“I challenged that and the judge completely ignored the report and my challenge”: How homeowners without knowledge of legal requirements for practice in court lose cases they could have won.

People often tell me that they challenged something in court and that the judge completely ignored their challenge. The problem is that most people don’t know the elements of a legal challenge in court. Based upon my review of transcripts, reports, and proffers of evidence and testimony, nearly all such cases consist of raising questions in the expectation that the judge will answer the question.

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Not only is that not within the job description of a judge, it is expressly prohibited. The judge may not act as an advocate for either side. The judge can only act upon the presentation of evidence and argument that is properly brought before the court. Although there is wide latitude for discretion by the court, any action or statement by the court that clearly shows that the judge is attempting to guide one side or the other toward the correct presentation will ordinarily be considered the foundation for a claim of bias and a motion for recusal.

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Although I vigorously disagree and dissent from the action taken by the third District Court of appeal in Miami and removing a judge from a case, allegedly for bias in favor of the homeowner, the decision is not without a legal basis.
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The attorney for the homeowner was treading the new ground and frankly failed to connect all the dots necessary to make it absolutely clear that there was at least probable cause that the documents have been fabricated and forged. It must be something stronger than a question of whether the documents were fake and in nearly all court cases, the burden of persuasion is extremely high. If that was not the case the court docket would be filled with such motions.
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The judge took it a little bit further and set a hearing to show cause why the attorney and the client should not be held in contempt for lying. In a different context, the action by the judge would probably have been affirmed by any appellate court.
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We live in the context of foreclosure litigation where the general consensus is in agreement that the transactions with homeowners were loans, that when homeowners start making payments a default has occurred, and that relief for such homeowners would be contrary to maintaining the sanctity of contract.
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So the action by the judge appeared to be out of context, even though she was right. And being out of context it looked like she was favoring one side over another. In my opinion, she was just exasperated by the flood of fabricated, false, and forged documentation. 

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But I still maintain that the 3rd DCA was wrong. they know by now that there are hundreds of cases in which judgments or settlements have been entered based entirely on the inability or refusal of the foreclosure lawyer to either prove he had a viable client or to prove or corroborate the claim that the named plaintiff or beneficiary had a claim.
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They know and they knew that in such cases the possibility that real transactions in the real world existed that would have supported or corroborated the false documentation was legally zero (if it existed it had to be presented in the trial).
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Every hill seems steepest when you are at the bottom. That is the start of the journey.
***
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Nobody paid me to write this. I am self-funded, supported only by donations. My mission is to stop foreclosures and other collection efforts against homeowners and consumers without proof of loss. If you want to support this effort please click on this link and donate as much as you feel you can afford.
Please Donate to Support Neil Garfield’s Efforts to Stop Foreclosure Fraud.

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Neil F Garfield, MBA, JD, 74, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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CLICK HERE TO ORDER ADMINISTRATIVE STRATEGY, ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
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CLICK HERE TO ORDER TERA – not necessary if you order PDR PREMIUM.
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CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR) (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
  • But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.
  • Yes you DO need a lawyer.
  • If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.
Please visit www.lendinglies.com for more information.

Merry Christmas and Happy New Year

May 2022 bring us security and happiness. 

Let justice prevail!!!

 

And a BIG Thank You to all my readers and

contributors.

I could not keep this up without you guys.

 

Best regards,

 

NEIL

Court is Not a DYI Project

Simple answer: pro se litigants can win and do win.  But they mostly lose and they lose because they know nothing about court procedure. Competent trial counsel knows his or her way through the treacherous waters of litigation. Homeowners want the courts to do the work but that is not their job.

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The cost of hiring competent trial counsel is high. So the question becomes whether the retention of the house, the life-style, marriage, family, and the equity is important enough to fight for. If you are going into a battle you send warriors, not untrained ill-equipped troops who merely hope that being on the right side of history is enough.

Why You Need to Perform Investigation of Real Facts in the Real World

I state with great confidence that among those homeowners who perform and achieve a slam dunk win over the foreclosure lawyers, the great majority enjoy that victory because they did the investigation and hired a lawyer who knew what to do with the information (as opposed to slinging it at the judge and expecting the judge to make sense of it).

Question received from one of the readers of this blog: “I’m trying to understand how a house in NJ.  Is alleged to be notarized in Florida and recorded by a company in Idaho (whose Name of course, is not even in business any longer).”

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SImple answer — none of that happened. I don’t know your case but in all probability, Black Knight fabricated a false document on instructions from a central source controlled by an investment bank. An investigation will reveal whether that statement is applicable in your case. I am willing to bet $100 that it IS true.

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CoreLogic and/or other vendors (probably affiliates of Black Knight) affixed the signature, the notary signature, the notary stamp, and where necessary for local recording rules the signatures of witnesses electronically using direct electronic signature or mechanical pen.

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The name of the company or person was selected by an algorithm based on instructions from the same source. It does not matter that the company is not in business because inserting ANY name makes the document look like it is facially valid. But the document can be challenged as NOT being facially valid because ti is a matter of public record that the corporation’s charter expired, was dissolved or that the company went bankrupt.

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The content of the instrument is false since it most probably states that it is an assignment or an allonge. The rule adopted by all states, and supported by centuries of precedent in statutes and case law, is that a transfer of the mortgage or deed of trust is ineffective (i.e. a “legal nullity”) unless the underlying obligation is also transferred from the same grantor to the same grantee. The fact that someone or some company is named as a transferee does not make them the status of a legal grantee.

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Some people, like Chic, have gone to the trouble of investigating the musical chair scenario that emerges from the use of false or dead-end addresses for what appears to be major businesses, enterprises or even banks that are Federally or state-chartered.
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They have discovered and taken pictures of the locations in which the companies were asserted to exist — although often not directly — by implication from return addresses. Nobody ever says that the letter is coming from the company on the letterhead or that there is any warranty or even assertion of title in such documents.
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It is all implied so that the perpetrators can later claim plausible deniability, to wit: we didn’t do it. That was done by some outsource vendor of Joe’s Documents, LLC and we knew nothing about it. Joe has a recurring source of residual income because he has agreed to let his company name and address to be used even though the address is a loading docket licensed to a private investigator.
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The moral of the story for homeowners is that unless you are in this for entertainment purposes only, you need to act on your suspicions and hire private investigators like Bill Paatalo to actually locate the signors and notaries, track down the supposed addresses, and confirm by fact — not opinion — that the document could not have executed by the party named as grantor and that the grantee was not a legal entity.
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This isn’t divorce court where lawyers makeup facts and hurl accusations. This is a real court where the judge is bound by the evidence. Your opinion is not evidence.
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But I state with great confidence that among those homeowners who perform and achieve a slam dunk win over the foreclosure lawyers, the great majority enjoy that victory because they did the investigation and hired a lawyer who knew what to do with the information (as opposed to slinging it at the judge and expecting the judge to make sense of it).
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See below for an example of allegations that can be made after an effective investigation. Most people have neither time nor the skills necessary to perform such investigations. That is why you need a licensed private investigator to come up with real facts revealing the fake story used as part of a false national narrative with false labels on documents, persons, and business entities that may or may not even exist as registered business entities in any jurisdiction. Yes this is boring work but it is what usually makes the difference between winning and losing.
***
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Nobody paid me to write this. I am self-funded, supported only by donations. My mission is to stop foreclosures and other collection efforts against homeowners and consumers without proof of loss. If you want to support this effort please click on this link and donate as much as you feel you can afford.
Please Donate to Support Neil Garfield’s Efforts to Stop Foreclosure Fraud.

