It is NOT the job of the court to answer your questions

Posted on April 21, 2023 by Neil Garfield

People familiar with my victories in court frequently ask for a list of generic questions that they hope will work in every case. Lay people are not rained to think within the context fo the rules of civil procedure or motions required to force the opposing side to comply with those rules.

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There are plenty of POSSIBLE questions and plenty of ways to ask them. But there is no list that is one size fits all. It MUST be tailored to the specific case. Some of the questions are obvious from my prior correspondence.

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But if you want me to participate in creating strategy and preparing a lawyer for court, then I will need a teleconference with the lawyer to figure out what the lawyer thinks he needs. In the course of that conversation, which is recorded and creates an AI transcription, the lawyer should be able to get all they need.
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But to be clear, there is no list of questions unless you are attempting to establish the merits of a particular defense; and you must be asking those questions to someone who has a legal obligation to answer. 
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Many homeowners lose in court and start complaining about corruption in the courtroom, saying that their questions were never answered. The foreclosure is not about your questions. It is about whether you owe money to the party who the lawyer says is making a claim against you.
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Every claim must assert or imply injury to the claimant. Every claim must assert or imply that the lawyer represents the claimant as a creditor to whom the debtor/homeowner owes money.
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All questions from the defense relate to testing the truth of those matters asserted or implied. Possession of the note, for example, implies that title to the underlying obligation was also transferred and that a party with the power to enforce has transferred that power to the transferee.
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In reviewing thousands of cases claiming the right to foreclose and take possession, I have not seen a single case since 2004 in which any proof of those simple elements was ever offered to the court — including in thousands of cases where the court entered an order requiring compliance.
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That leaves an unanswered question. But under the laws of procedure, noncompliance proves nothing unless the defender/homeowner aggressively pursues enforcement of the rules and the court’s orders. 

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

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

Neil F Garfield, MBA, JD, 76, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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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 14 years or more. In addition, although currently rare, it can also result in your homestead being free and clear of any mortgage lien that you contested. (No Guarantee).

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

Please visit www.lendinglies.com for more information.

Filed under: foreclosure | Leave a comment »

Biggest U.S. Banks Report Bumper Profits Amid Industry Turmoil

Posted on April 20, 2023 by Neil Garfield

The mega banks are reporting higher profits that were most likely created years ago and stuffed into offshore repositories in off balance sheet transctions. From 1998 to 2008, they siphoned trillions of  dollars out of the US economy using worthelss and faslely represented “Mortgage-backed bonds.”

How is it that both manufacturing and services declined over the last 40 years while the banks reported gains from the creation, issuance, sale, and trading of securities related to the US eonomy?

How is it that the financial sector accounted for about 16% of US GDP in 1970’s but now accounts for nearly 50%?

Does any of this make sense? Why is the Fed suporting a flasely portrayed financial sector? Can we ever make a landing without returning to fundamental economic values?

https://www.nytimes.com/2023/04/14/business/jpmorgan-citi-wells-fargo-earnings.html?smid=nytcore-ios-share&referringSource=articleShare
Biggest U.S. Banks Report Bumper Profits Amid Industry Turmoil

Filed under: foreclosure | 2 Comments »

Is Modification Legal?

Posted on April 19, 2023 by Neil Garfield
You are completely correct to say that modification of a contract is not possible without the parties to that contract agreeing to modify. Even a court may not modify that contract unless it contains something that is patently unlawful.
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And in the case of documents proffered by lawyers who imply that they have been retained by and represent a company that is a legitimate creditor, their use of the label “modification” is false and most likely fraudulent. This is true because the lawyer does not represent the designated “creditor” and never actually said he or she did represent them. The lawyer also does not represent the “servicer” in most instances and never actually says he or she did represent them.
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The effect of such documents, if executed, is not to modify an existing agreement between the parties but rather to create an entirely new transaction in which the homeowner receives no consideration from the counterparty (i.e., the company that is falsely implied to be performing servicing functions).
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Thus the falsely labeled “servicer” becomes the apparent creditor. This is the same thing as filling in the name Donald Duck on all the documents. It is a fictional character creating an opportunity for moral hazard. Or, more specifically, it is similar to an endorsement in blank.
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So theoretically, it is correct to denounce the offer of modification as a fraudulent act.
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BUT I have had several situations where the homeowners accepted the modification knowing full well that it was illegal and fraudulent. The reason is simply that the criminal is agreeing to stop hitting you if you sign. Some offers of modifications, in the context of the current erroneous understanding of securitization, discount the amount due up to 90% and even provide for the payment of money to the homeowner.
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Faced with the certainty that the criminal will continue its illegal behavior if they do not sign, homeowners are apt to choose an extortionate demand for “settlement” of a claim that does not exist. As the attorney for such a homeowner, it is hard to advise the client to continue with litigation where the outcome is at best in doubt when the offer is roughly equivalent to the removal of any claim on the nonexistent debt.
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The principal point to remember harkens back to the securitization structure. None of the players involved care one bit about payment of the nonexistent implied loan account. The value of that account, even if it was real, pales in comparison to the superstructure of false representations as “securitization” above it.
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The meaningful settlement, therefore, can only occur when the homeowner is successful at presenting a credible threat to the false securitization infrastructure. The “securitization” players will do anything to keep the securitization structure alive. The value of that runs as much as 40 times the amount demanded in the false claim for enforcement.
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There are several strategies to create that threat. I have discussed those on the blog, and I can give guidance on those in ongoing litigation. But the thrust of ALL the strategies and tactics is dependent upon one simple fact: the company, bank, person or business entity that has been named or implied as owning an unpaid loan account due to them from the homeowner does not own it, and will not warrant or assert that it owns the claim or is in any way directing the claim or otherwise expecting anything of value from the outcome of the enforcement.
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But if there is no demand that they do so, the case will proceed as though their involvement is unnecessary. In most cases, this is a matter of jurisdiction. Jurisdiction is the authority of a court to decide any issue. No court can make a legal decision that it has such authority if it does not. And all acts conducted as though it had authority when it did not are void (NOT VOIDABLE). So jurisdiction can be raised at any time — even on appeal.
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In a case where the court has no evidence supporting the argument that the current “creditor” has purchased the underlying unpaid loan account receivable (as required under 3-203 UCC, adopted verbatim by all states).
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Consideration is also required under Article 3 UCC because a holder is (a) one who has proof of the receipt of the original note before it was declared in default and (b) when it has received the note and the authority to enforce it from someone who had that authority. Very few lawyers or judges have gone so far in analysis to realize that without evidence of such authorization, the case fails if it is contested.

