan account even exists.

Scott Staffne and I have been in discussion about court bias. He is advancing the cause in one pending case.

The basic thrust of the argument is that judges have their retirement and their personal investments at stake in every case that questions the reality, integrity, or assumptions arising from a financial innovation (MBS) about which judges know absolutely nothing. In place of knowledge, they use assumptions and presumptions arising from fabricated documents containing false information that are forged by robosigning.

Even the promissory notes are routinely destroyed and then re-created using the miracles of modern technology. Allowance for such actions means that anyone with a computer and printer can fabricate the base documents for any claim. That is the direction of the courts today.

It turns out that in certain states the retirement of judges is funded and guaranteed with taxpayer money so there are at least some judges, theoretically, who have no MBS bias.

So here is what I wrote to Scott regarding this entire mess:

I see what you are saying about the taxpayer guarantee — but knowing as many judges as I do (personally), I wonder how many of them understand that or even think about it. In short, I wonder if they are thinking the way we are saying even though the MBS issue doesn’t affect them — or maybe it does in their personal investments.

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I think it might be a task too large to prove the points I raised. But the reverse is possible and directly in line with what you are asserting in your brief. The neutral point of view would be that there must be a justiciable issue before the court which is universally defined as two or more parties in conflict about legal rights.
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In order for the justiciable issue to be presented in foreclosure cases, there should be a pleading requirement — given all the excesses and abuses that are revealed in settlements with Federal and state AGs — that
(1) requires the complaint to be signed under oath not by a servicer but by an officer of the bank that supposedly is a trustee of an alleged trust that is the plaintiff or beneficiary under a deed of trust,
(2) contains specific language warrantees title to the underlying obligation, legal debt, note, and mortgage,
(3) asserts an economic loss caused by its failure to receive payments from the homeowner that it had otherwise been receiving and
(4) acknowledging a specific servicing agreement, which should be attached, naming the currently named servicer to act and to specify the acts that are both authorized and performed.
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I also think that a certification from the company that is claimed to be a”servicer” that it received and disbursed money from the homeowner would end all foreclosure litigation. they don’t and their “records are merely an aggregation of data from third parties including unknown third parties.
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These FINTECH companies, effective yesterday are now being viewed as the real servicers by the CFPB. They are the ones receiving payments and they are the ones recording the receipt. So the Payment history” offered by the fake “servicer” is not a business record in the sense that it is not a record of business done or even managed by the “servicer.” it is inadmissible hearsay. And that means no case.
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But when homeowners raise any of those issues, usually inartfully, they are swept aside in a manner that is completely inconsistent with the customs and practice of judges thirty years ago — i.e., scrutinizing the document and asking the right questions even if the homeowner did not show up.
*
A neutral judge would allow the homeowner to demand proof that the loan account exists and that the named plaintiff or beneficiary is the owner of it by virtue of having paid value for it. A neutral judge would automatically insist that the named plaintiff or beneficiary appear at least once by testimony or affidavit.
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A neutral judge keeps the burden of proof squarely on the claimant until the prima facie case is made. A neutral judge would not apply presumptions of fact drawn from documents whose source is a series of companies that admittedly fabricated millions of such documents containing false information — at least not without some corroboration (i.e., proof of payment for the loan account).
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Instead, the courts have swung the other way. And the use of nonjudicial foreclosure is an extreme example of what happens even in judicial foreclosures. Contrary to constitutional requirements, the homeowner must first produce evidence of a negative the nonexistence of the loan account — without any access to the records, data, and ledgers that would prove that.
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If one takes a neutral view there is an inescapable and undeniable conclusion: millions of homes have been forced to sale, depriving the owners of property and money, and causing untold damage to families and careers without the court knowing to a reasonable degree of certainty that the loan account even exists.
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I admit that many homeowners have cooked their own goose by referring to the existence of the loan account and accepting the status of the alleged servicer. But many people did not. And in any event the court should be careful before the property is allowed to be foreclosed.
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The courts have taken the view that it doesn’t;t matter whether the proceeds of foreclosure are paid to or on behalf of the named plaintiff or beneficiary. what matters only is if the homeowner owes the money. And the homeowner MUST owe the money because they signed loan papers including a promissory note.
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Thus was borne the court doctrine contrary to the statute and the constitution that says that anyone can enforce a claim as long as someone else doesn’t also make the same claim during the same time period. It doesn’t matter if the claim is valid, meritorious or just a scheme to generate more cash.
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They have swung that way, only in the niche of foreclosures, because of their fear and bias regarding a financial innovation to raise capital about which the judges know nothing. They assume from the outset that the claim is real. And that is the sole basis for failure to enforce discovery and pleading requirements. Whether conscious or unconscious, judges are rewriting the statutory laws and the state and federal constitutions.
==================
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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 12 years or more. In addition, although currently rare, it can also result in your homestead being free and clear of any mortgage lien that you contested. (No Guarantee).

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

Please visit www.lendinglies.com for more information.

Interpleader Might Be Useful in Revealing the Absence of Any Unpaid Loan Account

One of my constant comment contributors recently informed me and others that she was trying a new tack. She writes “My attorneys are making a demand that any refi money be placed with the Court and that the judge decides who he wants to pay.”

This is very close to an Interpleader action which is virtually unknown amongst laypeople and many lawyers. In an interpleader action, a party says to the court I have this asset and there are two conflicting claims to get it from me. In its purest form, the Interpleader says that he doesn’t care who gets the asset. In a more advanced form, the interpleader might say that he does have an interest in making sure that the asset goes to A rather than B.

The point of all this is that a homeowner could turn the tables on companies who are masquerading as “servicers” (basically all companies who claim to be servicers). [NOTE: YOUR SERVICER IS A FINTECH COMPANY NOT THE COMPANY THAT IS CLAIMING TO BE A SERVICER).

The homeowner’s contract is NOT with the company claiming to be a servicer. The homeowner’s contract was with an alleged lender and then the successor to the originally named “lender” or pretender lender. This point is almost always missed by both homeowners and their lawyers. It leads the homeowner into a black hole.

In order for a company to become a successor to the “lender”, the new company must pay value for ownership of the underlying obligation, the legal debt, the note, and the mortgage (note that each of those has its own set of rules). In the world of securitization, no such sale ever occurs.

And that is why I have been declaring for 16 years that with respect to homeowner obligations, there is no securitization. No sale=no securitization. And that means there is no succession. No succession means no creditor even if money exchanged hands for reasons other than the purchase of the underlying obligation. 

So people are trying shortcuts to quickly end the claim for administration, collection, and enforcement of the promise to make installment payments issued by the homeowner. If it was that easy the entire securitization myth would have exploded 20 years ago.

Attempting to put the refi proceeds into escrow rather than pay the “servicer” can ONLY work if you have a funded lender who conditions payment on the absolute assurance that the new lender will be getting first priority position as mortgagee or beneficiary under a deed of trust.

The typical answer is that there is a title insurance policy to protect against any problems. But the new lender replies that it refuses to fund the deal unless it receives both insurable and actual title free from any possibility of litigation over the issue of the validity or priority over the lien. The new lender position is best expressed in a letter of commitment. This is the AMGAR strategy that I have promoted since 2008. It works but only for people who are willing and able to invest money in the strategy.

If it is a situation in which there is a real new loan from an institutional lender, they will never go along with the plan to highlight these conditions because they are all heavily invested in the securitization illusion. While there is the possibility that a quick surprise suit against the escrow agent could theoretically work contemporaneously with the “closing” it is doubtful that this strategy would work in the real world.

That is a strategy that has been tried in a few iterations and failed.

But it is still possible it could work. It is called Interpleader. But in order for it to work, you need a disinterested third party willing to do it. I think that the disinterested party ought to be a receiver for the asset.