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Neil F Garfield, MBA, JD, 74, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us. In  the meanwhile you can order any of the following:
CLICK HERE TO ORDER ADMINISTRATIVE STRATEGY, ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
*
CLICK HERE TO ORDER TERA – not necessary if you order PDR PREMIUM.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
*
CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR) (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
  • But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.
  • Yes you DO need a lawyer.
  • If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.
Please visit www.lendinglies.com for more information.
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Here are a few examples of investigation that yielded some interesting results:
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The purported “Ocwen Loan Servicing” address traces back to an industrial concrete-block windowless warehouse building with truck docks, of 14,233 sq. ft., internally a self-storage unit building operated by “Security Connections, Inc.” and crafted, as are all other “Ocwen” locations, as blind alleys intended to obfuscate and confuse, leading to dead-ends.

  1. The true picture of 240 Technology Drive, Idaho Falls, showing an industrial warehouse, is incorporated herein:

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The falsified and fraudulent papers crafted as purported “Assignments” and filed on the Stamford Land Records are and were designed by the actors for the purpose of obfuscation and slander of title, and contain inherent false statements such as the claim that Deutsche Bank maintains offices at “1661 Worthington Road, Suite 100, West Palm Beach, Florida,” when if act it does not, and never has.

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William Erbey subsequently re-incorporated Ocwen Mortgage Servicing, Inc., his latest vehicle for mortgage fraud and abuse,  in the British Virgin Islands, claiming a registration address of Waterfront Center, Suite A, 72 Kronprindsens Gade, PO Box 305304, St. Thomas VGB.  That address comes back to the “Trident Trust Company,” a Virgin Islands “brass plate” corporation accommodation address provider, wherein a brass plate screwed onto the door is sufficient to establish corporate existence.  The actual address used by Ocwen in its representations to the public and the courts sources back to a tourist souvenir knick-knack stall located at the foot of the cruise ship dock in the British Virgin Islands.  The souvenir stall is currently boarded up.

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The “588 Assignment” represents that Mortgage Electronic had a place of business at 3300 SW 34th Avenue, Suite 101, Ocala, Florida.  In reality, Mortgage Electronic did not have any business address at that location, and the representation was a falsity.

  1. The signature undertaking on the “588 Assignment” represents that it was signed by one “Paige Helen” as Vice President of “Mortgage Electronic as Nominee for NetBank.”  Despite this representation, the notarial undertaking declares that Paige Helen was in reality an employee of “IndyMac Bank, FSB.”

What is the name of your client, foreclosure lawyer? The answer may surprise you.

There are judges across the land who are asking questions that are extremely uncomfortable for lawyers who are seeking protection under litigation immunity.

In one specific case there was an exchange in court between the attorney that was pursuing Foreclosure and the judge. The challenge presented by the homeowner was simply that the attorney did not represent any party with an interest in the outcome of the litigation.

So the judge asked the attorney to identify his client. The Foreclosure attorney replied “the plaintiff.”

The judge responded with “that’s not good enough. Please name the party who is your client.”

The foreclosure attorney stammered a bit and then said “Ocwen loan servicing.” Needless to say, Ocwen was not the plaintiff and could not be the plaintiff under any scenario.

The judge concluded that the attorney did not represent any party who was named as a plaintiff in the Foreclosure lawsuit. In that particular case, the foreclosure attorney was not referred for Bar discipline or to the prosecutor’s office for intentionally lying to a sitting judge. But that could happen.

I have had more than a few cases where when pressed, the attorney who made an appearance on behalf of the pursuit of Foreclosure finally admitted that their only client was Ocwen loan servicing.

That issue is settled law. Even if Ocwen was performing the functions that one normally attributed to a servicer, it could not be the claimant in a bankruptcy action nor the plaintiff in a foreclosure lawsuit. It also cannot be the beneficiary in a non-judicial foreclosure.

In the Connecticut case that I made reference to above, the foreclosure lawyer had inserted Deutsche Bank national trust company, as trustee for a trust. The truth was, as admitted by the lawyer, that Deutsche Bank national trust company had never hired that lawyer and I never agreed to allow that lawyer to make an appearance on behalf of Deutsche Bank national trust company.

This is standard operating procedure used by Foreclosure players. The retainer for legal services is executed between a law firm and a company that is named as a “servicer.” The law firm receives electronic instructions from an unknown source including all the materials necessary to initiate foreclosure proceedings. That includes the name that should be inserted in the lawsuit as the plaintiff.

If the foreclosure lawyer wins the case and the property is sold at auction and then liquidated, the proceeds of the auction or liquidation goes to unknown parties who were never mentioned during the foreclosure process. Those unknown parties are in virtually all cases intermediaries our conduit for the investment banks. In the case stated above, Deutsche Bank national trust company would never see a dime and never has seen any money from any payment by any homeowner or from the sale of any property owned by a homeowner.

I’m not going to try to convince you that this scenario is true or correct. But I have good grounds and hundreds of cases to support the premise that assuming this scenario is true in virtually all Foreclosures conducted in this country, homeowners who challenge the process with persistence and aggression, will most often either prevail or settle on highly favorable terms.

 

Omarova Hit Job by Banks and Their Republican Senate Henchmen:This is why we can’t get regulators who want to do the job of protecting the people

see https://www.npr.org/2021/12/13/1063767973/saule-omarova-gets-candid-banks-sank-her-nomination-to-head-occ

Sheila Bair was forced to resign as head of the FDIC. Very few people remember that Obama made her resign. That means she was fired. She objected to the “save the banks” strategy started by the Bush administration in 2008 and continued by the Obama, Trump and Biden Administrations.

All of them are captive audiences who are hearing only one story — that any relief given to homeowners will trash the financial and social system in this country. It is a threat of Armageddon. And it is a fake threat just like the fabricated, false, fraudulent, forged documents that have been used since the late 1990s.

So along comes someone who is thinking outside the tiny box that Wall Street money has trapped the minds of most politicians, and what happens? Wall Street panics and accuses her of being anti-everything and then because of their own accusations creating the false narrative that her nomination is “too controversial.” Wall Street wins again.