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Foreclosure “default” Lawyers are told to argue AS IF they were representing a holder in due course without ever saying that. It usually works like a charm until they oppose the older lawyers who know the UCC. There is no holder in due course unless the note was purchased for value without knowledge of the maker’s defenses and in good faith. None of those elements are present in modern foreclosures.
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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, 76, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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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 14 years or more. In addition, although currently rare, it can also result in your homestead being free and clear of any mortgage lien that you contested. (No Guarantee).

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

Please visit www.lendinglies.com for more information.

Filed under: foreclosure | 1 Comment »

CFPB Issues Guidance on Abusive Conduct Under Federal Law

Posted on April 18, 2023 by Neil Garfield

Most homeowners will continue to ignore such pronouncements that fail to give relevant examples.

Most lawyers are too lazy or presumptive to research the issue and seek advice from experts who actually are competent to comment on investment banking applied to the loan market.

But since the implied unpaid loan account does not exist and the designated party as claimant expects no payment, they are missing out on easy enforcement of obviously abusive behavior — including attorney fees and costs under the FDCPA and RESPA.

Obviously, you need to bolster your case with a QWR and DVL, a follow-up QWR and DVL, a complaint to the State AG and a complaint to the CFPB. That is what enables you to add that you have exhausted all other available remedies.

But once you have completed that, together with a binder of statements and notices, you can make the credible (and true) allegation that these parties are participating in a scheme to obtain a remedy based upon the implied representation of a false fact — that the homeowner owes anything to any of them.

In this policy statement, the CFPB sets forth how abusive conduct generally includes (1) obscuring important features of a product or service or (2) leveraging certain circumstances—including gaps in understanding, unequal bargaining power, or consumer reliance—to take unreasonable advantage. In particular, the statement describes how the use of dark patterns, set-up-to-fail business models like those observed before the mortgage crisis, profiteering off captive customers, and kickbacks and self-dealing can be abusive.

Read the Statement of Policy Regarding Prohibition on Abusive Acts or Practices.

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

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

Neil F Garfield, MBA, JD, 76, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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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 14 years or more. In addition, although currently rare, it can also result in your homestead being free and clear of any mortgage lien that you contested. (No Guarantee).

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

Please visit www.lendinglies.com for more information.

Filed under: foreclosure | 1 Comment »

Nothing Is Obvious or Clear in Court Until You Make It So

Posted on April 18, 2023 by Neil Garfield

Hat tip to Elle

She raises probably the most important problem confronting homeowners in conflict with pretender lenders. “what if the witness is clearly lying, but it is affecting the judgment of the presiding judge?”

The procedural answer is that even if it is clear to you and the rest of the courtroom, once the judge says the light was green, the traffic light was green for all legal purposes — even if it was red. You can counter that narrative, but you need to be pretty good at trial techniques.

The issue is your choice of words, “clearly lied.” The judge’s decision trumps your description of “clearly lied.” Once the judge says it is credible, it is a fact for the purposes of that specific case.

In court, you either have admissible evidence that is properly presented in support of the truth of the matter asserted or implied, or you don’t.

When it comes to lying or fraud, the stakes are high, and so is the burden of proof. It is not enough to imply lying. You must present evidence of a specific material and relevant fact that was said in a specific context at a specific time.

Then you produce clear and convincing direct evidence that the statement was wrong, factually like a traffic light being either red or green. Then you must show that the speaker knew it was false and was intentionally making the false statement to affect the behavior of someone who reasonably relied on that statement to their economic detriment.

PRACTICE NOTE: Within the context of foreclosure litigation, the way to attack a witness who is “clearly lying” is to raise objections before they can answer or argue the objection and motion to strike if they snuck in the answer.

The lying witness in foreclosures does not know anything. So objections are based upon personal knowledge, lack of asserted familiarity with records that do not qualify as business records, and hearsay. Once you remove the foundation for the question, the witness’s testimony is excludable upon motion.

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

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

Neil F Garfield, MBA, JD, 76, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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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 14 years or more. In addition, although currently rare, it can also result in your homestead being free and clear of any mortgage lien that you contested. (No Guarantee).

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

Please visit www.lendinglies.com for more information.

Filed under: foreclosure | Leave a comment »

Only unbridled arrogance could produce a statement like this

Posted on April 17, 2023 by Neil Garfield

Under the category of “WAIT! WHAT?

The Securities and Exchange Commission’s (SEC) renewed proposal to prohibit conflicts of interest in securitizations is critically flawed and would impose significant impediments to the ongoing functioning of the assetbacked securities market, industry advocates said recently.

Seee https://asreport.americanbanker.com/news/damage-to-financial-markets-and-economy-feared-from-secs-abs-proposal

It is astonishing that anyone could say that with a straight face. The fact is that the entire value proposition that certificates sold under the name “Mortgage-backed securities” is based on conflicts of interest.

The certificates do convey any right title or interest to the purchaser of the certificates. AND the certificates are uncertificated, depending wholly upon “record-keeping” by the mega banks, which is not audited.

Mortgage data is a reference point in the prospectus, but no recital of a transaction in which any right, title, or interest was ever transferred — all recitals refer to future events. No reference to any purchase transaction.

So mortgage liens, deeds of trust, assignments of mortgage, and endorsements are not legally or even tangentially involved in the issuance or sale of the certificates.

Next is the word “Backed.” Those certificates are not backed by anything other than the sole unfettered discretion and free will of the investment banks that issued them while they were inventing the names of common law trusts ore ven statutory trusts that did not exist with respect to any payment, debt, note or mortgage ever issued by a homeowner.

Lastly is the word “securities.” Of course, they are securities. But they were removed from that classification by laws that repealed Glass-Steagal in 1998, signed into law by Bill Clinton (hopefully with a pen). So they are not legally securities even though everyone keeps referring to them as securities.

And through the use of 15D filings, the investment banks gain access to SEC.cov to upload documents that are NEVER reviewed for compliance with any law because no law applies. Then the lawyers tasked with arguing for foreclosure download those documents with the sec.gov website in the heading of the document. The homeowner, the court, and even the homeowner’s lawyer is none the wiser, as the lawyer asks the court tot ake judicial notice of a government document, which it is not.

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

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

Neil F Garfield, MBA, JD, 76, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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FREE REVIEW: Don’t wait, Act NOW!

CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us. You will receive an email response from Mr. Garfield  usually within 24 hours. In  the meanwhile you can order any of the following:

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

Click here for Administrative Strategy ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
CLICK HERE TO ORDER CASE ANALYSIS 
*

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

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

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

Please visit www.lendinglies.com for more information.

Filed under: foreclosure | 2 Comments »

How to use the statutory definitions of the word “servicer”

Posted on April 14, 2023 by Neil Garfield

Hat tip to summer chic. I might add a hat tip to some State and Federal agencies that are waking up and trimming the edges around the false claims implied to support the remedy of foreclosure. Things are changing — and before the banks manage to use their influence in state and federal legislatures, homeowners would be doing themselves and everyone else a favor if they went on the attack now.