  • The homeowner pays the receiver the monthly payments along with instructions that say to pay the creditor if there is one and if there is an unpaid loan account.
  • The receiver asks the current servicer if it is an authorized agent of a creditor (and to please give the name and contact information so the receiver can confirm it) — i.e., someone who owns an unpaid loan account due from the homeowner.
  • The “servicer” demands payment. The receiver says he. she or it cannot pay until the conditions are met: a creditor with ownership of the loan account. There is substantial law going back centuries that nobody is under an obligation to make payments to a party who is not owed the money.
  • The “servicer” serves notice of default.
  • The receiver files an interpleader action that says he/she it is holding money to pay to the creditor, but the original creditor is not in the chain anymore and there is a new party, a self-proclaimed “servicer”, who refuses to provide adequate assurance that it is the authorized agent of a creditor.
  • The interpleader deposits the money into the court registry and exits. It remains a party until the judges’ order is to pay this one or that one.
Then both sides must plead to show how they are entitled to the money. The homeowner says he/she either wants the money back and he/she wants to terminate the receivership because there is no known creditor and there is no unpaid loan account on the books of any person or entity.
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The “servicer” (who is now a party, possibly along with a Bank that is a trustee for an alleged REMIC trust) is stuck with the same script in a different context, where it will most likely fail.
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The plus side of this strategy is that it allows for discovery demands but it shifts the focus from whether the homeowner paid anything to whether there is a creditor who is entitled to collect.
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WARNING TO ALL HOMEOWNERS: WITH THE HUGE SPIKE IN FORECLOSURES AND EVICTIONS HAS COME THE TORRENT OF SCAMS. DO NOT PAY ANY MONEY UPFRONT TO ANYONE OTHER THAN A LAWYER AND DON’T DO THAT UNLESS YOU KNOW THE LAWYER’S PLAN TO HELP YOU. DO NOT EXECUTE ANY DEEDS OR INSTITUTE ANY LEGAL PROCEEDINGS OR ANY STRATEGY THAT PROMISES AN EARLY END TO THE ISSUES. THE END MAY BE SATISFACTORY IF PERFORMED CORRECTLY BUT IT WON’T BE QUICK.
*
IF THE PLAN OR STRATEGY COMES FROM SOMEONE WHO IS NOT A LAWYER IT IS PROBABLY EITHER WRONG OR A SCAM.
====================
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 DONATENeil F Garfield, MBA, JD, 75, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
*
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 12 years or more. In addition, although currently rare, it can also result in your homestead being free and clear of any mortgage lien that you contested. (No Guarantee).

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

Please visit www.lendinglies.com for more information.

Living Truth: CFPB Moving Against FINTECH Companies

It’s time to give a thumbs up to the agency that has up till now befuddled homeowners. The absence of regulation of nonbank FINTECH companies has been a giant loophole through which wealth was converted from homeowners to investment banks.

I am pleasantly surprised by an announcement from the CFPB that will start monitoring and investigating these companies like Black Knight, Fiserv and CoreLogic — i.e., the REAL servicers who are involved in the collection of money that nobody is entitled to receive.

Here is part of the CFPB announcement:

WASHINGTON, D.C. – The Consumer Financial Protection Bureau (CFPB) announced that it is invoking a largely unused legal provision to examine nonbank financial companies that pose risks to consumers. The CFPB believes that utilizing this dormant authority will help protect consumers and level the playing field between banks and nonbanks. The CFPB is also seeking public comments on a procedural rule to make this process more transparent.

Under the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, the CFPB has authority to use traditional law enforcement to stop companies from engaging in conduct that pose risk to consumers; this can involve adversarial litigation. However, the law also gives the CFPB authority to conduct supervisory examinations to review the books and records of regulated entities. CFPB examiners typically provide a report to entities with problems that need to be addressed, and responsible institutions typically take prompt corrective action.

For decades before the Dodd-Frank Act, only banks and credit unions were subject to federal supervision. But after the 2008 financial crisis in which nonbank companies played a pivotal role, Congress tasked the CFPB with supervising certain nonbanks, in addition to large depository institutions with more than $10 billion in assets, and their service providers. Nonbanks do not have a bank, thrift, or credit union charter; many today operate nationally and brand themselves as “fintechs.”

 

When the homeowners loses in the trial court what are the options?

Foreclosure litigation is a very special type of case. Normal rules of limitation and basic requirements of proof have been softened in favor of giving lawyers the opportunity of saying they represent a Bank that is the trustee of a trust. Those lawyers don’t need to assert that the trust owns any underlying obligation owed by the homeowner to the named Bank as trustee. It is all implied. And they never are required to show proof of authority to represent the bank. In fact, they have no contact with the bank.
*
The virtually unanimous court doctrine in foreclosure cases is that the courts can be used as a shield against liability for illegal conduct. So this creates several different layers of litigation depending upon when the foreclosure defense lawyer picks up the case.
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An appeal is always an attractive opportunity for the layperson but lawyers know that (a) the appeal won’t stop the sale of the property unless the court issues a stay and (b) the odds of achieving any result that could be categorized as successful in the appeal of a foreclosure action are about 200:1 at best.
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Your next question is like a double-edged sword. On the one hand, the courts have treated the subject of wrongful foreclosure as not maturing until the Foreclosure case is complete. On the other hand, there is court doctrine that presumes the validity of all preceding orders arising from prior litigation — but only if they were favorable to the foreclosure mills.
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This comes partly from the doctrine of finality which is an important doctrine from the standpoint of bringing disputes to a close and partly from the mistaken widespread belief that disallowing foreclosures would destroy the sanctity of contracts that courts are sworn to uphold.
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So that is why I am always conflicted when guiding people into or out of litigation. Yes, I believe that all these foreclosures are scams and that the opposition would be unable to prove the basic elements of their claim if put to the test. But starting out — particularly when the case ruling is against the homeowner —- is daunting.
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Yet I believe that anyone with the resources to attack this scam at the trial level will most likely (3:1 odds) win. The odds get worse after an actual judgment is entered against the homeowner. But they get better when you add newly named parties discovered by forensic investigations. And the odds become very good when you get to the point where you are pressing for orders compelling responses to discovery demands.
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I have only seen a few cases in which homeowners were able to do it on their own and those were cases from 10-12 years ago. I’m speaking here in terms of actually getting a judgment or settlement that consists of real value to the homeowner — reducing or eliminating the debt, payment of damages and attorney fees, court costs etc.
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The successful cases (i.e., cases in which the homeowner received substantial relief or value) have the following attributes:
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  • They are buried and even scrubbed under both confidentiality (NDA) agreements and court-ordered expunging of the record
  • The homeowner was represented by aggressive trial counsel who had internalized the belief that the case was winnable.
  • Discovery demands were made and pursued.
  • Motion practice was aggressively employed.
  • The opposition had been shoved into a corner where they had no answer that wouldn’t put them in jail or under administrative procedures removing their charter or license.
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So my short answer is that homeowners who start early, perhaps before any foreclosure is initiated, are the ones most likely to get a favorable outcome.
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After the case is over and the judgment is against the homeowner, the odds are daunting. But a well-conceived complaint that is specific in its allegations that form the basis of a cause of action upon which relief could be granted is likely to survive a motion to dismiss or demurrer. Once you get past that milestone your chances are vastly improved.
*
There are some early strategies and tactics that I outlined on my show 2 weeks ago. But it is too early to say if they will be successful. I have started using them and we’ll see what happens.
===============================
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 DONATENeil F Garfield, MBA, JD, 75, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
*
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 12 years or more. In addition, although currently rare, it can also result in your homestead being free and clear of any mortgage lien that you contested. (No Guarantee).

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

Please visit www.lendinglies.com for more information.

JURISDICTIONAL CHALLENGES MUST NOT BE AIMED AT THE MERITS OF THE CLAIM

“Jurisdiction” is a term used to define whether or not the court has any authority to hear the case. Filing a bogus claim DOES invoke the jurisdiction of the court as long as it complies with the basic rules of court.

Just because you call it a jurisdictional challenge doesn’t make it a jurisdictional challenge. The jurisdiction of the court is based upon several factors, each of which must be challenged in a specific and orderly way. You are citing evidentiary things that can only mean the judge would at best reserve a ruling until the evidence is in.