Spoiler Alert: Controversial does not mean unqualified. We lost someone who could have been an important contributor to the good of the country.

Undermining Justice From Within: How Government is Stifling the Ability of Homeowners, Lawyers and Even Judges from Protecting Basic Civil Rights Under Our Constitution

The only thing Judges have heard from all corners of the body politic is that the transactions with homeowners were in fact loans — frequently admitted by homeowners who are equally ignorant — and that any other legal approach (to foreclosures) would give an undeserved windfall to homeowners — which would somehow undermine the entire financial and social system of our country.
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So the idea is that a benefit conferred to homeowners would be a windfall. It is presented, argued, and accepted without one scintilla of any evidence that the facts on the ground would support that premise. I only argue that the premise should be tested and that neither judges nor lawyers should be subject to attack from appellate or Bar discipline or FTC actions that result in orders preventing lawyers from continuing any practice of law or that prevent them from accepting engagement for foreclosure defense.
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You should remember that when all of this started back in the early 2000s nobody mentioned any trusts and the foreclosure lawyers denied that the trusts existed or were relevant. They were telling the truth. But that too was a trap. Some of us, including myself, fell into that trap at least partially. Back in those days, the foreclosures were initiated in the name of companies that were claimed to be servicers or even MERS until that went down in flames.
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The courts struck down attempts to use names or companies that were not described as owners of the underlying obligation owed by the homeowner. So the investment banks tried a different tack. This involved creating a false national narrative by repetition of false facts and the continual use of false labels on documents and in misleading legal arguments in court — all covered by litigation immunity. There never was anything “straightforward” about the foreclosure process in this context despite that proclamation from the 3rd DCA in Florida on November 24.
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We never got to the question of whether the companies that were claimed to be servicers were actually processing, depositing, recording and disbursing funds. That was and still is assumed despite ample evidence in the public domain that third-party FINTECH companies perform all those functions — and NOT at the behest of the company named as “servicer.”
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Then it evolved into an “admission” that homeowners and their lawyers were correct — there were trusts that claimed ownership of the “loans” and so they started suing in the name of a trustee for a trust (regardless of whether it existed or not). But the fact remains that the trust names were vehicles for the sale of securities. They were never used as the recipient or owner of the underlying obligation, legal debt, note, or mortgage. That never happened because no loan account was ever sold.
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We never got to the question of whether any loan account was transferred into the trust by conveyance to the trustee which was then administered by the trustee because all of that was presumed. Woe to the homeowner or lawyer who said he or she wanted to test that proposition.
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At the urging of foreclosure lawyers who are increasingly uncomfortable pretending that the trusts actually exist and that the trustee manages the active affairs of anything, the names are evolving again in “resecuritizations” to a subtle semantic change — from “trust” to “legal title trustee.” A legal title trustee comes into existence when a document names them as the transferee of some property interest — regardless of whether the “trustee” wants it or not.
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This is where discovery becomes important — because there is always a trust agreement in which the trustee agrees that is the case and that the trustee has no right to do anything with the property. In fact, the trustee acknowledges that it has no rights, title, or interest to the underlying obligation, legal debt, note, or a mortgage that is the subject of an assignment or endorsement.
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So the fact remains that when faced with negative rulings, the lawyers stopped bringing foreclosures in the name of a company claiming to be a servicer, stopped bringing foreclosures in the name of MERS or other placeholders, and brought in a whole slew of new names in which the name of the trust is blurred. not registered and the res of the “trust” is nonexistent — all making the existence of the trustee, trust, and any rights to administer, collect or enforce irrelevant to any claims to do so.
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In order to bridge that “gap” various companies were either set up or hired to perform document fabrication, like LPS/DOCX. They hired people off the street to sit and sign thousands of documents without reading them.  They affixed the notary seal of thousands of notaries who were never present and didn’t know that their name and notary seal were being used. And the documents referred to transactions that never occurred. The public record is replete with hundreds of settlements, sanctions and other “agreements wherein various companies agreed to stop using false documents.
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It does not take a lawyer to understand that means they were admitting to using false, fabricated, forged backdated documents. But it does take a lawyer to understand that this fact alone provides an adequate foundation to challenge the apparent credibility of otherwise facially valid documents as being from a credible source. But if that argument is raised, the judge will almost always express or feel exasperation — perceiving the challenge as a mere technical challenge that is designed solely for the purpose of delaying the “inevitable foreclosure.”
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If the judge’s exasperation is turned against the foreclosure lawyers and the names used as their clients, the judge comes under fire from the appellate court.
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And notaries on fabricated documents were instructed to get rid of their logbooks so no proof would be evident that they could not possibly have performed notary services on fabricated documents, wherein the notary clause often contained a recitation that the person signing had produced proof that they were legally authorized to execute the document.
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The signors were all put out to pasture and are difficult to locate. But when they are located they admit that they had no idea what they were signing and didn’t know the definition of an assignment or endorsement. They admitted that they were working as contract laborers for the fabrication company and not for the companies dep[icted on documents as “signatories.” In short, they neither knew nor cared to know anything about the documents or the transactions that were referenced in the documents (i.e., “for $10 and other valuable consideration”).
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And when lawyers like Steve Jacobs and many others raise hell about using false, fabricated documents for nonexistent transactions they get disciplined for “unconventional” litigation practices. The only thing unconventional about Jacobs and the dozens of other successful foreclosure defense lawyers who have been targeted is that he (they) refused to buy the BS and insisted on proof of the existence of the loan account, its ownership, and the authority to administer, collect or enforce on it. How did that become controversial?
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Every defense lawyer is charged with the responsibility of testing the allegations against his or her client. But in foreclosures, judges get testy when lawyers do that. They’re annoyed by the due process required to test the allegations. They even get punitive about it citing “vexatious litigation” against lawyers and homeowners who are at times screaming over the illegality of the foreclosure practices being applied against them for a debt that might not even exist.
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And when Judges like Judge Botchko get exasperated with the apparent use of fabricated documents and argument that is not corroborated by anyone with personal knowledge, even they get targeted for discipline or reversal. [Side note: Look what happened to Judge Shack in New York and Judge Boyco in Ohio]
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The message is clear — tow the line or else. But there is an inescapable fact here: when judges rule on foreclosures they do so because (a) they understand nothing about the current securitization infrastructure and (b) they think they do know. I don’t argue that they should know. I only argue that they should make no assumptions about it. Abandoning those assumptions will go a long way toward rebalancing justice in foreclosure and collection practices.
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The absence of any evidence of curiosity or the administration of “blind” justice tells us everything. the judiciary has turned into an arm of political power because of public policy decisions made by the executive and legislative branches of the government.
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The sacrifice of the average consumer/homeowner is an acceptable collateral loss to saving the economy. But that theory arose because of aggressive manipulations and misrepresentation of information supplied by Wall Street. And the checks and balances that should be represented by the judiciary are completely absent in the face of scare tactics about financial armageddon.
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We already know from examples of different government responses in countries like Iceland that a more honest approach was and remains feasible. Yes everyone should take a hit because of these innovations that went into practice without any regulatory review. But that means everyone not just consumers. A reduction in household debt — the same as other countries — would have prevented the worst despair from the great recession and provided a substantial stimulus to an economy that is firmly based on household spending. Instead, we got a policy to preserve the past, present, and future profits of investment banks.
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This is not an indictment of the entire justice system nor of the investment banking industry as a whole. However imperfect they appear to be, they’re essential to a functioning society. It’s not even an indictment of the judges who have misapplied the law based upon false premises. After all, the only thing they have heard from all corners of the body politic is that the transactions with homeowners were in fact loans — frequently admitted by homeowners who are equally ignorant — and that any other legal approach would give an undeserved windfall to homeowners which would somehow undermine the entire financial and social system of our country.
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So the idea is that a benefit conferred to homeowners would be a windfall. It is presented, argued, and accepted without one scintilla of any evidence that the facts in the ground would support that premise. I only argue that the premise should be tested and that neither judges nor lawyers should be subject to attack from appellate or Bar discipline or FTC actions that result in orders preventing lawyers from continuing any practice of law or that prevent them from accepting engagement for foreclosure defense.
***
DID YOU LIKE THIS ARTICLE?