Getting down in the weeds is what wins. For about 2 decades or longer, lawyers have been claiming to represent companies that are implied to be creditors and companies that are implied to be servicers. In truth, the lawyer does not represent either one, and neither of those companies has ever touched a single penny of the payments tendered by homeowners.

The word “servicer” has been used to define any company that claims to be a servicer and who satisfies one of several elements.

One element is that it claimed to have physical possession of the implied loan file, including the promissory note.

Although untrue, this has always been implied and largely unchallenged by homeowners, thus forcing the court to rule in favor of the lawyer implying the existence of a claim.

The second condition is always argued but never true. That is, the company implied to be processing payments from the homeowner ahs inf act been doing so. Therefore its records of such are admissible as business records, and those business records are easily admitted into evidence against the homeowner as an exception to the hearsay rule. Until 2022, this was a somewhat gray area.

But in 2022, the Consumer Financial Protection Board changed all of that. It said that any company that was in fact, receiving and processing payments from homeowners was a servicer. This made sense since the record of payments could only come from transactions between the company receiving the payments and the homeowner who tendered such payments.

But companies like CoreLogic et al (FINTECH) continue to argue that they are NOT servicers because they do not own or hold the implied underlying obligation or any documents pertaining to the transaction with the homeowner. Most homeowners and lawyers back off simply because they don’t know the next step. Here it is —-

Servicing means receiving any scheduled periodic payments from a borrower pursuant to the terms of any federally related mortgage loan, including amounts for escrow accounts under section 10 of RESPA (12 U.S.C. 2609), and making the payments to the owner of the loan or other third parties of principal and interest and such other payments with respect to the amounts received from the borrower as may be required pursuant to the terms of the mortgage servicing loan documents or servicing contract. In the case of a home equity conversion mortgage or reverse mortgage as referenced in this section, servicing includes making payments to the borrower. 12 USC 1024.2

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This is a perfect example of what I have been saying for about 15 years. CoreLogic is saying that the word “servicer” applies to any company that owns or holds the obligation defined by the note. They are attempting to introduce allegations of fact without offering any proof and without any request for a hearing or a court order. Neither one is permissible under the rules of procedure. The motion is at best premature and should be denied.
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It is the same fraudulent presumption that has allowed lawyers who implied that they represent companies that were named as “servicers” to create the false and fraudulent presumption that such companies possessed records of transactions with homeowners.
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Many victorious homeowners went home after winning wondering why they won. It was because of the hearsay rule that, in these circumstances, bars the introduction of reports by a person or entity that has NOT done any business with the homeowner. Such records are, therefore, not business records, and they are not an exception to the hearsay rule. Hence they are inadmissible.
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Next, The putative lawyer for CoreLogic ignores the above definition from the same statute that they quote. This statute expressly and unequivocally closes the loophole. Any company that is receiving, accounting, processing, or distributing payments received from homeowners is a servicer regardless of whether they own or hold any alleged obligation purportedly due from the homeowner.
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The court has no authority to change, alter, or amend the contents or consequence of the Federal Statute in the absence of a specific and express finding of ambiguity allowing it to interpret the intent or content of the statute.
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Accordingly, both their motion to dismiss and future motion for summary judgment should be denied to the extent they rely on the proposed “fact” that CoreLogic is not a servicer. It is a servicer, and it has been treated as such since May, 2022 under rules promulgated by the CFPB. The issue is settled.
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PRACTICE HINT: Every time opposing counsel uses the word “servicer,” “creditor,” or “holder,” the objection is that counsel is attempting to use facts that are not in evidence.
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DID YOU LIKE THIS ARTICLE?
Nobody paid me to write this. I am self-funded, supported only by donations. My mission is to stop foreclosures and other collection efforts against homeowners and consumers without proof of loss. If you want to support this effort please click on this link and donate as much as you feel you can afford.Please Donate to Support Neil Garfield’s Efforts to Stop Foreclosure Fraud.
CLICK TO DONATE

Neil F Garfield, MBA, JD, 76, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
*
FREE REVIEW: Don’t wait, Act NOW!

CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us. You will receive an email response from Mr. Garfield  usually within 24 hours. In  the meanwhile you can order any of the following:

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

Click here for Administrative Strategy ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
CLICK HERE TO ORDER CASE ANALYSIS 
*

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

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

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

Please visit www.lendinglies.com for more information.

Filed under: foreclosure | Leave a comment »

Just How Much is a Mortgage Lien Enforceable After Bankruptcy Discharge

Posted on April 13, 2023 by Neil Garfield

The basic premise is that the debt is NEVER discharged. It is only the ability of the owner of the underlying debt to enforce that debt that is discharged. Thus the owner of a lien may still enforce the lien after BKR discharge. The only exception would be a finding in Bankruptcy court that the claim is not secured by the claimed lien in favor of a particular creditor.

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All laws and case precedents consistently state that the lien survives bankruptcy. That is because bankruptcy law was enacted for fresh starts on the part of the debtor and the protection of creditors as the bankruptcy estate is liquidated.

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But I agree that theoretically creates a gap.
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If the lien remains and the same creditor claims a right to enforce a debt, then that creditor can go after the same debtor, this time simply by changing a label: from debtor to owner. So to save the property, the Owner must pay off the demands of the purported lienholder. This is something that could be raised de novo. It has always been an inherent conflict.
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In addition, the discharge probably DOES extinguish the note but not the lien, even under current law. The note and the underlying obligation are said to be merged upon the maker of the note executing that instrument. Since the debt is discharged (i.e., it cannot be enforced against the debtor), it should be argued that since the note is only evidence of the debt and not the debt itself, the note has been discharged. This causes no prejudice to a party who owns the underlying debt and whose right to foreclose is already preserved.
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So the attempt to foreclose AFTER DISCHARGE could only be supported by proof of ownership of the underlying unpaid alleged loan account receivable WITHOUT RELIANCE ON THE NOTE. Proof of ownership can ONLY be payment of value (or proof of a gift). Keep in mind that the transfer of a note that is already claimed to be in default does not allow for the treatment of the note as a negotiable instrument (Article 3 UCC). Once again, the proponent must prove ownership of the underlying loan account.

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

Neil F Garfield, MBA, JD, 76, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
*
FREE REVIEW: Don’t wait, Act NOW!

CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us. You will receive an email response from Mr. Garfield  usually within 24 hours. In  the meanwhile you can order any of the following:

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

Click here for Administrative Strategy ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
CLICK HERE TO ORDER CASE ANALYSIS 
*

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

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

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

Please visit www.lendinglies.com for more information.