JURISDICTIONAL CHALLENGES MUST NOT BE AIMED AT THE MERITS OF THE CLAIM
  1. The challenge must arise from the face of what is written in the complaint or in the exhibits. Or, it must arise from the presumptions in nonjudicial states based upon the recorded documentation.
    1. The usual XYZ Bank NA as trustee for the ABCDE Trust Series 2006-BC6 on behalf of the holders of the certificate series ABCDE Trust Series 2006-BC6 presents exactly that opportunity. XYZ Bank is not submitting itself to the jurisdiction of the court and neither is the putative trust even if it exists. (Both are named as acting on behalf of unidentified certificate holders).
      1. We know that because regardless of how many entities are framed in the style of the case, it is all on behalf of unidentified holders of certificates who have not been named. So you have no named Plaintiff submitting themselves to the jurisdiction of the court and therefore no case in controversy.
        1. A free-style test of this is easy: in the event that the homeowner wins and fees and costs are leveled against the claimant, who is responsible for paying those fees and costs.? It isn’t XYZ Bank. It might be the trust if it is properly identified and it certainly is not the certificate holders who have never been named.
        2. But how do you levy the judgment against anyone? Such judgments are routinely paid by or through the company named as the “servicer”  — but the claimed servicer is not even a party to the litigation. But what if it isn’t paid? That actually happens sometimes.
      2. If the Style of the case is XYZ Bank NA as trustee for the ABCDE Trust Series 2006-BC6 AND there is an allegation that the Plaintiff is a National Association, that is technically not true.
        1. The plaintiff is the putative trust. This is an important distinction.
        2. The trust is not a National Association (i.e. a nationally chartered bank) and the allegations in the complaint are missing the required components of a statement of how and where the trust was organized — which might be subject to a motion to dismiss or a motion to dismiss for lack of jurisdiction.
==============
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 12 years or more. In addition, although currently rare, it can also result in your homestead being free and clear of any mortgage lien that you contested. (No Guarantee).

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

Please visit www.lendinglies.com for more information.

How to use your knowledge of securitization to win foreclosure and quiet title cases

In an effort to show the relevancy of securitization in the collection businesses established with each new transaction with homeowners, I have had some discussions about the usefulness of knowing who has access to funds paid by homeowners and who gets paid any money as a creditor of the homeowner.

*

In our example here the servicer is Ocwen, but it could be any one of a dozen or more companies that are named as “servicers but who do not receive payments nor distribute money to investors or creditors.

  • Homeowner payments by check are sent to a PO Box that is in the control of a lockbox provider like FiServ or a depository bank providing lockbox services through a FINTECH company (frequently Wells Fargo).
    • The box is not owned by Ocwen but Ocwen is named as a DBA for the party that owns and controls the box.
    • Ocwen neither deposits the money nor can it access the money.
    • Its records showing payments and payment history are based upon reports FROM Fiserv who is operating under contract not with Ocwen but with an intermediary for the investment bank bookrunner.
    • Testimony from an Ocwen representative is hearsay on hearsay. It is excludable from evidence if a timely and proper objection is raised.
  • Homeowner electronic (EFT) payments (ACH, auto withdrawal etc.) are directed to an account owned and operated by the FINTECH company just like the paper check payments. The account is owned by Fiserv and maybe CoreLogic dba Ocwen.
    • Ocwen neither deposits the money nor can it access the money.
    • Its records showing payments and payment history are based upon reports FROM Fiserv who is operating under contract not with Ocwen but with an intermediary for the investment bank bookrunner.
    • Testimony from an Ocwen representative is hearsay on hearsay.
  • Homeowner correspondence and legal notices (QWR, DVL etc) are directed to another PO BOX that is owned and controlled by a FINTECH company running algorithms based on artificial intelligence producing stock answers to every letter. Once again this company is dba Ocwen. Things that don’t fit within the knowledge or programming of the server processing correspondence and notices are discarded.
    • No human hands or minds are involved in the receipt or processing of correspondence or notices from the homeowner.
    • Generally, no signature is attached to any of the correspondence, notices, or statements sent out under the Ocwen letterhead.
    • Ocwen knows nothing until foreclosure is initiated at which point Ocwen receives instructions and access to a limited set of data prepared for use in court by a FINTECH company who may or may not be the FINteCH who received and processed incoming homeowner payments.
*
The importance of all of this is that under the rules of civil procedure and the laws governing the definition of evidence Ocwen is irrelevant if it is not receiving the payments, processing them, and inputting data into an accounting ledger reflecting their receipt of the funds.
*
Unless an officer of the FINTECH company testifies that they processed the transaction, noted the receipt of payment, and produced a report for publication by Ocwen, there is (a) a lack of foundation to Ocwen representative’s testimony and (b) a very clear path to excluding Ocwen robowitness testimony without which no exhibit can be introduced.
*
There are two ways of attacking this. One is to issue a subpoena duces tecum to the FINTECH company and the other is to have the information already in hand. Caution: the FINTECH company gets very touchy when they are contacted directly by a homeowner.
*
But best practices in litigation would be to issue the subpoena while at the same time the lawyer is compiling evidence of who is performing what function — and therefore who could produce a business record showing what functions they performed.
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The indemnification agreements between the servicers, FINTECH, and other vendors on the one hand, and the investment bank bookrunner on the other hand expressly state that nobody needs to get involved including but not limited to the servicer (e.g. Ocwen), the REMIC Trustee and the FINTECH company. FINTECH will not get involved in testimony or the introduction of exhibits as evidence.
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If we can show that the named servicer is not receiving the funds, not disbursing the funds, and not processing funds then we can bar any “business record” as excludable under the hearsay rule even if the information on it is true. Barring the testimony of the robowitness forces the issue.
*
The result is
  • voluntary dismissal without prejudice.
  • An involuntary dismissal with prejudice
  • Judgment entered for the Homeowner.

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

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 12 years or more. In addition, although currently rare, it can also result in your homestead being free and clear of any mortgage lien that you contested. (No Guarantee).

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

Please visit www.lendinglies.com for more information.

Homeowner Beliefs and Fears Drive Losses in Court

There is no “YES”.

There are many people who get angry with me for ascribing some blame to the homeowners themselves for the toxic economic environment and the judicial environment resulting in the victimization of homeowners.

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Some argue that “I tried that and it didn’t work.” The fact is that none of them are lawyers and none of them truly understood the securitization fallacies that we all deal with day after day. And no pro se litigant is a master of the rules of court, evidence, or procedure.

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So here is my response:

A loss in a foreclosure case is not the fault of the homeowner nor is it a basis for asserting that justice was served. You are right that it is not the fault of the homeowner to have a lack of knowledge of the complicated intersection of law and finance. And you are also correct that ignorance of the rules of court is not the fault of people who go to court.

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And most lawyers are in the same boat — no knowledge of finance which usually reduces the defense narrative to rubbish. And Judges are all lawyers, so the same thing applies.

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But you are right when you get from my writing that homeowners share the blame for what happened and what is still happening.
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The main point of this discussion is the ability and willingness to pay a good lawyer the fees required to do ALL of the work necessary. Homeowners all cry poverty when they are looking for a lawyer. They have already reduced their goals and expectations, to wit: instead of being in it to win it, they only want delay or settlement. So the value they put on a lawyer’s services are also diminished.
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So the willingness of the homeowner to plunge into litigation that could turn out to be “expensive” results in retainer agreements with lawyers who are NOT paid to do all the investigation and research to narrow and sharpen the tip of the spear.
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And the lawyer does not do the investigation and research and analysis. Such lawyers go to court with diminished expectations and without a strategic plan or tactical plan. The die is cast for nearly all such cases the moment that the issues are joined.
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Everyone, including the homeowner themselves, believes that the transaction as a loan, it still exists and that the named “servicer” is performing servicing functions for a bona fide creditor. They admit to those presumptions directly or indirectly by referring to entities by the descriptive term used by the banks — all for the purpose of misleading the homeowner, the lawyer, and the court.
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So the lawyer for the homeowner goes to court with no reasonable desire to win, a fact that is not lost on the judge who is simply playing the game of the appearance of due process. Homeowners will almost always slip up (and so does the lawyer) by calling the transaction a loan, by referring to the correspondent as a servicer, and by referring to the claimant as a bank.
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This is not a philosophical discussion of what should be done. I deal with real-world realities. People challenge me all the time by pointing to cases where the homeowner lost. Did he or she ever think they deserved to win — or did they think that it would be great if they somehow escaped enforcement? The difference between losing and winning is in the intent of the homeowner and the lawyer.
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The proof of the pudding is that the house, if it was free from any encumbrance, would represent a major asset that could be sold, thus providing a basis for a better lifestyle or retirement. But there is virtually no homeowner that I have ever spoken with who thinks that is a viable option. So they aim far lower and that is what they get — low results. In their hearts, homeowners believe that the loan is real because that is what they asked for and that is how it looked at “Closing.”
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So they will admit and concede facts that are not true. The defense narrative in that scenario becomes “yes, but.” There is no “but”. If you have a legitimate debt owed to a creditor who is losing money because of your failure to make a payment, there is no “but.” But if you find that that there is no loan account and there is nothing to legally enforce, there is no “yes.”
=================
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 12 years or more. In addition, although currently rare, it can also result in your homestead being free and clear of any mortgage lien that you contested. (No Guarantee).