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

CLICK TO DONATE

Click

Neil F Garfield, MBA, JD, 74, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
*

FREE REVIEW: Don’t wait, Act NOW!

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

Should I File Bankruptcy?

Although I am qualified to practice in bankruptcy court, I do not consider myself to be a competent qualified bankruptcy lawyer. On bankruptcy questions, you absolutely need to consult with a bankruptcy lawyer who only does bankruptcy.
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The filing of a bankruptcy petition starts an administrative process that includes some elements of litigation, including discovery. In my opinion, you should take maximum advantage of your opportunities to use discovery in the administrative part of the bankruptcy action.
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At some point, you may wish to file an adversary proceeding in bankruptcy court. The bankruptcy judge has restricted jurisdiction to consider issues that are relevant to the size and distribution of the bankruptcy estate. This overlaps with your request for a “court complaint.” You basically have three choices of venue in which to file your lawsuit, although it is possible to break it up.
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  1. After sending the CFPB complaint you can file a separate FDCPA complaint in federal court or even state court. This strategy is intended to keep matters separate and simple. It has several strategic advantages but a few tactical challenges. If combined with other strategies you may be accused of vexatious litigation.
  2. A general complaint for injunctive, supplemental, and declaratory relief could be filed in either federal court or state court. My general predisposition is to file it in federal court and then treat it as your adversary proceeding in bankruptcy court. If you do that, you will only be in two venues.
  3. A complaint filed in the bankruptcy court is called an adversary complaint. It would attack the basis for any claim or proof of claim that is referenced in the bankruptcy. Special care must be taken to ensure that the schedules don’t admit what you are claiming is false. If the decision is made to be in three venues, the adversary complaint could single out specific issues that are most likely to be within the restrictive confidential jurisdiction of the bankruptcy judge I had to leave out the allegations contained in the general complaint filed in a court of competent general jurisdiction (federal or state).
The people who can afford to be in three venues frequently had good results. But it is very expensive since you would need separate counsel litigating and bankruptcy court and whichever court of general jurisdiction you have filed your general complaint. If you are going to bankruptcy court and you are expecting litigation you either need a bankruptcy lawyer who is a litigator, which is rare, or you need a bankruptcy lawyer and a litigator.
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Subject to the opinion of local bankruptcy counsel, I generally favor the filing of chapter 13 or chapter 11 bankruptcy. Individuals who attempt to file Chapter 11 petitions are subject to vigorous restrictions. What I don’t like about chapter 7 is that, unlike the other chapters, the debtor is giving up ownership and control over all assets and all liabilities to a US trustee in bankruptcy, including claims. Generally speaking, the timing of the filing of a petition for bankruptcy relief usually coincides with a deadline date for some other legal event.
*****
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.

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Neil F Garfield, MBA, JD, 74, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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FREE REVIEW: Don’t wait, Act NOW!

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

You Can Use This As a Template for How I Would Respond in a Discovery Dispute — Especially with Wells Fargo, Fannie Mae and Wachovia as the Originator

In a dispute between the attorney for the homeowner and the attorney for the alleged “lender”, there are a number of devices that are nearly universally applied across the country in order to ridicule and defeat the homeowner. The more you are aware of them, the better you will be prepared to deal with them.

Opposing counsel is instructed to accomplish several things (winning being the last of the things on his or her menu). First, the idea is to undermine the confidence of the homeowner and to undermine the confidence of the lawyer for the homeowner in any defense to the foreclosure. They do this by several tricks.

The main one is offering cash for keys. This says “You know we will win and you don’t have a chance, so get out now and we will pay you a couple of thousand dollars.” By doing that, they give the impression that the case has been evaluated and that the offer is somewhere within the realm of reasonability given the probable outcome. It isn’t and all my cases start this way — especially the ones where the judgment was entered for the homeowner.

The next one is offering modification which is basically saying “OK, if you recognize this transaction as real, we will offer you different terms.” The initial offer of different terms is virtually no change at all in the original terms but it gives hope that there will be a breather between now and when they return to foreclosure mode. It is about as attractive to the homeowner as the cash-for keys deal.

If you stick to your guns the offers will improve; most homeowners end up not resisting an offer that they think gives them enough relief that it isn’t worth proving or revealing that there is absolutely no corroborating evidence in the form of testimony on person knowledge, documents or receipts that support the apparent facial validity fo the documents being used to fabricate a claim against the homeowner on a non-existent loan account receivable.

Just be aware that acceptance of any offer in most instances is doing business with a thief in exchange for returning stolen property. From the point of view of the thief, he or she worked hard for that property and is entitled to compensation for the work performed. Anything less than that is a loss and if given the chance they will even sue for it. None of that is law but anyone can use legal process, even to make false claims. Such claims are deemed true unless properly contested.

So in a situation where the case is almost over the lawyer representing the homeowner is still hammering away at enforcing discovery.

The opposing lawyer is characterizing the effort as a desperate attempt to escape a legitimate debt and a using the lawyer and the homeowner of vexatious litigation —- i.e., using legal process improperly to gain an undeserved legal advantage. in other words, the attorney for the financial industry is accusing the homeowner, who has virtually no resources, of doing exactly what the foreclosure lawyer has done is continuing to do because he or she has the full backing of companies with infinitely deep pockets.