Filed under: foreclosure | 1 Comment »

Why Courts Enter Judgments Based upon False Facts

Posted on April 12, 2023 by Neil Garfield

I frequently get provocative letters explaining to me that the entire system is corrupt and that it is futile to contest actions undertaken by the mega banks or their intermediaries. In turn, these letters frequently go out to others and become the norm in exchanges of information between uninformed people.

These letters are getting increasingly frequent as I zero in on the real cracks in the illusion of armor presented by those banks (through intermediaries and regional law firms who are clients of the foreclosure enforcement law firms). Yes, that is right. The law firm presenting the claim against you is presenting another law firm, not the designated creditor.

Homeowners get particularly incensed when the opposing attorney supposedly writes a letter containing bald-faced lies.

*

But here is where training, education, and experience enter the picture. Trial Lawyers, not homeowners, know that her assertion that she represents PennyMac is subject to challenge — and that there is no automatic foul in the enforcement lawyer saying it even if it is untrue. Our system works on a process, not an “everyone knows” premise.
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People always file unprovable claims in court, even with sworn affidavits. Our system, based on process, requires the court to accept such claims as completely true if the Defendant or adversary files a motion to dismiss. There is no point in contesting that process. It is the only one we have.
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Our procedural system allows for final judgments to be entered based upon false allegations, false facts, and fraudulent conduct.
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In the absence of an aggressive and persuasive defense offered by Defendant, that is exactly what will happen. The banks knew this and weaponized this so many times that they created the illusion that there was no defense since very few homeowners defended against notices of default and foreclosures.
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In this process, the lawyer is not obligated to tell the truth, the whole truth, and nothing but the truth. The lawyer is usually not sworn in as a witness and is therefore not considered to be testifying in a letter or oral argument.
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The lawyer’s sole obligation is not to argue or present evidence knowing that it is false and/or fraudulent. The fact that they could have known or even must have known is generally insufficient for holding the lawyer accountable for misleading statements.
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The entire system is based solely on adversarial evidence and argument, not the underlying truth of the matter decided by the judge based upon questions posed by the defendant.
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The after-judgment cry by homeowners that the judge did not answer questions or that the opposing attorney did not answer questions is an avoidance of legal procedure. The decision will be upheld on appeal even if the judges on the appellate panel agree that they would have decided the case differently. That is the way the system was established.
===============
*
DID YOU LIKE THIS ARTICLE?
Nobody paid me to write this. I am self-funded, supported only by donations. My mission is to stop foreclosures and other collection efforts against homeowners and consumers without proof of loss. If you want to support this effort please click on this link and donate as much as you feel you can afford.

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

Neil F Garfield, MBA, JD, 76, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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FREE REVIEW: Don’t wait, Act NOW!

CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us. You will receive an email response from Mr. Garfield  usually within 24 hours. In  the meanwhile you can order any of the following:

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

Click here for Administrative Strategy ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
CLICK HERE TO ORDER CASE ANALYSIS 
*

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

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

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

Please visit www.lendinglies.com for more information.

Filed under: foreclosure | 1 Comment »

How Wall Street Banks Use SEC.GOV as a Billboard for Faking MBS

Posted on April 11, 2023 by Neil Garfield

Digging Into a $344 Billion Investing Mystery
Preposterous claims in private investment offerings illustrate an important point about red-hot ‘Reg D’ securities: No one is checking to see if the details in these filings are even remotely true

Read in The Wall Street Journal: https://apple.news/AgZkHAedTT3uDltWufgHMSg

Periodically, I warn lawyers, homeowners, and forensic auditors not to fall into the trap set by the mega banks but made available as such by the US Government. Suddenly 12 years after it was first proposed, a new rule is headed for enactment in which the SEC closes that loophole.

This poses two problems for the mega banks.

The first issue is that they can no longer file utter nonsense on sec.gov and claim it to be a government document. This means that if they want to enforce a debt, note, or mortgage against the homeowner, they will be unable to prove up such documents under the doctrine of judicial notice. And THAT, in turn, requires a witness to (a) authenticate the document and (b) assert its validity for proving the truth of the matter asserted. That witness cannot come from the dumb “servicer” who knows nothing and does nothing.

So the lawyer who initiated the case needs a second witness or a witness from the party designated or named to be the creditor making a claim of default against the homeowner.

But that brings up another problem altogether. Because the designated “creditor” is not making any claim nor expecting any benefit from the lawsuit. That’s right. None at all. That company, bank, or business entity has merely agreed to license its name for the purpose of filing suit. It will not and contractually may not assert any claim to any payment or proceeds of payment, enforcement or forced sale of the homeowner’s property.

So where will this mystery witness come from?

The next problem is that the new rule will effectively sever all ties between securitization and the documents executed by the homeowner and several ties to any creditor or loan account. And in doing that, it will have severed any reasonable basis for paying or changing payment to stupid investors who were conned into believing that the certificates they were buying were (a) securities and (b) mortgage-backed. In fact, those certificates do even require a definite payment over a specific time period. Payments are mostly discretionary, and they last indefinitely until terminated by the investment bank.

The result of this absurdity is that the fake market in which such certificates are subject to delusions that they are tradable (i.e., that anyone who knew the truth would buy them) may well collapse just as it did in 2008.

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

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

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

Neil F Garfield, MBA, JD, 76, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
*
FREE REVIEW: Don’t wait, Act NOW!

CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us. You will receive an email response from Mr. Garfield  usually within 24 hours. In  the meanwhile you can order any of the following:

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

Click here for Administrative Strategy ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
CLICK HERE TO ORDER CASE ANALYSIS 
*

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

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

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

Please visit www.lendinglies.com for more information.

Filed under: foreclosure | Leave a comment »

Collateral lawsuits and Adversary lawsuits in bankruptcy actions

Posted on April 10, 2023 by Neil Garfield
If the party named as claimant or Plaintiff or Beneficiary did not own any unpaid debt and said party, therefore, suffered no economic injury by and through any action or inaction of the defendant or homeowner, then despite the appearance of default, no legal default has occurred even upon declaration of such by a disinterested third party.
1916 article on collateral attacks.
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The bottom line on collateral attacks is that the attack must be based on a theory that ultimately affects a finding of whether the trial court ever had jurisdiction. This means that there was no justiciable issue — one party was injured and alleging that the other party caused the injury.

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If the answer is yes, the court did have jurisdiction, it follows that the court had the authority to hear the case and render judgment even if the judgment is perceived as wrong. Such judgments or actions must be attacked by either post-judgment motions or by appeal (or both).

*

But if the answer is no, the court never had any authority to hear any allegations, facts, or even arguments about the law. The sole action permitted to be taken by the trial judge is dismissal — regardless of when the issue is raised, including on appeal.