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

Please visit www.lendinglies.com for more information.

MERS and the problem of false agency

Since the beginning of this century, The initial transaction with homeowners was the product of multiple layers of paperwork, most of which were neither identified nor accessed by consumers or their professional advisers.

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Here is the deal:
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As was typical during the “securitization” era, the application for a loan is received as the commencement of the transaction. It is not the “closing.”
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From your perspective, you asked for a loan, and you were given false paperwork for you to read and sign. From the perspective of the disclosed counterparty to your transaction, the originator was merely paid a fee for the service of selling the transaction to you as a “loan.”
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The funding for your transaction is an elaborate scheme unto itself. Once the paperwork is completed by the investment bank, the investment bank borrows the amount of money needed to pay homeowners at or near the time of closing. There is frequently a waiting period after what the homeowners perceive as a loan closing. This is the final check to make sure that there are not multiple entities named as Plaintiffs or beneficiaries on mortgages and deeds of trust respectively.
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The loan from, for example, Credit Suisse, is collateralized by the impending sale of certificates to investors. The certificates do NOT represent any status as beneficiaries of a trust nor any status as a creditor to whom the homeowners ‘payments set forth on the homeowners’ note are payable.
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Payments of money to the investors are discretionary but they usually are made by the investment bank regardless of whether or not any homeowner makes a scheduled payment on the schedule described in the promissory note issued by the homeowner. Investors were sold and contractually accepted the idea that they and no right, title or interest to any homeowner payment, legal debt, underlying obligation, note, or mortgage (or deed of trust).
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So investors are paid not by homeowners but by various undisclosed intermediaries who have access to the funds paid by homeowners and access the funds generated by sales of certificates that are frequently mislabeled as Mortgage-Backed Securities. The fact the payments are frequently made as “Servicer advances” (as though the money came from companies who were named as “servicers” is the foundation for framing this deal — taken as a whole — as at least part of the PONZI scheme.

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The sale of the certificates pays back the loan to Credit Suisse, plus a fairly large (e.g. 30%) profit partly directly arising from a yield spread premium (the difference between the amount of money paid by investors for unsecured IOUs from the investment bank and the amount paid to homeowners. Additional money is generated as the proceeds or revenue of either sale of the additional derivatives securities created and issued by the investment bank.
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The problem for laypeople or even lawyers is that there is a choice between whether to analyze your transaction from the perspective of what you were seeking or whether to analyze the group of transactions from the perspective of the securitization scheme, without which there would have been no homeowner transaction. The consensus in the media and courtrooms is to simply analyze the transaction from the perspective of what the consumer wanted when he or she applied for a loan, regardless of where that is an accurate description of the transaction.
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Contemporaneously with the origination of the transaction, several things are happening. In broad strokes, they are divided into the money trail and the paper trail. In the paper trail, none of the documents correctly identify or describe a transaction much less “memorialize” any transaction. Because everyone has received all the money they intended from participation in the “securitization” scheme the essential ingredient of a loan account receivable is eliminated thereby making nobody the “lender.”
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Simply stated, since there isn’t anyone who maintains any record on the accounting ledger of an account receivable owed by you, there is no creditor. Nonetheless, in order for the securitization scheme to work (justifying more sales of certificates and other derivatives to investors), it must appear as though (a) an underlying obligation is created, owed to a specifically named lender and (b) that it has been transferred to a named business entity with caveats on the sale — namely that there is no warranty of title to the claims against homeowners.
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When the origination cycle is complete, the status of the transaction is that there is no counterparty who has a stake in the viability or success of that transaction because nobody loses money if the homeowner does not make a scheduled payment — one that I maintain is simply not due to anyone. The absence of a lender — and all that entails under law — means there is no loan. The finance side of the transaction knows this but sets out to create a false paper trail to make it seem like “this is a standard mortgage loan” or ” this is standard foreclosure action.”
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The financial community in coordination with lawyers willing to play the “game” used strategies and tactics to not only make it appear that the transaction was a loan but to actually have the court presume that the transaction was a loan and that the complaining party has hired counsel to seek a remedy. The status of such claims is always this: there is no obligation, loan account, or other claims for money allegedly due from the homeowner.
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The primary tactic utilized by the financial community is the volume of paperwork. the thicker the pile of paperwork the more likely it is that a layperson sitting on the bench, will conclude that the transaction was real as a “loan.” And that is why we witnessed the birth of a major industry — creating false, fabricated, backdated documentation making it appear that several brand name institutions were trading, purchasing, and selling the “loans”. In reality, no such transactions existed, but the paperwork said the t transactions had occurred.
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Considerable effort and coordination were devised by the financial sector to mislead the court system and they did so successfully in most cases. But even a casual look at your chain of title for the mortgage or deed of trust reveals inconsistencies in the paperwork especially when one realizes that the signature block one each document is on behalf of entities that (a) don’t exist at all, (b) exist but are irrelevant to the transaction and (c) are unclear from the face of the document.
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Your case is almost certainly closely aligned with the typical playbook of strategies and tactics. Examining the document assignment of mortgage you find what is typical:
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  1. No consideration. the law requires that value be paid by the claimant before it can file suit to enforce the claim. But that law does not impact the ability of the foreclosure players to make false claims of authority to administer, collect or enforce in correspondence, notices, and statements.
  2. “Corrective instruments” that correct nothing in order to establish more paper volume.
  3. Execution of assignment by a business entity that has no right, title or interest in the alleged obligation. For example, MERS is used to launder titles.
    1. People from  FINTECH companies regularly access the main servers that are maintained by MERS for the sole purpose of getting themselves automatically appointed, without board resolution, as an officer of MERS.
    2. MERS always is described as the nominee for the specifically named “lender” who is just an originator selling a financial product as described above. MERS is used as a cover-up. It effectively hides the title gap in plain sight.
    3. The execution of an assignment or corrective assignment presumes that it is acting as an agent for whoever is currently named as the current claimant, beneficiary, or Plaintiff. But no such agency exists in fact or at law.
    4. The execution of a security instrument (mortgage or loan) by a self-proclaimed “servicer” (which performs no servicing duties with respect to receipts data processing and disbursement of money from homeowners) on behalf of a new entity appointed to be the claimant, beneficiary or Plaintiff. But the execution of the assignment by MERS on behalf of Countrywide after the collapse of countrywide. it does not exist.
      1. And Bank of America did not acquire any ownership interest in any homeowner transactions because countrywide didn’t own any such interest.
      2. So while Bank of America was a successor to Countrywide, the foreclosure team is relying on appearances — in order to get the court to presume that the merger created a transfer of the ownership of the unpaid nonexistent loan account receivable of the mortgage rights from Countrywide as originator to Bank of America.
      3. In such mergers, there is no Mortgage Loan Schedule, nor any written assignment of mortgage. Since the law requires the assignment, the presumption that the transfer could occur without an assignment of mortgage is erroneous. But that fact will not stop foreclosure unless it is aggressively contested.
    5. The document is supposedly executed by someone calling themselves an “assistant secretary.” But note that it does not say that the signor was the assistant sectary of MERS.
    6. Every time there is mention of MERS it includes the phrase “its successors and assigns” such that it is unclear from the grammar utilized whether there is a successor to MERS or a successor for the principal in the agency agreement between MERS and the originator (Countrywide in this scenario).
    7. But there is no succession to either one unless (a) someone bought or merged with MERS or (b) someone bought loan accounts receivable from Countrywide. Such a sale would’ve been impossible because, by the time of the merger, Countrywide had only reserved “servicing rights” which really only meant the claim to receive “servicer advances” upon liquidation of a foreclosed property. So there is no MERS successor and there is no Countrywide successor as it relates to either the actual pr presumed transfer of the alleged underlying obligation.
    8. Any endorsements are undated. Under current law, this means that parole evidence must be offered to prove that the promissory note was transferred and delivered to the party named as claimant, beneficiary, or Plaintiff.
    9. Documents requiring the signature of the homeowner are in most cases completely fabricated even if the homeowner did sign similar documents. This has been sued to change the fact relevant to execution and delivery of the promissory note that in approximately 95% of all cases is destroyed within days of the time of closing that transaction with the homeowner.
      1. This becomes clearer when the homeowner is able to lay hands on the original note at least as an original, and when the original note contains coloration of signature or other marks that do not appear on the refabricated note made by electronic manipulation of images.
    10. The foreclosure mill will often utilize such fabricated documents even when they contain glaring facially invalid errors. For example, where a parent was the owner of the property and signed the “mortgage” paperwork, the instructions received by the law firm are turned into correspondence, notes, statements, and pleadings that reflect the grantors under a deed of trust or the mortgagors under a mortgage instrument become the heirs or successors to liability under the note.