Discovery has been served and the response was objection and motions for protection. The homeowner’s lawyer filed a motion to compel compliance with the rules of discovery. The foreclosure lawyer filed a response saying that the homeowner was trying to relitigate the case, in a desperate attempt to avoid the inevitable loss of possession of the property using vexatious litigation strategies.

Here are my notes, with some edits:

I see several issues with the response filed by opposing counsel.
  1. I doubt that counsel has any written or oral authority to represent Fannie Mae that was granted by Fannie Mae.
    1. Fannie Mae would not hire the law firm unless they were making the direct rerpesentation ot the lawyer that they were in fact the owner of the properrty which title had been legally acquired. Since Fannie knows taht its name is being used in vexastious litigation against homeowners that reuslt in forecloure sales wherein the money proceeds are never paid to Fannie {same as REMIC trustees}, it would not make such a declaration and it would therefore never directly hire the law firm.
    2. And if push came to shove, I am virtually certain that anything represented in court to have been on behalf of Fannie Mae would be subject to Fannie claims of plausible deniability.
    3. But it is extremely difficult to raise this issue and get any traction directly. If there is a mediation Conference you may have an opportunity to ask about authority and then file a motion for sanctions for failure to appear. But I don’t think that this is possible at this stage in litigation.
  2. There is a growing national use of the attempt to squelch challenges by accusing the homeowner of vexatious litigation. These are actually being taken seriously by judges who are anxious to move cases off their docket. You need to be very careful about this issue. There is a recent case where the vexatious litigation issue was defeated by the homeowner without the assistance of counsel in California. But there are plenty of cases out there and which judges referred to a vexatious litigant which in all cases means a homeowner or the lawyer for the homeowner. Vexatious is anotehr word for annoying, so you need to reframe that. This idea exists because  of the presumption that the conclusion is already known and is inevitable. That conclusion is based upon a faulty and erroneous understanding of financial innovation from Wall Street that occurred 25 years ago.
  3. The pleadings filed by opposing counsel follow the playbook for the nation. It contains a recitation of facts or implied facts that only exist because of legal presumption arising from the apparent facial validity of documents that are uncorroborated, together with the effect of the presumptive validity of court orders that have previously been entered.
    1. Although we should always be careful about picking our battles, we should never accept or even suggest that we are accepting or ignoring the recitation of facts that are untrue and unsubstantiated.
  4. The first thing you need to deal with is that you are entitled to discovery and the discovery is intended to reveal rather than obscure relevant issues. But it is opposing cousnel’s instruction to obscure and refuse to reveal anything. As usual they will accuse the hoemowner of doing exactly what they are doing.
    1. It might be worthwhile to articulate that the defense narrative is based upon in-depth investigation, research, and analysis from experts in the securitization of debt — And that they have expressed the definite opinion that nearly everything assumed by opposing counsel in his opposition to the motion to compel discovery is not only uncorroborated but also untrue.
  5. The entire case presented against the homeowner rests completely on uncorroborated presumptions regarding the existence and transfer of an alleged obligation owed by the homeowner to Wells Fargo bank and then Fannie Mae.
  6. While there is ample evidence of a merger between Wells Fargo Bank and Wachovia, the originator of the transaction with the homeowner, there is no evidence whatsoever that Wachovia ever transferred any interest and the transaction that had been conducted with the defendant homeowner.
  7. The fact that there has been a merger does not mean that we know the terms of the merger or that anything relating to the defendant homeowner was included in the terms of the merger.
  8. There is nothing corroborating the presumption that Wachovia was the owner of a loan account receivable on accounting ledgers owned and maintained by Wachovia at the time of the merger, much less that Wachovia intended a transfer of ownership of the loan account to Wells Fargo bank.
  9. Indeed, the experts report that it is a common practice of Wells Fargo bank to assert its ownership over the loan account at the beginning of a foreclosure action and then to admit later that it is only a servicer.
  10. But its role as a servicer is also uncorroborated and probably untrue. The fact that it produces reports does not mean the data or the report was generated as a result of receipts and disbursements by Wells Fargo bank to or from any debtor or creditor.
  11. And obviously if Wells Fargo employees did not actually receive and disburse money relating to a loan account receivalbe, they could not have recorded such receipts or disbursements with personal knowledge. These are the issues that are being explored by the demand for discovery.
  12. If the defendant homeowners defense narrative is correct, then the fact that she had lost in litigation, is merely an assertion of conclusions previously reached by a court that had been misled by counsel.
  13. Opposing counsel seeks to argue that the defendant homeowner is not entitled to any answers because of the production of documents. But those are the precise documents that defendants experts assert as memorializing nonexistent transactions. Defendant hoemowner is merely testing them through disvovery. If they are not true they should never have been presented and a fraud has been committed upon the court. The foreclosure porocess, sale and now demand for possession must be dimsissed and vacated as the may be.
    1. The unwillingness of opposing cousnel to provide a direct response to direct discovery demands is a tacit admission that counsel is unable or unwilling to provide corroboration that transctions supposedly emorialized on the documents presented to the court and relied upon by the court
  14. Opposing counsel keeps referring to a “mortgage loan” when he should be referring to mortgage documents. Defendant homeowner admits to executing mortgage documents, but now, based upon factual investigation and research, denies the existence of a loan account at any time material to these proceedings.
    1. Opposing counsel seems to be aware of the problem and is attempting to curate by constantly referring to “the mortgage loan” rather than “The mortgage documents.”
  15. Experts for the defendant homeowner have revealed that Wachovia was primarily engaged in the origination of transactions with homeowners and perspective on motors for the exclusive purpose of supplying data to investment banks for the sale of securities. In this process, the loan account was retired because it was paid off contemporaneously with the closing of the transaction with the defendant homeowner.
    1. If the loan account was not retired in a securitization process then defendant homeowner concedes that the foreclosure was properly executed. But if it was retired then the foreclosure was not properly executed.
    2. The supposed presence of Fannie Mae gives rise to the presumption that the transction is and was always subject to claims arising out the issuance of securities, d epsite the fact that such securiteis offered now ownership in any alleged liability, obligation or debt owned by the homeowner.
      1. There is no evidence that Fannie ever paid value in exchange for ownership of the underlying obligation as requried by statute as a condition precedent to enforcement. This is also required for jurisdicition (see below).
  16. The discovery demanded by the defendant homeowner seeks to clarify this issue. If in fact the alleged obligation was purchased and sold on the secondary market or otherwise subject to a transaction in which no loan account survived on an accounting ledger of any company, it follows that nobody suffered any financial loss arising from ownership of such an account, despite various attempts to collect money from the defendant homeowner.
  17. Such a true fact pattern defeats the constitutional requirement for case and controversy and the jurisdiction of any court to hear the case much less dedicate anything. It also follows that no party claiming to represent or implying representation of a creditor owning the nonexistent loan account, could have any authority to declare any default, nor any authority to claim the right to administer, collect or enforce any alleged obligation arising from the nonexistent loan account.
  18. Opposing counsel is correct when he refers to the desperation of defendant homeowner. She is anxious to retain possession and to regain title to a homestead that was putatively taken based upon false and misleading representations made to her and the court. Anyone faced with losing their homestead or their property and their lifestyle would be desperate to foil the attempt. It is up tot he court to rasie cofndience that if the attemopt succeeds it will be to pay a party who will receive the proceeds of forced sale and then apply those sums to reduce the loan account receivable. This is not the case at bar.
  19. Defendant homeowner merely seeks answers to the most relevant questions that could possibly exist in a foreclosure action. Was there an existing loan account receivable maintained on the ledger of Wells Fargo bank or Fannie Mae at the time that the default was declared and the action for Foreclosure was commenced? If the answer is no, then the court was misled and entered orders and judgments that are voidable or subject to being reconsidered and vacated. If the answer is yes, then the dispute is over.
  20. Opposing counsel is concealing his contempt for court process by clever wording accusing and characterizing the attempts by the defendant homeowner to reveal the ruth as repeated attempts by the defendant homeowner to relitigate the case based on the same facts. This is not true.
    1. Defendant homeowner wants to reveal that there were no corroborated facts presented in support of the claims against her and that in fact no such facts could have been presented because they did not exist.
    2. She seeks to determine the nature and status of the transaction that was originated in 2006, and the claims arising from implied transfers that were never documented but are presently argued before this court.
    3. Not even teh merger agreement has been proffered (much less ordered and accepted) into evidence nor any testimony or affidavit from any witness with personal knowledge that the alleged merger effectively and intentionally transferred the ownership of the subject alleged transaction balance (i.e., the loan account receivable) from Wachovia to Wells Fargo.
  21. Opposing counsel absolutely refuses to simply say or even argue that Wells Fargo was the creditor who owned the loan account receivable or that FNMA had any financial interest in the transaction as owner of the transaction conducted with the defendant homeowner in 2006.
  22. Dodging the question does not make the question wrong. Nor does it imply that that answer is obvious. Opposing counsel is arguing a narrative that has no corroboration in any evidence consisting of testimony from any competent witness with personal knowledge, or any document that can survive any scrutiny when tested for validity as to representations of a transaction such as purchase and sale of the alleged underlying obligation as required by Article 9 §203 of the Uniform Commercial Code adopted verbatim under state statutes.
  23. The alleged possession of the promissory note is in fact, as opposing counsel has argued consistently, sufficient to obtain a money judgment on the note.
    1. It is also sufficient for the court to infer that the holder of the note is the owner of the underlying obligation for purposes of pleading in a foreclosure action.
    2. But in the proof of the matters asserted, it does not rise to the level of a prima facie case establishing such ownership when the court conducts a final hearing on the evidence.
      1. Possession of the note is an exception to the rule that the holder may obtain judgment without any financial loss to the note holder being stated or proven.
      2. In such cases, it is enough to establish that the maker of the note failed to make a scheduled payment.
    3. But the Article 3 UCC exception does not remove the basic underlying Article 9-203 condition precedent to enforcing a security isntrument (mortgage). The mortgage may not be enforced without paying value for the underlying obligation. The protection of homestead rights is inviolate and may (under current law) only be subject to forfeit in the event that the owner of the underlying obligation is the complaining party.
      1. In the case at bar, the complaining party neither (a) alleges nor proves such ownership of the underlying obligation nor (b) alleges or proves that anyone is or was a holder in due course — which would mean by definition that it had paid value for the underlying obligation (or at least the note)
      2. The legislature has spoken and this court has been led to believe that the statute has been satisfied. Upon solid information and belief nobody who has been represented as being the complaining party either did or could have satisfied the condition precedent in state law adopted Article 9 §203 UCC. This was concealed from the court and from the homeowner. If it isn’t true then no judgment, no sale, and no demand for possession should be granted.
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.