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In foreclosure litigation, the custom and practice is the pursuit of a forced sale by claiming rights under the statutory scheme allowing for foreclosure.
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Presumptions indeed arise that the holder in due course of a promissory note, had acquired the underlying debt.
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Presumptions also arise upon an allegation of possession of the original promissory note — and these presumptions are allowable even though the designated claimant is alleged to have physical possession but did not pay for such possession and never received any authority to enforce from the owner of the underlying debt, if any.
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But that is only the case for a party seeking to enforce a promissory note, not in the case where the party seeks to enforce a mortgage deed or deed of trust. This is the difference between Article 3 (negotiable instruments) and Article 9 (secured transactions  — non-negotiable instruments).
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 And it is unequivocally true that foreclosure is meant to enforce unpaid debts. But the allegations that the said claimant is merely a holder and not a holder in due course gives rise to a new presumption, to wit: that the attributes of a holder in due course are not being alleged — namely payment of value in good faith and without knowledge of the maker’s defenses.
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For example, the absence of any allegation or proof of payment of value gives rise to the presumption that no consideration was paid to support any alleged assignment or endorsement. The case is over because the true claimant, if there is one, is neither appearing nor presenting itself as an injured party.
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If no consideration was paid for the right to present a party as a secured creditor, then it may be presumed that no payment was required. If no payment was required, it may fairly be inferred and even presumed that no asset could be purchased or sold.
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If the party named as claimant or Plaintiff or Beneficiary did not own any unpaid debt and said party, therefore, suffered no economic injury by and through any action or inaction of the defendant or homeowner, then despite the appearance of default, no legal default has occurred even upon declaration of such by a disinterested third party.
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Based on my experience and analysis, it is highly unlikely that any adversary claim or collateral claim will yield any positive result unless it attacks the jurisdiction of the court or the status of the declared beneficiary in a nonjudicial case. 

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

Neil F Garfield, MBA, JD, 76, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
*
FREE REVIEW: Don’t wait, Act NOW!

CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us. You will receive an email response from Mr. Garfield  usually within 24 hours. In  the meanwhile you can order any of the following:

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

Click here for Administrative Strategy ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
CLICK HERE TO ORDER CASE ANALYSIS 
*

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

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

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

Please visit www.lendinglies.com for more information.

Filed under: foreclosure | Leave a comment »

Attacks on me are mounting

Posted on April 7, 2023 by Neil Garfield

There is an old expression that the more flack you are getting, the closer you are to the target. The banks are getting nervous —- finally. Their response has been hiring several unqualified independent contractors to post negative remarks about me or my blog or services. This has resulted in many of my readers prompting me to post a defensive statement, which I think is unnecessary — but here it is. —

Attacks on me ALWAYS come from people without credentials, experience or training in investment banking and accounting — all of which are in my resume.

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In 17 years since I began publishing and appearing on radio and TV, no affidavit has ever been filed stating that my conclusions are inaccurate or wrong. My deposition was taken in 2008 for 5 1/2 days 9am to 5PM by 16 banks and 16 law firms.
*

No additional attempt has ever been made to depose me.

*

Every conceivable question was asked about my assertions regarding the lack of any substance to claims of “Securitization,” the role of MERS, and the ability of any named claimant to qualify as a beneficiary under a deed of trust or the successor mortgagee under a mortgage, in addition to title issues.

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None of the questions resulted in any grounds to attack my assertions of fact.

Filed under: foreclosure | 10 Comments »

Ocwen is seen as potential trouble!

Posted on April 6, 2023 by Neil Garfield

From the disclosure statement by Altisource. See https://www.marketscreener.com/quote/stock/ALTISOURCE-PORTFOLIO-SOLU-5506020/news/ALTISOURCE-PORTFOLIO-SOLUTIONS-S-A-MANAGEMENT-S-DISCUSSION-AND-ANALYSIS-OF-FINANCIAL-CONDITION-AND-43381543/

 

Ocwen Related Matters

During the year ended December 31, 2022, Ocwen was our largest customer,
accounting for 41% of our total revenue. Additionally, 6% of our revenue for the
year ended December 31, 2022 was earned on the loan portfolios serviced by
Ocwen, when a party other than Ocwen or the MSR owner selected Altisource as the
service provider.

Ocwen has disclosed that it is subject to a number of ongoing federal and state
regulatory examinations, consent orders, inquiries, subpoenas, civil
investigative demands, requests for information and other actions and is subject
to pending and threatened legal proceedings, some of which include claims
against Ocwen for substantial monetary damages. Previous regulatory actions
against Ocwen have subjected Ocwen to independent oversight of its operations
and placed certain restrictions on its ability to acquire servicing rights.
Existing or future similar matters could result in adverse regulatory or other
actions against Ocwen. In addition to the above, Ocwen may become subject to
future adverse regulatory or other actions.

Ocwen has disclosed that Rithm is its largest client. As of December 31, 2022,
approximately 17% of loans serviced and subserviced by Ocwen (measured in UPB)
were related to Rithm MSRs or rights to MSRs.

The existence or outcome of Ocwen regulatory matters or the termination of the
Rithm sub-servicing agreement with Ocwen may have significant adverse effects on
Ocwen's business. For example, Ocwen may be required to alter the way it
conducts business, including the parties it contracts with for services, it may
be required to seek changes to its existing pricing structure with us, it may
lose its non-GSE servicing rights or subservicing arrangements or may lose one
or more of its state servicing or origination licenses. Additional regulatory
actions or adverse financial developments may impose additional restrictions on
or require changes in Ocwen's business that could require it to sell assets or
change its business operations. Any or all of these effects and others could
result in our eventual loss of Ocwen as a customer or a reduction in the number
and/or volume of services they purchase from us or the loss of other customers.

If any of the following events occurred, Altisource’s revenue could be significantly reduced and our results of operations could be materially adversely affected, including from the possible impairment or write-off of goodwill, intangible assets, property and equipment, other assets and accounts receivable:

•Altisource loses Ocwen as a customer or there is a significant reduction in the volume of services they purchase from us

•Ocwen loses, sells or transfers a significant portion of its GSE or Federal
Housing Administration servicing rights or subservicing arrangements or
remaining other servicing rights or subservicing arrangements and Altisource
fails to be retained as a service provider

•The contractual relationship between Ocwen and Rithm changes significantly,
including Ocwen's sub-servicing arrangement with Rithm expiring without renewal,
and this change results in a change in our status as a provider of services
related to the Subject MSRs

•Ocwen loses state servicing licenses in states with a significant number of loans in Ocwen’s servicing portfolio

                                       33
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  Table of     Contents
•The contractual relationship between Ocwen and Altisource changes significantly
or there are significant changes to our pricing to Ocwen for services from which
we generate material revenue

•Altisource otherwise fails to be retained as a service provider.