=============================
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 12 years or more. In addition, although currently rare, it can also result in your homestead being free and clear of any mortgage lien that you contested. (No Guarantee).

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

Please visit www.lendinglies.com for more information.

Notices To and From Servicer Might Mean Nothing at All

In homeowner finance, ALL claims start with notices from third parties with whom the homeowner has previously had no communication. My suggestion is that homeowners start challenging those letters, statements, and notices as soon as they arrive. Such challenges make “tracks in the sand” for later use in litigation.

But the real issue arises repeatedly because the condition precedent to foreclosure about which there is no dispute is that first there must be a declaration of default. And in the world of securitization, there is no creditor, loan account, or any loss or ven risk of loss arising from a homeowner failing or refusing to make a scheduled payment.

A declaration of default usually comes from a disinterested third party who does not represent an existing creditor who maintains an unpaid loan account receivable on its accounting ledgers reflecting real-world transactions in which it paid value. The equivalent legal value of that is you sending a notice of default to your neighbor when you figure out he or she did not make a payment to the utility company. The notice was sent but it has no legal effect. it is called a legal nullity.

So the question arises about what happens when you send a QWRT or DIVL to the company that was named as a servicer. the first thing that comes to mind for me, is that merely sending the QWR or DVL might be construed as a tacit admission that the company really is a servicer.

*

This logically leads to the presupposition that since it is a servicer it is really performing real servicing duties. And that logically leads to the factual conclusion that it is legally and rightfully acting on behalf of a true creditor. And since a true creditor obviously loses money when a homeowner does not make a scheduled payment, it follows that the default can and should be issued.

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The problem with this analysis is that it leads inexorably to the conclusion that you should not respond to fakers. But since the players are claiming rights of administration, collection, and enforcement, they DO appear to fall under protections for consumers relating to those activities. But that still leaves open the issue of whether the named “servicer” is the only one who should receive the DVL and QWR.

That is the question I answered as follows:

Theoretically notice to the servicer is a notice to all under the regulations. The problem is that the company named as a servicer does not do the servicing. That is one of the subjects that is never discussed.

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The company named as servicer probably does have some apparent agency or other authority to present the named Trustee of the REMIC trust. But since that trustee never has the right, power, justification or excuse to administer any affairs regarding the alleged loan account (which does not exist) giving them notice arguably is a failure to give notice to anyone who is real party interest. But it IS notice to everyone who is engaged in apparent debt collection activity even if there is no debt.

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So sending the QWR to all who are “interested” (in a conspiracy to defraud) is probably a good way to go. The real problem is that the laws do not cover this scenario. A legal question is whether the extensive protections for consumers even apply to a company whose name is being used (with consent) to simply put a face on a scheme in which money is illegally collected without any right, justification or excuse? Anyone receiving the QWR is basically put on notice that they may be part of a future lawsuit.
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The countervailing argument is that some of the proceeds are eventually used to pay off some of the money due to investors (the rest coming from sales of new certificates). But that argument fails because the investors who became “holders” of certificates are merely the payee on an IOU issued by an investment bank in a transaction wherein the investors waive any right, title, or interest to any homeowner payment, debt, note, or mortgage.
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The bottom line for all this is whether there can be any legal collection activity without a creditor, a loan account or any risk of loss. Even the investors get paid the debt from the investment banker regardless of whether or not a homeowner misses a scheduled payment.
*
===============
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 12 years or more. In addition, although currently rare, it can also result in your homestead being free and clear of any mortgage lien that you contested. (No Guarantee).

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

Please visit www.lendinglies.com for more information.

Don’t wait until the end: Interlocutory appeals succeed where the issues are narrow

Aggressive litigation means basically that the lawyer or pro se litigant uses every tool in the box to force the opposition onto its heels or out of the courtroom. Each state has its own rules and laws governing interlocutory appeals. Those are appeals that take place before the case is over. And as I said last night on the Neil Garfield Show, the name of the game in foreclosure defense is kicking your opposition out of the courtroom as early as possible — before getting mired down in a prolonged war.

In general, interlocutory appeals are allowed when the trial or BKR judge makes a decision that essentially negates a large part of the case for reasons that are clearly erroneous. You must be specific in both the issue you are appealing and your argument or reasons for bringing this as an interlocutory appeal instead of waiting for the end of the case.

You should always look for ways to terminate the case early because it is the difference between night and day. A case that ends early could involve only a few thousand dollars and a few months’ time. A case that ends up in a long-term war and costs tens of thousands of dollars. Homeowners must be prepared to pay for the work that needs to be done — not merely expect it because they paid a $500 retainer. This work will cost no less than $7500 with any reasonably competent local attorney — even with assistance from my office.

One of the interesting facts that make tactical decision-making so important is that there is a statistical anomaly between the normal appellate process and the interlocutory appellate process. For one thing, they nearly always produce an early result. For another, particularly in the Federal Bankruptcy Court, the statistics show a much higher rate of success when the appeal is made to the Federal District judge instead of the BAP or the Circuit appellate court.

Here is a recent analysis I transmitted to a prospective client:

I MIGHT be able to help. If the order of denial was recent and you have a record you might want to consider an appeal. In your case it could be an immediate appeal. It is called an interlocutory appeal.

There are three avenues for appeal.
(1) Appeal to Federal Circuit Appellate court where the likelihood of success is virtually zero.
(2) Appeal to Bankruptcy Appellate Panel, where chances are somewhat improved. and

(3) appeal to Federal District Judge in the same court where the bankruptcy court made the wrong ruling. Statistics show that many bankruptcy judges agree that the chances of success are around 50% which vastly exceed successful appeals in all other cases.