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Neil F Garfield, MBA, JD, 74, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
*

FREE REVIEW: Don’t wait, Act NOW!

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

Why Retailers Have a Stake in Maintaining the “Securitization” System

EVERYONE IS GETTING A PIECE OF THE SECURITIZATION PIE EXCEPT CONSUMERS WITHOUT WHOM IT WOULD NOT EXIST

Retailers are NEVER going to challenge what Wall Street is doing to consumers because virtually everything is sold with an offer to make installment payments — which in turn results in the sale of securities far in excess of any purchase. Retailers have increased sales dollars then because (1) more products and services are sold and (2) they can raise prices by selling payments instead of the actual price of the product or service.

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We saw this in stark relief when developers in the 2001-2007 ramp-up were increasing prices by as much as 20% per month, corroborated by appraisers who were being paid to state a value that was $20,000 more than whatever the contract price was stated. That is how prices deviate from value. And when that happens a crash always follows.
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And real estate developers became addicted to the scheme because they were getting more and more for the sale of new homes, they were getting more sales of homes based on nonviable “loans,” and because they were starting mortgage brokering operations on site while they were selling homes — which enabled them to get kickbacks (bonuses) from Wall Street.
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In short, EVERYONE IS GETTING A PIECE OF THE SECURITIZATION PIE EXCEPT CONSUMERS WITHOUT WHOM IT WOULD NOT EXIST. In that context, the critique of my opinion and conviction that consumers should be participating in the revenue and profit cash flows—-  along with everyone else — falls flat. Exactly why should consumers be excluded from the largest financial innovation in history when it is the consumer who launches the innovative scheme? Should it really be a legal doctrine that successful concealment of the scheme from consumers is sufficient to institutionalize the practices as though they are legal? 

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This facts demonstrate what I have been saying since 2007. The ingredients for such illegal schemes — whether you are looking at Wall Street or the pharma industry — is a false national narrative “corroborated” by fake labels that are generally accepted over time PLUS addiction to the flow of money that represents “extra” revenue. Even consumers who pay the ultimate price are addicted to the flow of goods and services into their lives because of the blind addiction to debt.
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And the addiction to debt and acceptance of debt as a substitute for wages is an underlying reason for social unrest — although people say it is something else. Deep down inside nearly everyone knows that things are screwed up with our economy and our politics but they’re unable to articulate it because they don’t know enough about it.
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So you end up with all ends of the political spectrum articulating idiotic ideas about what is wrong with society because they really don’t know. And people from opposing ideologies get to believing and saying that the other side is stupid. They’re not stupid. They’re simply struggling to express their angst in a chaotic world that is mainly controlled by big money.

Tired of Banks Ruining Your Life? Being Angry Is Not Enough!

There is an important difference between sending letters to regulators complaining about lack of action on behalf of consumers and sending a QWR, DVL and complaints to CFPB and State Attroeny General on specific cases.