Management cannot predict whether any of these events will occur or the amount
of any impact they may have on Altisource. We are seeking to diversify and grow
our revenue and customer base and we have a sales and marketing strategy to
support these efforts. Moreover, in the event one or more of these events
materially negatively impact Altisource, we believe the variable nature of our
cost structure would allow us to realign our cost structure to address some of
the impact to revenue and that current liquidity would be sufficient to meet our
working capital, capital expenditures, debt service and other cash needs. There
can be no assurance that our plans will be successful or our operations will be
profitable.

Filed under: foreclosure | 3 Comments »

15 USC§1635 triggers an event, not a claim

Posted on April 5, 2023 by Neil Garfield

The basic thrust of argument on TILA rescission is that rescission is an event, not a claim. After sending (mailing USPS) the notice of rescission, there is nothing else required on the part of the homeowner. It was passsed in the 1960s to force compliance with lending laws.

15 USC §1635 is effective upon mailing, even if the judge or anyone else thinks it was not sent in good faith, as long as it is within 3 years of consummation of the alleged transction. See Jesinoski v Countrywide (2015 unaimous US Supreme Court decision).

Virtually all foreclosures of the note and mortgage after rescission are and will always be void. Title remains vested in the homeowner. Both title and the right to possession can be enforced by such homeowners by injunction and eviction proceedings.

The only limit to such enforcement is an action by the pretender lender to obtain title by advserse possession which generally carries a minimum of 20 years for the adverse possession of the dispute property. No such action is allowed to be filed in less than 20 years since the the commencement of the “adverse possession” as if the possessor had title.

Lawyers who take a contrary position on behalf of anyone should be subject to sanctions or discipline because they are advancing an argument contrary to settled law.

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TILA rescission is about the regulation of predatory practices in lending or transactions presented as loans when they are driven by other business reasons without notice to the homeowner and in contravention of state and federal laws.
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Because of illegal and other predatory practices by banks and other lenders, Congress was presented with two choices. They could establish a massive new Federal agency to review every alleged loan transaction or enact a statutory scheme that would force alleged lenders to comply with the law.
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As illegal lending practices continued, Congress created a statutory scheme for the enforcement of lending laws by the homeowner that was both procedurally and substantively highly punitive against parties presenting themselves as lenders in a loan transaction. The Courts lack both jurisdiction and authority to change legislation. Court orders that attempt to do so are void, not merely voidable. 
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15 USC §1635 was enacted to enable homeowners to eliminate the note and mortgage, replacing it with a statutory scheme for recovery on the underlying debt if and only if the purported lender was able to comply with the statutory conditions precedent.
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The statute was triggered simply by mailing a notice of intent to rescind. By operation of law, this extinguished the mortgage lien and the note and replaced it with a scheme to recover the underlying debt by a party who owned that debt. But first, the creditor was required to return all money paid by the homeowner, file a satisfaction of lien to clear the title, and return the canceled original note. And, of course, the “creditor” was required to allege and prove that it was the owner of that debt without resorting to the note or mortgage. 
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Despite many court rulings throughout the country, the operation of the statute was triggered as an event, not a claim by the homeowner. Nothing further is required by the homeowner for the statute to operate.
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When confronted by the resistance of lower courts to the outcome of the operation of this statute, the U.S. Supreme Court decided unanimously in 2015 that the courts must follow the statute in Jesinoksi v Countrywide. That decision has never been overturned or amended. Written by Justice Scalia, the court was critical of the reckless manner in which the effects of the statute were ignored.
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This has led to a practical conundrum. The statute voids the note and mortgage, yet many courts are continuing to foreclose the note and mortgage. By law, such actions muddy the title of everyone who has sent a notice of rescission.
============
DID YOU LIKE THIS ARTICLE?
Nobody paid me to write this. I am self-funded, supported only by donations. My mission is to stop foreclosures and other collection efforts against homeowners and consumers without proof of loss. If you want to support this effort please click on this link and donate as much as you feel you can afford.Please Donate to Support Neil Garfield’s Efforts to Stop Foreclosure Fraud.
CLICK TO DONATE

Neil F Garfield, MBA, JD, 76, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
*
FREE REVIEW: Don’t wait, Act NOW!

CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us. You will receive an email response from Mr. Garfield  usually within 24 hours. In  the meanwhile you can order any of the following:

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

Click here for Administrative Strategy ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
CLICK HERE TO ORDER CASE ANALYSIS 
*

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

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

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

Please visit www.lendinglies.com for more information.

Filed under: foreclosure | 3 Comments »

New Partner joins my Living Lies Team

Posted on April 3, 2023 by Neil Garfield

Hello everyone,

I am thrilled to announce that I am welcoming a new partner to our fight against illegal foreclosures throughout the United States. As many of you know, this is a battle that I have been waging for many many years, and I am excited to have found someone who shares my passion for justice and who will help us take our efforts to the next level.

Our new partner Lance Denha esq., brings a wealth of experience and expertise to the table, having worked for years in the foreclosure defense arena. He shares my commitment to challenging the banks and financial institutions that have been exploiting homeowners and profiting off their misery for far too long. Together, we will be able to mount an even stronger defense against these unlawful and unjust practices, and help more families stay in their homes.

I know that many of you have been following my work closely and have been inspired by the countless success stories that we have achieved. We have helped families who were on the brink of losing their homes to fight back against the banks and win, securing their homes and their futures. But there is still so much work to be done, and having a new partner by my side will only make us stronger.

I can’t wait to share more details about Lance with you in the coming weeks. I can tell you that this is a person who truly embodies the spirit of our mission. He is committed to fighting for justice, standing up for homeowners, and taking on the big banks and financial institutions that have been exploiting our communities for far too long.

So stay tuned, and get ready to join us in this fight. Together, we can make a difference and protect the rights of homeowners across the country. Thank you for your support, and I look forward to continuing this journey with all of you by my side.

 

Sincerely, Neil

Filed under: foreclosure | 5 Comments »

SEC does NOT regulate trusts or the issuance of certificates

Posted on March 31, 2023 by Neil Garfield

No trust is regulated by the SEC. No reporting is required of any trust.

But by filing a prospectus, the investment bank gains access to the SEC.gov site. So they upload documents and then download the same documents so they can display the sec.gov in the header. They then falsely argue for judicial notice of a government document.