People do not realize that BKR judges have limited jurisdiction and it might well be that the BKR judge went beyond her authority when she ruled against you. But in all events, if she was clearly wrong then you have the conventional reasons to appeal. And District Court judges are generally happy to assert themselves over the “lesser” BKR judges who at one time (when I started practicing) were not even considered judges.
I can review the situation if you want. I won’t appear as an attorney of record but I can write everything and prepare you for an oral argument in front of the Federal District Court judge if an appearance is necessary.
You will need to send me all relevant documents to this specific issue. That includes a screenshot of the docket from the beginning of the BKR proceeding. I will review them, order a new title search with copies of all relevant documents, and then set up a telephone conference with you. This is called the Click Here for Preliminary Document Review (PDR) [Basic, Plus, Premium). Generally speaking in roder for me to get brought up to speed you shoudl select the PREMIUM.
When we have the CONSULT we will decide on next steps. If it is the appeal I can draft all necessary documents but you should have local bankruptcy counsel advising you. This would be a limited retainer for which I would bill you $4500. That would cover all expenses and fees unless the judge orders me to appear. You must disclose where you are getting help.
If we go to a retainer, then I will send you a retainer agreement and upon execution, I will bill you through PayPal and upon receipt of payment I will commence work. The retainer fee can be s[rpead out over 60 days in three payments of $2500, $1,000 and $1,000.
Note that I am estimating fees not quoting them — and the fees paid to GTC Honors, Inc are in addition to the fees paid to local counsel.
PRACTICE NOTE: because of the statistics there is an inherent tactical advantage if you seek protection under chapters 13, 11, or 7. An erroneous ruling that is subject to interlocutory appeal has a far higher chance of success than anything you might find in the state court processes.
=====================
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 SETTMENET 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 12 years or more. In addition, although currently rare, it can also result in your homestead being free and clear of any mortgage lien that you contested. (No Guarantee).

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

Please visit www.lendinglies.com for more information.

Tonight! 6PM EDT Garfield Unveils Preemptive Attacks on False Claims for Debt Collection

Thursdays LIVE! Click in to the Neil Garfield Show

Tonight’s Show Hosted by Neil Garfield, Esq.

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

Tonight I will share my thoughts on strategies and tactics that will likely put your opposition on its heels and probably result in an outright win for homeowners and virtually all consumers who have a written contract for installment payments. We start with the premise that virtually all such transactions are securitized.

For the past 16 years, I have published, chapter and verse, how the presumed debt is extinguished in the process of securitization, and I have enjoyed considerable success along with dozens of other lawyers who basically attacked the basic components of claims to administer, collect or enforce an alleged debt when it does not exist. In nutshell, there is no debt because none was intended by the counterparty to your agreement, who was not who you thought it was.

The basic mistake I made along with other lawyers was ignoring (or not capitalizing on) the many opportunities that exist under the rules of procedure to create an existential challenge to the claims.

Put simply, if there is no Claimant or Plaintiff and there is no claim at all, then why must we wait to the end and spend tens of thousands of dollars in legal fees to get to that point?

Or perhaps more to the point, why must homeowners lose their homes to such false claims simply because they lack the resources to contest them?

So in tonight’s show, we will visit and revisit some basic strategies that I believe will work most of the time and which could shorten the litigation period substantially.

LISTEN UP! THIS IS HOW HOMEOWNERS WIN! AND FOR THE FEINT-HEARTED IT IS HOW THEY SETTLE ON HIGHLY FAVORABLE TERMS.

Here is the Agenda:

  • Administrative: QWR and DVL, Complaint to CFPB and State AG
  • Motion to Dismiss and/or Motion for More Definite Statement
  • Offer of Judgment, Letter, and Notice of Service
  • AMGAR Strategy: Make them an offer they can’t refuse (but they will)
  • Motion to Strike Exhibits
  • Motion for specific mediation order requiring the claimant to appear through an officer employed by the claimant.
  • Interlocutory Appeals
  • Combined Request for Admission and Request for production
  • Motion to Compel Response
  • Motion for Sanctions and
  • Motion in Limine
  • Motion for Summary Judgment

Remember that in 28 minutes of talk time I can only give an overview of these strategies. And with rare exceptions don’t try to do this on your own. Yes, you DO need a lawyer who is licensed in the jurisdiction in which your property is located. There is no guarantee that any of these strategies will succeed, even if they have worked in the past. We provide assistance to local counsel.

Candidates for Office and Lawyers for Consumers Are Missing the Brass Ring

We need to elect candidates who run on an anti-bank platform. That means getting to them when they are just sorting out whether they will run or when they first start running. Any message that ties current day-to-day problems for citizens to the banks will resonate.

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The problem is that the banks settle in quickly and start making contributions to avoid that run. But several candidates who have eschewed contributions from Wall Street did very well with soliciting campaign contributions from normal people. This requires at least limited access to prospective candidates. And you need to prepackage the message so they can just run on it.

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COVID merely exposed a fundamental weakness in our economy. That weakness was caused by Wall Street securities firms. They drained out tens of trillions of dollars from U.S. wealth and the economy in general. And they are still doing it. Virtually all installment payment transactions are funded through securitization.
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But securitization does not mean what is believed by the general consensus. If securitization meant that loans were divided up into parts that were sold to investors there would have been no 2008 Great Recession. Prices would not have sailed far above home values and loans would have been created that were properly underwritten in which appraisals, assessment of viability, and disclosures were all within the parameters required by Federal and State statutes.
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That is not what happened. It takes a certain amount of financial sophistication to understand the basics of what did happen. Consumers thought they were getting a loan. They were wrong. A loan has two parties with a stake in the deal. That does not exist. A loan has a risk of loss on a normal common sense loan account receivable. That doesn’t exist either. In a loan transaction when someone stops paying, the other party loses money. That doesn’t happen.
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The payment that homeowners (and all consumers) received at the “closing” was merely an incentive to issue the instruments that were used to issue unregulated securities to investors. Contemporaneously with each homeowner transaction, the role of the lender, loan account, risk of loss, and compliance with statutes was completely eliminated. Instead, an infrastructure emerged that was focused on the appearance of debt collection without any debt held by any creditor.
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In Iceland, they took care of the problem by nationalizing the issue. They reduced all household debt by 25%. The problem was over. Their economy recovered in a few months. Ours has lingered on for more than 20 years. We also nationalized the issue by the takeover of the GSEs Fannie, Freddie etc. But that was to protect the perpetrators of the greatest scam in all human history.
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All of this information can be put to good use by consumers who are receiving claims to administer, collect or enforce a debt that is claimed to exist on the books of some creditor. There is no debt and there is no creditor. By freeing up the process from being actually tied to ownership of any loan, the Wall Street securities firms were able to sell multiple iterations of various hypothetical interests in the performance of the transaction rather than the transaction itself. On average they made at least $12 for each $1 paid to consumers or on their behalf in installment contracts like those that were falsely labeled as loans.
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Despite the complexity presented here, the message is simple. If there is no loan, debt, or underlying obligation, then the note and mortgage are evidence of nothing. *
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Homeowners who follow that simple message typically win or settle their cases on highly favorable terms. Candidates who are running an antibank platform need only say that under their plan banks would be forced to settle on highly favorable terms. This would produce a much-needed stimulus of real cash into a real economy.
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Up until now, litigation of false foreclosure claims has been arduous and expensive. Tomorrow night, on the Neil Garfield Show I will unveil some strategies and tactics that could end litigation early in favor of the consumer/homeowner.
====================
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. 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.

Law Practices at Foreclosure Mills Could Lead to Prosecution

In a statement made via a news release issued Wednesday about the suit, James said, “In failing to fulfill their basic responsibility, Balsamo [law firm] caused untold trauma, stress, and financial hardship to New York tenants throughout the city. With each housing case, there is far too much at stake for lawyers to cut corners. We are talking about people’s ability to have a roof over their head.”

I doubt if it comes as any real surprise to the many law firms that quickly organized to file claims against consumers — especially homeowners. But the money was just too good to turn it down.

In an article in the New York Law Journal by Jason Grant, he reveals that Attorney General Letitia James sued a law firm for “deceptive rent collection practices” and “initiating frivolous lawsuits,” according to the complaint and a news release. Although I would argue that criminal charges might apply, the AG has chosen to go the civil route.

The NY AG alleges that a Brooklyn landlord-tenant law firm runs “a high-volume debt collection and eviction litigation practice by copying and pasting assertions from an intake sheet.”

The AG attacks the practice by copying and pasting assertions from an intake sheet filled out by their clients without conducting any meaningful attorney review of cases, and have sued and even evicted tenants where there was no legal basis to do so.

I take note that the allegation is not that they copy and paste from other pleadings. All lawyers do that. They are allowing third parties to file suit using the law firm as a cover. And the reason is both plausible deniability and litigation immunity. A private party could be used for making baseless arguments and assertions in court, but a lawyer cannot.