The first one is a political act, not likely to produce results unless millions of people join with you in one form or another.

The second one is part of a overall legal strategy designed to reveal the inability or unwillingness to answer basic questions about the position of the party who is claimed to be a creditor.

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As a matter of practical political reality, the only way that letters to regulators are going to produce any change in government behavior is if millions of people send essentially the same letter. It won’t happen because a few people send hundreds of letters.

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Since most consumers (homeowners) are oblivious to their rights, disinterested in protecting those rights, and have too little time to do the necessary learning and research, it appears that smaller groups of highly motivated, committed homeowners are going to shoulder the burden. The key to success here is in the details. Changing the accepted forms, rules, and customs requires the proactive advocacy of very competent attorneys, none of whom are going to do this work without receiving reasonable and customary fees.

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So the first order of business is to figure out a way to attract capital that is carefully controlled by multiple people. I have been making this point for years. But as these groups get together they drift into policy debates instead of a reasonable business plan designed to produce capital and concrete results for homeowners.
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While I can endorse such efforts, I cannot be part of them. I have personal and detailed knowledge of multiple cases in which lawyers who were successful in defending homeowners attempted to expand the bandwidth through various business structure devices, some of which were not unlike the ones used by investment banks in their false claims for securitization of debt.
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Every single one of those lawyers has been the target of either disciplinary action by the Bar Association or a direct attack by the Federal Trade Commission, resulting in negative consequences. I even know of one case where the lawyer was banned from accepting engagements for the defense of homeowners and foreclosure actions. I don’t know the details of every one of those cases. But I doubt that any one of those cases had any merit.
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My effectiveness in providing information, strategy, tactics, and services to homeowners faced with false claims of foreclosure is heavily dependent upon my credibility, which is under constant attack from people who are paid to post negative comments.
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I will remind everyone that there has not been a single article or appearance on TV, radio or any social media by any person who has credentials relating to investment banking practices as they have been applied to the securitization of debt and who has challenged anything I have ever said. In fact, the reverse is true.
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In fairly well-publicized meetings and webinars designed for lawyers who advise or represent players in the financial industry, the presenters have all basically said the same thing: what you are doing is wrong, proceed at your own peril. I have previously published copies of the materials that were used in some of those presentations.
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The banks are relying mainly on their size, and the fact that they can addict almost anyone to the flow of income. That includes politicians and regulators who are looking ahead to the next job. The only way homeowners are going to effectively combat injustice is by collective action that supports individual challenges to foreclosure and larger plans to demand changes in rules, regulations, accepted forms, customs, and practices relating to foreclosure.
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The last thing I’ll say on this point is that it is only after substantial publicity on each case in which homeowners have prevailed that the common false national narrative that has been promulgated by the banks will be defeated. Their position has continually been corroborated by their own success, even though that success has been procured by false statements made in court or contained within fabricated forged documents.
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Your position can only be corroborated by your success, to wit: publicizing the many cases in which homeowners have prevailed and encouraging the homeowners to go the extra mile to judgment instead of a settlement. And there are trial court cases that have been so decided. But generally for the homeowner that entails a risk —- and that is your problem.
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Upon receiving an offer to reduce the amount demanded from the homeowner to a fraction of what was previously demanded, the homeowner will generally be more than willing to sign an agreement promising confidentiality and even agreeing to expunge the court record. They will most often not elect the more expensive route of risking everything to get the judgment for the homeowner.
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That is what you are up against — a general public record that is almost devoid of any appellate or trial court decisions that include findings of fact supporting the truth — that the claims being brought against homeowners are false from beginning to end. Being angry is a proper response. But being effective means channeling that anger into something that will work rather than mere venting.
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DID YOU LIKE THIS ARTICLE?

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

CLICK TO DONATE

Click

Neil F Garfield, MBA, JD, 74, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
*

FREE REVIEW: Don’t wait, Act NOW!

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

Tonight! Q&A on Prelitigation Strategies — QWR, DVL and Complaints to CFPB and State AG 6PM EST 3PM PST

Thursdays LIVE! Click into the Neil Garfield Show

Tonight’s Show Hosted by Neil Garfield, Esq.

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

As a follow-up to our FREE presentation CLE webinar on Prelitigation Strategies and Practices, we offer an open mike Q&A on tonight’s show. Please think about your questions in advance and refrain from long monologues about your case.

As an introduction let me state the obvious premise of this work: If as a consumer you have executed a promissory note and mortgage (or deed of trust) and you think that there is a loan account receivable somewhere that is owned and maintained by some lender or creditor, you are most likely incorrect.

Most homeowners make the mistake of thinking that the QWR and DVL are simply “form letters.” If that were the case, we would provide you with the template and you could send it out yourself. And back in the old days (pre-1995) that would be entirely appropriate for settling any disputes regarding the proper allocation of payments or any other issues.

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The statutory foundation for the creation of the QWR and the DVL was designed to resolve potential disputes between the debtor and the creditor.
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Today, the situation is different. We already know that there is no valid claim against the homeowner and that there is no valid claimant. We also already know that any company that is claimed to be a “servicer” neither has any legal authority to act as such (from anyone) nor does it perform any functions that are normally attributed to a company claiming to be a servicer.
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So while the legislative intent for providing consumer remedies in RESPA and the FDCPA was designed to resolve disputes, the procedures contained within those statutes are now used by homeowners to start a dispute — because, without a history of disputing the claims made to administer, collect or enforce any alleged obligation due from the homeowner, it is much harder to mount an effective defense.
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So the idea behind the sending of a QWR and DVL is to identify specific issues that you already know will not be answered — which gives you the right to file a lawsuit for violation of RESPA and FDCPA. In order to do that effectively, the homeowner needs to distill the case analysis down to the points that are relevant to those statutes. Although this is not exactly the same as preparing a lawsuit, the drafting of the QWR and DVL requires research, investigation, and very careful wording.
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Some homeowners have been able to do it themselves, but most are unable to do so because they lack the experience, knowledge, and resources to present direct questions concerning the existence of the loan account receivable, the status of the account, the ownership, and the authority to administer, collect or enforce any monetary obligations arising from the alleged existence of the account.
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Most of this is confusing to homeowners because they have never been to law school, received any practical training in trial practice nor have most of them ever been involved in any litigation. When most homeowners send the QWR or the DVL and they fail to get a direct answer or proper response that answers the specific questions asked in those letters, they consider the entire effort a failure and a waste of time — when in fact they just had a win. They have established that the parties seeking to make claims about administration, collection, or enforcement of the alleged obligation are unwilling or unable to provide any corroboration of such claims.
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IMPORTANT PRACTICE NOTE: When the QWR or DVL is used as a general discovery device or is used to pontificate about disputed views, it is generally dismissed by both the recipient and any court reviewing it as an unqualified written request under RESPA and not a demand for debt validation under the FDCPA. This is where the homeowners get themselves into trouble. The general attitude is that the “you know what I mean” argument is sufficient. It isn’t.
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Homeowners Win Only When They Litigate Properly — Not Because They Are Right

There is a difference between securitization, on the one hand, and securitization of debt, on the other. They are not the same thing. The entire scheme that is currently advertised or represented as securitization of debt is false.