No document is a government document unless it is created by the government. Since the SEC did not issue the document and never reviewed or exercised any regulatory action, this is not a government document. It is a private document that the lawyers have dressed up to look like a government document. Judicial Watch, Inc. v. Clinton, 880 F. Supp. 1, 11 (D.D.C. 1995) (“documents are typically not agency records under the Act unless and until they are included within material controlled, created, approved and utilized by the agency itself. ”)

Ultimately all filings by the investment bank in relation to the fictitious trusts are followed by a filing that says, “we don’t need to report anything.” In 1998 the regulations were rolled back on the certificates sold to investors in which, by law, the certificates were categorized as private contracts and expressly asserted to be excluded from the category of securities and issuers that were regulated.

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In short, there are no securities, trusts, or government documents in any securitization infrastructure. 

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

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

Neil F Garfield, MBA, JD, 76, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
*
FREE REVIEW: Don’t wait, Act NOW!

CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us. You will receive an email response from Mr. Garfield  usually within 24 hours. In  the meanwhile you can order any of the following:

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

Click here for Administrative Strategy ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
CLICK HERE TO ORDER CASE ANALYSIS 
*

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

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

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

Please visit www.lendinglies.com for more information.

Filed under: foreclosure | 2 Comments »

Are the courts really misbehaving in foreclosure cases — probably not.

Posted on March 30, 2023 by Neil Garfield

Don’t shoot the messenger.

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If we assume that the court is only allowed to rule on allegations that bring the claim it is probably true that homeowner complaints and motions should be denied because mostly they have not attacked the existence, ownership and authority over the implied (but never stated) underlying debt that can only be found in the receivables of the designated creditor.
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In fact, the homeowner usually agrees or concedes that there was a loan, the transaction is still a loan and further concedes that the “servicer” is performing servicing functions on behalf of a designated creditor. That reduces the homeowner’s defense to a “yes but” defense.
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They concede a “default” and then assert a defense that the default doesn’t exist as to one party or another. Then they agree to accept the payment history from the designated “servicer” as a substitute for the unpaid loan account receivable on the ledgers of the designated “creditor.”

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So the court in 99% of cases, is forced to accept the notion that there is a debt, the homeowner owes it to the parties who are named as claimants, and that there has been a default. That being the case, the note is evidence of the transfer of the underlying implied debt, and the claimants are entitled to enforce the note.
*
That being the case, the court is required to enforce the terms of the mortgage instrument allowing the forced sale of collateral. And that judgment is cloaked in a rigid presumption of validity since the goal of the judicial system is to end disputes with finality.
*
But, in cases where the court is presented with a valid attack on the existence, ownership, and authority to enforce the underlying implied debt, that would put the matter in dispute. The court would be constrained to deny a motion to dismiss such an attack but free to enter summary judgment unless the homeowner can show that discovery has corroborated the attack. Or, in the alternative, the opposition is in violation of the rules by having not answered the basic question about the transaction and its current status.
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This is why I blame homeowners and lawyers for being too lazy or not being curious about the transaction. In criminal law, we question everything. In foreclosure defense, it seems we typically question nothing.
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There is one giant exception to what I am saying. As the Supreme Court asserted in Justice Scalia’s ruling in January 2015 in the Jesinoski decision, the statute for TILA rescission applied the moment the notice of intention to rescind is mailed. (Bu the three-year limitation applies as well).
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As Scalia stated with considerable sarcasm about what the lower courts were doing, this does not create a claim. It creates an event. And that event is also established in statute 15 USC §1635 and it is described there.
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The statute says that the mortgage lien and note are immediately extinguished. It requires the next steps to be taken by any party holding the note and mortgage. The party who has title to the lien must file documents satisfying and releasing the lien so that it no longer impairs the homeowner’s title. Such a party must also return the canceled note.
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Lastly, the statute requires, under Federal Law, that the said party pay the homeowner for all payments made in connection with the alleged “loan” transaction. Then and only then may a creditor seek to receive restitution for the implied unpaid debt. But the mortgage lien and note are still dead.
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Notwithstanding that unanimous Supreme Court decision and the “express and unambiguous” language in the enabling statute (see Scalia’s opinion) both claimants and courts have universally allowed the forced sale of homes despite the lack of any legal mortgage lien which was extinguished “by operation of law.” (see Scalia’s opinion).
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Appeals to the Supreme Court have universally been denied certiorari. This is an abuse by the Supreme court for failing to enforce its own unanimous decision in Jesinoski and all the lower courts where Judges failed to dismiss any foreclosure action after a timely notice of rescission. So, in that case, the courts are acting wrongfully and willfully because they don’t like homeowners given that power.
=============
DID YOU LIKE THIS ARTICLE?
Nobody paid me to write this. I am self-funded, supported only by donations. My mission is to stop foreclosures and other collection efforts against homeowners and consumers without proof of loss. If you want to support this effort please click on this link and donate as much as you feel you can afford.

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

Neil F Garfield, MBA, JD, 76, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
*
FREE REVIEW: Don’t wait, Act NOW!

CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us. You will receive an email response from Mr. Garfield  usually within 24 hours. In  the meanwhile you can order any of the following:

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

Click here for Administrative Strategy ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
CLICK HERE TO ORDER CASE ANALYSIS 
*

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

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

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

Please visit www.lendinglies.com for more information.

Filed under: foreclosure | 1 Comment »

How to attack title to a mortgage lien

Posted on March 29, 2023 by Neil Garfield

Several steps should be taken to attack any document that does not include a warranty of title to the lien and authority to enforce.

You attack the title to the lien under the premise that no transfer of a lien is legally valid or even recognizable unless there is a concurrent transfer of the underlying debt.

Transfer of the note is only evidence of the transfer of the underlying alleged debt. My premise is that there is no underlying debt.

You show that by asking for and NOT receiving the proof of the existence, status, and ownership of the underlying implied (but never stated) unpaid loan account.

If there is no loan account, there is no debt — at least for that creditor.

Do NOT accept a payment history as a substitute for the loan account. The payment history only implies the balance due. Only the actual loan account (if there is one) will show the actual balance due. You should only rely on the unpaid loan account receivable on the accounting ledgers of the designated “creditor.”

Do not use the QWR or DVL as a substitute for discovery. It creates multiple excuses for them not answering the basic questions about the existence, status, ownership, and authority to enforce the alleged unpaid loan account. Keep your questions to what is expressly provided by RESPA (QWR) and FDCPA (DVL).

The administrative process or strategy includes the QWR and DVL and hones in on the statutorily mandated transparency as to the existence, ownership, and authority to enforce the underlying debt (i.e., the implied — but never stated — loan account).

Their failure to answer the most basic questions about why they are making any claim can be used to file suit and obtain a judgment successfully. More importantly, it opens the door to discovery that might otherwise have been barred by court orders or rules.

If the discovery window is open, you should also hone in on those questions, although you can ask others. Stay within the maximum number of questions allowed by the rules of civil procedure, including subparts.