This is a little-noticed breakthrough. For the past 20 years law firms have grown rich by getting vastly overpaid for cutting and pasting allegations, names of Plaintiffs, and citations to exhibits in foreclosures — all without ever receiving a single communication from their presumed “client.”

These law firms not only fail to perform the basic due diligence required of all lawyers, but they are also in fact paid to NOT ask questions of anyone.

When a lawsuit names U.S. Bank or Deutsch or Mellon as Plaintiff you can be virtually certain that U.S. Bank does not know anything about the lawsuit, has not authorized it, wants nothing to do with it, and won’t even acknowledge it. Try getting one of the alleged REMIC Trustees to acknowledge the settlement when a forbearance or modification is offered.

For an outlandish fee, such Banks are allowing their names to be used as Trustees but they too know full well that they are probably going to be exposed to substantial liability for renting out their names for use in illegal collections and foreclosures. The documents do everything possible to protect those banks who enter the fray not as banks or even as trustees, but as participants in a civil conspiracy.

In the documents, they are prohibited from exercising any monitoring,  knowledge, control or even ratification of acts performed in their name. All states have laws that say that no material acts governing the administration of affairs of a trust can be performed by anyone other than a trustee.

But there is no trustee authorized to administer the active affairs or property of the REMIC trust because (a) it isn’t a trust and (b) there is property or res that has been conveyed into the trust or to the named Trustee either on its own behalf or in any representative capacity. I might add (c) which is that the REMIC trusts are not just entities that are not trusts, they are also not REMIC entities and in many cases, they are not legal entities at all.

Instead of producing a Trust Agreement that according to all b basic treatises on trust, including states and common law, the Wall Street community produces a Pooling and Servicing Agreement (PSA) which is (a) not a trust agreement and (b) a statement of future intention. It does not recite that anyone ever purchased, sold, or conveyed any asset to anyone, least of all a loan account receivable.

Foreclosures brought in the name of such trustees strongly imply the existence of a REMIC trust without ever asserting the words “REMIC trust.” This is probably because it is not a Real Estate Mortgage Investment Conduit.

These implied REMIC trustees are not even allowed to inquire. nor confirm the identity and authority of a “subservicer” who is supplying the witness for trial and whose name is used for the production of documents that were fabricated for trial. Documents that did not exist and would not exist but for purposes of trial.

So back to the subjects at hand. The NY AG is correct and this could have a ripple effect throughout the country. Lawyers are not supposed to take any action on behalf of anyone before that person, or business entity becomes a client. the banks are not clients of the foreclosure mill and they won’t say that they are clients. They are not billed or contacted by the law firm before, during, or after the foreclosure action is filed and executed.

  • These law firms are receiving an “intake” electronically on their desktops where it is converted without human thought into the necessary documents for initiating a foreclosure.
  • There is not a single lawyer, investigator, paralegal, or clerk who has any idea whether the instruction to name U.S. Bank., N.A., is based upon any factual foundation.
  • There is not a single lawyer, investigator, paralegal, or clerk who has any idea whether the instruction to plead any facts or use any exhibit is based upon any factual foundation.
  • There is not a single lawyer, investigator, paralegal, or clerk who has any idea whether the institution named as REMIC Trustee or named as their client is based upon any factual foundation.

From the article, quoting from the NY AG complaint:

“Law firms and attorneys that send rent demands or file non-payment proceedings under their name are representing that an attorney was meaningfully involved in assessing the legal merits of the claims,” states the complaint, which is signed by two members of the Housing Protection Unit of the Attorney General’s Office.

“Such a representation is false or misleading if, in fact, there has been only superficial, ministerial attorney involvement,” the complaint further says. “Likewise, when attorneys sign their names on court papers they represent to the litigants and the court that what they allege is true and based on a reasonable inquiry.”

The suit brings seven causes of actions and alleges that actions taken for years by the boutique firm in its “housing court practice” have violated state Executive Law, the Federal Debt Collection Practices Act, and state General Business Law.

Foreclosure defense lawyers should take note of this. This is not just bad practice. It is an opening to win the case outright. Because if neither the lawyers nor the client has any basis upon which they could make any allegation of facts the described behavior of a homeowner that caused financial injury, they have no proof that such facts are true.

So, for all their clever manipulations and carefully worded scripts, you can defeat them consistently by challenging at every turn whether they do represent the REMIC trustee, whether the fabricated documents are reciting events in the real world and whether the stated claimant or Plaintiff or creditor actually has any legal right or even moral right to assert claims to administer, collect or enforce alleged debts from homeowners.

Simple example: If an assignment says there is a grantor or grantee, start asking questions and demanding answers under RESPA, FDCPA, and court discovery. They don’t have the answers. You don’t need to prove fraud. You only need to undermine their ability to prove a prima facie case — something they won’t be allowed to even try if they have refused to comply with discovery, court orders, and even sanctions. The beauty is that they will always refuse. That is your ticket.

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

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. 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.

How Evidence Works for and Against the Consumer/Homeowner

(Once again, because of minor medical issues I decline to do the Neil Garfield Show. I offer this instead)
It is easy to get lost in the weeds. Don’t make up your own words or definitions because your definitions have no relevance to your case. Do hold the accusing side to their words and to the legally accepted definitions of those words as contained in statutes and cases.

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

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

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

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

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So it is easy to see why the investment banks trusted FiServ to handle those functions rather than anyone else. And they did. After the Tylor Bean débâcle, they would never let a company actually perform servicing functions because that would leave open the door to stealing.
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It was Black Knight who set up the lockbox arrangements (contracts) but FiServ who actually did the grunt work — receiving, accounting, and disbursing $MONEY$. Except that they didn’t really do disbursing.
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Because the act of depositing the money was a disbursement. They would take a $1,000 check from Homeowner Smith and deposit it into a bank account that was owned and controlled by XYZ Capital Finance, Inc. which was either a subsidiary of the investment bank or a conduit for outflow to offshore accounts. The named “servicer” never saw or even expected to receive that money.
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The reason why I am commenting on this is that this is extraordinarily important to the defense narrative for consumers. The ONLY party who may sue is one who has suffered financial injury “proximately” caused by the conduct of the party against whom he has filed suit.
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I have argued for 16 years that the homeowner deserves to win. But people take that as meaningless drivel from a defense lawyer who will always say that his criminal client is innocent. So try this: you can win and why should you not? If you were facing jail would you really so blithely accept the “inevitable”?
  • If the homeowner fails to make a payment that appears on some schedule and Goldman Sachs loses money because they’re betting that he would make the payment, the injury suffered by Goldman Sachs is NOT LEGALLY caused by the failure of the homeowner to make a payment. GS cannot sue the homeowner for that. That bet is the same as betting on a horserace. You can’t sue the owner for losing or throwing the race.
  • If an investor IS getting paid regardless of whether the homeowner makes a payment or not, then they can claim no injury from the “failure” to make a scheduled payment.
    • The investor who purchased a certificate is simply betting that the investment bank that issued the certificate will make the payments or cause payments to be made according to the terms of the contract that is the certificate — not according to any contract with the homeowner. The certificate parties are investor vs investment bank — not investor vs homeowner.
  • If an investor has no legal claim to receive payments from homeowners nor to administer, collect or enforce any alleged loan account the investor has no claim whatsoever against the homeowner — for the simple reason that the investor has chosen to have no relationship whatsoever with the homeowner in order to avoid liability for lending and servicing errors, mistakes or violations of statutes passed by the Federal and State governments — of which there were tens of millions of cases resulting in hundreds of billions in settlements, so far.
  • If an investment bank was counting on receiving a scheduled payment from a homeowner but had no right to receive it, it may not under current law in any U.S. jurisdiction recover money from the homeowner nor force the sale of the homeowner’s property.
  • If the investment bank had no legal right, title or interest to the underlying obligation, debt, note or mortgage (deed of trust) issued by the homeowner, then it had no right to administer, collect or enforce any payment set forth on any schedule — nor grant the authority to do so to someone else.
    • One may not grant rights that do not belong to the grantor. If I promise to give you my jet, you will not get the jet simply because I don’t have a jet. And if you know I don’t have a jet you have no claim for my failure to deliver it.
  • If a company is named as servicer then unless FiServ is doing the work for that “servicer” company (under contract), then the work done by FiServ is the work of Fiserv, and only Fiserv employees and representatives can testify about what was done and what their records contain.
    • Any report issued by them or based upon FiServ data must be established by foundation testimony from the records custodian of FiServ and not some robowitness employed by the company who was named as a servicer but was not performing the basic servicing functions.
    • Any such report and testimony of the “representative of the named “servicer” are irrelevant, lacking in competence, foundation, or materiality.
    • Such testimony is rank hearsay clearly excludable in every court in every U.S. jurisdiction — but only if a timely and proper objection is raised within the context of a coherent defense narrative.
    • This is because the only thing that a robowitness can really say is that “I received this report and my boss says it is a report from my employer who I have been told by someone (I don’t remember who) is a servicer of an unpaid loan account due from the homeowner to the Greatest Bank of All Time, N.A., not on its own behalf but on behalf of the Indecipherable Trust 200x-04 ALRT-A pass-through certificates, not on its own behalf but on behalf of the holders of those certificates, about whom I know nothing.” 
      • “I know nothing about the content of any servicing agreement between my employer and any creditor who has paid value or otherwise has a right, title, or interest in receiving money from the collection of payments, principal, or interest from homeowners. “
    • In truth, the report is entirely printed out from data received exclusively from FiServ data processing servers and storage servers which are owned, operated and maintained by FiServ which provides services (“servicing”) to and for the exclusive benefit of investment bankers who have no legal right to administer, collect or enforce any debt.
    • In truth, when the robowitness says he or she is familiar with the records of his or her employer what they really mean is that they’re familiar with a script and know absolutely nothing about the operations of their employer because their employer does not want them to know anything. (This is how many such witnesses are “blown up” on the witness stand by hundreds of lawyers across the country.)
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So for purposes of this discussion, a payment processor is a company that processes payments — i.e., something that is actually happening and something that they are a direct party to witness the actual occurrence of actual events and recording them. A “servicer” is a company that services payments from the homeowner and accounts for its actions by recording data on its own records regarding said receipt.
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If they have not done that, then they’re not a servicer in the conventional use of the word, even though the statutory definition for purposes of statutory liability to consumers is much broader. That statutory definition (augmented by regulation X) does not mean that they received any payments nor recorded any such receipt.
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Use of that statutory definition as a basis for misleading the court about the role of the company named as servicer and the origin of the information will eventually become, in fairly short order, the subject of a series of actions by state bar associations, the FTC and the CFPB. Insurers of lawyers have already inserted sufficient cover language to deny coverage for intentional misdeeds. Since the company named as “servicer” is not “servicing” any unpaid loan account receivable (which it will be revealed does not exist) they have no right to testify about it, much less the balance or record of payments.
*

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

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Once the homeowner has effectively admitted that there is an unpaid loan account receivable exists (without any information), admits that the third party company is a servicer (without any information), and admits that the bank named is the trustee of a trust (without any information), and admits that the trust owns an unpaid loan due from that homeowner or even argues about which trust owns the loan, what choice do I have as a judge but to rule that those facts are, for purposes of the case in front of me, the facts of the case?
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Litigation is about offense and defense. The purpose of defense is NOT to let the evidence in or to find ways to get it out. It is not to prove that the lawyers or anyone else are corrupt, evil, or belongs in jail. Once you make that allegation and can’t legally prove it, you will lose all credibility on the main point — defense. And that will cost you the opportunity to make a ton of money on wrongful foreclosure.
================
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. 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 it is important that it is not PennyMac or Ocwen etc. (It’s usually Fiserv)

The biggest problem for nearly everyone viewing these pages is that besides the legal and financial jargon, the concepts are difficult to understand. So I keep getting questions and comments that basically amount to “So what” What difference does it make whether the named servicer is performing those functions or it is someone else?”

The simple answer is that if you want to keep your home, or if you want to pursue the real gold in the deal you signed, then understanding the difference is key to a successful conclusion. One of my contributors just wrote to me (I can’t remember which one) that she finally got it: this has been all about selling certificates and debt collection — without the debt. She’s right. And why should homeowners be making scheduled payments on a debt that not only does not exist but should not exist?

If you were paid to execute and issue instruments that were part of the sale of certificates to investors, then why should you pay it back, much less with interest? The sales and trading of those certificates and other derivatives based on the existence of those certificates results in at least $12 for every $1 paid to homeowners at “closing.” So homeowners were paid 8% of the deal. But if they are required to pay that back then they’re paid nothing —- and if they are also required to pay additional money (falsely labeled “interest”), they are paid less than nothing.

So some of our intrepid contributors, Summer Chic especially have been pressing the issue. and she has squeezed out some admissions that are very revealing and which regulators as usual are ignoring. So here is what I wrote to her about pressing further:

I think you need to get their attention by starting off with something they might care about. Everything you’re saying is correct but I think it would have far more punch if you said that you believe you have uncovered civil and criminal acts of conspiracy conducted for profit and that the representations we have all previously taken as true are not true. Specifically, you have been subject to claims by PennyMac that it was either the owner or servicer of an unpaid loan.

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Correspondence, statements and notices were sent to me not by PennyMac but by another company, Fiserv, who is a payment and ATM processor. Based on what they now admit, and my research, FiServ receives, processes, and accounts for payments from homeowners, depositing the money into an account controlled by an investment bank that uses it not to reduce the balance of any claimed loan account, but as operating capital.
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But it is PennyMac whose name is used to present evidence in a court of the right to administer, collect and enforce the alleged loan. And it is a “representative” (robowitness) who provides testimony that is intended to establish the existence of PennyMac business records in order to justify foreclosure.
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There are no PennyMac business records related to receipt, processing, or disbursement of payments received from homeowners. All of that data is input by Fiserv people and systems. Fiserv work is NOT contractually governed by any relationship with PennyMac.
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This enables investment banks who have no financial stake in the alleged loan to control and receive the money, instead of whoever is named as a claimant in any attempt to administer, collect or enforce the alleged loan. It is the keystone in setting up an infrastructure of sham conduits to conduct debt collection activities on what is probably a non-existent debt — i.e., there is no company or person who maintains a loan account receivable due from the homeowner to anyone. There are only reports issued by PennyMac that are claimed to be “servicer” reports of activities never performed by PennyMac. 

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There is not a single “REMIC Trustee” foreclosure in which the REMIC Trust or Trustee has ever received a single penny of homeowner payments or proceeds from the forced sale of their property. It does not happen and it is not intended to happen. the money from foreclosures is distributed as compensation to multiple foreclosure players.
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This is vitally important in court if you know what to do with it and it completely accounts for why there are major battles over discovery on items that before the era of “securitization” were routinely delivered to the homeowner or their attorney upon request. The reason is simple: If they open the door to discovery and release all the information required by statute, then they will reveal the absence of any existing unpaid loan account receivable on the books of any creditor.
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In order to sell the data from homeowner transactions multiple times, they had to avoid the fraudulent practice of selling the same transaction multiple times. That meant there was no sale and frequently no funding at all even at origination and even though homeowners were led to believe that money had exchanged hands. But in order to “enforce” the nonexisting “loans” they had to create the impression that the loan not only existed but was being bought and sold in the “secondary market.”
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Those “sales” never occurred. And that is why the entire industry turned to the fabrication of false, forged, backdated and robosigned documents to create the illusion of a loan market when in fact they were trading in deception.
  • Fabricated because there was no purchase and sale of the debt, note or mortgage.
  • False because it reported a transaction that never existed.
  • Forged using stamped or mechanical signatures so nobody could be pinned with signing it
  • Backdated because they were constructing an alternate fact universe in retrospect
  • Robosigned using stamped or mechanical signatures so nobody could be pinned with signing it

The grotesque error of the last 4 presidential administrations — Bush, Obama, Trump, and Biden — is the failure to reign in the banks and to allow them to compound the fractures they caused in our society.

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Does that help?

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

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

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

Please visit www.lendinglies.com for more information.

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