If the discovery window is not open, then find a way to create the window, including, if necessary, a collateral lawsuit.

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

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

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

Neil F Garfield, MBA, JD, 76, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
*
FREE REVIEW: Don’t wait, Act NOW!

CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us. You will receive an email response from Mr. Garfield  usually within 24 hours. In  the meanwhile you can order any of the following:

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

Click here for Administrative Strategy ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
CLICK HERE TO ORDER CASE ANALYSIS 
*

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

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

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

Please visit www.lendinglies.com for more information.

Filed under: foreclosure | 1 Comment »

When to act on your “mortgage transaction”

Posted on March 28, 2023 by Neil Garfield

Why is “mortgage transaction” bracketed in quotes? Because the transaction is really a draft of homeowners into becoming issuers in a concealed securities scheme. The loan account, part of every traditional loan, is neither created nor transferred. All players are paid off through the sales of certificates that by law are not classified as securities and are not backed by any liens or collateral. So both the “mortgage transaction” and the “Mortgage-backed securities” carry a moniker that denotes the exact opposite of their true intention.

When to act in judicial states? Theoretically, the time to act is before you close, but that never happens because the players have already convinced you that you were applying for a mortgage loan and not signing up for an undisclosed securities scheme in which they take all the profit. You pay back the consideration for issuing the base documents of the securitization scheme with interest (only because they convinced you this was a “loan”).

In judicial states, the first practical time to act pro-actively or defensively is when you receive a statement or notice of default. Homeowners are tricked into believing the default because they stopped making payments.  But the payments they were making were never due to the parties receiving those payments. And the parties receiving those payments are unrelated to the name or business of the designated “servicer.”

The attack should be based on the existence, status, and ownership of the implied (but never stated) unpaid loan account. The answer is never the possession of the note.

In non-judicial states, the time to act is when the homeowner receives and usually ignores the Notice of Substitution of Trustee on the deed of trust. Homeowners ignore it because they think it doesn’t matter. But this is when a designated name is used to pretend that that name is the name of an organization that owns the implied (but never stated) unpaid loan account. They don’t. But if you ignore it, it will be legally cloaked in a presumption of validity.

If the party designated is not a qualified beneficiary under state law because it doesn’t own an unpaid loan account due from the homeowner, then they cannot be the source of any authority to change trustees on the deed of trust.

The attack should be based on the existence, status, and ownership of the implied (but never stated) unpaid loan account. The answer is never the possession of the note.

You cannot complete the challenge without using administrative and court procedures to get evidence of the inability or unwillingness of the designated “creditor” to answer the questions about the existence, status, and ownership of the implied (but never stated) unpaid loan account. Never accept such answers from anyone using the name of the designated servicer. Insist on an officer from the organization designated as “creditor,” e.g., U.S. Bank as trustee, etc.

That means sending a QWR and DVL followed by a follow-up QWR and DVL (when they don’t answer your questions). It means filing a complaint with the CFPB and State AG, both of whom should do something but don’t. Then when you file a lawsuit for breach of RESPA and FDCPA, you can confidently state you have exhausted all administrative remedies.

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

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

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

Neil F Garfield, MBA, JD, 76, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
*
FREE REVIEW: Don’t wait, Act NOW!

CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us. You will receive an email response from Mr. Garfield  usually within 24 hours. In  the meanwhile you can order any of the following:

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

Click here for Administrative Strategy ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
CLICK HERE TO ORDER CASE ANALYSIS 
*

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

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

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

Please visit www.lendinglies.com for more information.

Filed under: foreclosure | 1 Comment »

Emergency: Why the New Article 12 of the Uniform Commercial Code Should Be Rejected

Posted on March 27, 2023 by Neil Garfield

The UCC is a uniform authority on laws governing all transactions. It is adopted by law in all U.S jurisdictions. Transactions with homeowners are governed by Article 3 (Negotiable Instruments) and Article 9 (Secured Transactions).

My attacks on the weakness of the argument for business records of the “servicer” have resulted in the proposed new Article 12, which appears to have been adopted in other states (other than Florida). The new article proposes a new classification that will supersede all common law and statutory law regarding business records.

The new article governs the transfer of property rights in a “controllable electronic record” (CER), which is defined as a record stored in an electronic medium that can be subjected to “control” (discussed below). By definition, a CER excludes any digital assets that are not subject to “control” as well as those that are already subject to other commercial laws such as E-SIGN, the Uniform Electronic Transactions Act or other articles of the UCC. Article 12 also does not address the regulation of any digital assets (e.g., how they are taxed, implications for banking regulations or the prevalent question in the Web3 space as to whether such assets constitute securities). Those involved in the Web3 space will note that the definition does not include any reference to blockchain or distributed ledger technology. This was to make the definition technology-neutral, although the clear intent of the new amendments was to address blockchain-based digital assets. [e.s.]

The introduction of the CER is a thinly disguised attempt to solidify the consensus that the designated “servicer” reports constitute business records and, therefore, an exception to the hearsay rule.

As pointed out on this blog, the Payment History report issued under the name of a company that is proffered as a “servicer” are not business records since they are not a record of any business conducted by that “servicer.”

The Payment History purports to be a record of payments received from the homeowner.  But since that function is not performed by the “Servicer” and is instead performed by financial technology companies (now designated as “servicers” by CFPB as of May, 2022), there is a complete lack of foundation to the introduction of such a report issued under the name of the “Servicer.” It is inadmissible under current rules of evidence.

By creating the new classification of CER, the door is opened to changing all common law and statutory law governing evidence — thus solidifying the death grip that investment banks have in foreclosures that are not filed for restitution of an unpaid debt but instead are filed for profit.

The new amendment also acknowledges but excludes “Controlled digital assets.” This is a disguised effort to legalize that which has been illegal. If the assets are  digital (virtual), they are not actual. The “digital assets” are merely representations of the actual. In foreclosures, the asset is always the unpaid loan account.

For nearly two decades, most courts have erroneously allowed the “Payment History” report issued under the name of the alleged “servicer” into evidence despite the fact that the company designated as “Servicer” never received or processed any payments from the homeowner.

This amendment is an attempt to create a grey area that the investment banks can exploit for profit by filing for foreclosures — through intermediaries — despite the fact that none of the players own any loan account (which was retired in the process of what Wall Street calls “Securitization”).

Ownership of the loan account is essential under the U.S. Constitution, which provides for court jurisdiction over any justiciable issue. A justiciable issue has been universally accepted as an issue in a dispute wherein one side has been injured, and the other side has caused the injury. In foreclosures, it is only a missed payment that causes devaluation of the loan account that is justiciable.

Write your state Senators and House representatives immediately.

Filed under: foreclosure | Leave a comment »

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