Securitization refers to the creation, issuance, sale and trading of securities. There is no doubt that securities were issued, although I take issue with the notion that those securities were not subject to regulation by the SEC. But anyone on Wall Street will admit that those securities are not mortgage-backed securities, and they are not asset-backed securities, and they are not shares of ownership of any obligation or liability of any homeowner.

Securitization of debt specifically refers to breaking up ownership of obligations and selling shares to investors.

With respect to transactions with homeowners, there can be no doubt that securitization of debt has never occurred since it’s inception in the mid-1990s. But there is also no doubt that almost everyone, including the homeowners and their attorneys, believes that securitization of debt did in fact occur.

This means that the underlying obligation, legal debt, loan account receivable, note and mortgage were never sold individually or as a group. It means that any claim of authority to administer (“service”), collect or enforce any purported liability of the homeowner that is based upon the sale of the laibility from one party to another is false. And that means that none of such parties possess any legal claim to do anything.

I recently received a question regarding notarization. The questioner, “summer chic,” asked why there appears to be no U.S. requirement that a notary public maintain a journal or logbook for notarization when that requirement is enforced practically everywhere else. The simple answer is that there used to be a requirement like that, but there is no such requirement now. And the reason is that the banks have successfully undermined the ability to produce evidence that the notary seal and signature were not affixed by the notary or even in the same geographical area as where the notary resides and works.

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Like the Trustees, “servicers” and everyone else, they are collecting royalties for use of their name, signature and seal. They don’t actually do anything. The person whose signature is being affirmed as being signed by the person named in the instrument does NOT appear in front of any live person and does not produce proof of their identity.

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So this enables the banks, acting through multiple layers of intermediaries including foreclosure lawyers, to fabricate documents that appear to be self-authenticating and valid (presumptively) despite the fact that the document memorializes nonexistent events and nonexistent people in connection with nonexistent transactions. Such documents are completely false, fabricated, forged, and do not survive any test of credibility or authenticity when litigated properly. By doing this the banks were able to sell the illusion of each initial transaction with homeowners to multiple buyers (investors) multiple times  — something that would put them in prison for a long time if they were actually selling the debt.

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This was all changed when the banks started their business plan. All of the basic notions of credible evidence concerning real events and real people needed to be undermined in order for the plan to succeed.

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Having changed the norms, rules and practices of several industries, they have created a presumption of validity for behavior that is patently illegal, if it was disclosed. But because of the presumption, there is a heavy burden on the homeowner to go the extra mile.

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And it requires a clever trial attorney to realize that the object is not to prove a point but rather to simply undermine the ability of the opposition to corroborate their claim. When they fail to answer questions or demands that they are legally required to answer, it is up to the homeowner to aggressively litigate the issue of their failure to respond.

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That litigation changes the case and the narrative from bank versus deadbeat homeowner to judge versus uncooperative foreclosure lawyer. Once you have completed changing the narrative, there is an 85% chance of a favorable judgment for the homeowner.

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Every favorable decision for the homeowner that I have ever received for review or obtained on my own is marked by that characteristic — the refusal or inability of the foreclosure lawyer to comply with rules of court and especially court orders compelling compliance. Very few of those cases have ever been appealed by the banks. This is a nuanced strategy of the banks. By not raising the case to the level of an appeal, they minimize the risk of creating legal precedent against they are full presentation of securitization of debt.

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So the Defense of Foreclosure cases depends upon factors and nuances that are completely unknown to most homeowners. They then go into court believing that they know what they’re doing, which is exactly what the banks want.
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Some people feel guilty about using the strategies and tactics against the banks. But the banks feel no guilt whatsoever and using false fabricated documents against those same people.
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The answer is pretty simple. Since homeowners were tricked into enabling the launch of a securities scheme, they should have been compensated for doing so, and they were entitled to their share of the revenue and profit. In fact, I think they received it in the form of a disguised loan transaction. The mistake, that was entirely intended by the banks and based entirely on concealment of the true nature of the transaction with the homeowner, is that the homeowner was convinced that he or she was receiving a loan instead of a simple payment for services rendered in connection with the launching of the securities scheme.
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If anyone actually was successful in forcing the players to produce the internal records, they would see (as I have seen) that these statements are exactly what is described in accounting ledger’s, books, and records of all the players involved in the origination and subsequent treatment of transactions and correspondence with homeowners.
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I think the payment they received was not a loan simply because it was never recorded as a loan account receivable on the accounting ledgers of any company, nor was it ever purchased. The objective of the banks was to sell securities.
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They paid homeowners to execute documents creating the illusion of a loan transaction but never disclose that there was no lender, creditor, loan account receivable liability for compliance with lending and servicing laws.
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My opinion is that each homeowner received a fair share of that revenue and profits derived from the sale of securities and exchange for lending their name, financial reputation, signature, and consent.
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The execution of the note and mortgage, while necessary to create the illusion of a loan transaction — and therefore justify the sale of securities based upon the existence (but not the ownership of homeowner transactions), did not memorialize any loan transaction and was not supported by any consideration.
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There is no obligation or debt owed by the homeowners who issued any promise to pay because there was no consideration paid to the homeowner to fulfill that promise. The only consideration received by the homeowner was for services, not for a loan — even though the homeowner clearly believed otherwise.
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The fact that the homeowner was successfully deceived is not a legal or equitable reason to hold homeowners to a contract that was concealed from them to wit: the promise to treat the transaction as though it was a loan even though it wasn’t. The promise to pay was based upon the existence of a lender, loan account receivable, and compliance with all applicable lending and servicing statutes —- something that never occurred.
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Nobody paid me to write this. I am self-funded, supported only by donations. My mission is to stop foreclosures and other collection efforts against homeowners and consumers without proof of loss. If you want to support this effort, please click on this link and donate as much as you feel you can afford.
Please Donate to Support Neil Garfield’s Efforts to Stop Foreclosure Fraud.

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Neil F Garfield, MBA, JD, 74, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
  • But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.
  • Yes you DO need a lawyer.
  • If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.
Please visit www.lendinglies.com for more information.

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

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

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

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

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

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

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

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

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

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

So you get articles like this:

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

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

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

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

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

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Neil F Garfield, MBA, JD, 74, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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CLICK HERE TO ORDER ADMINISTRATIVE STRATEGY, ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
*
CLICK HERE TO ORDER TERA – not necessary if you order PDR PREMIUM.
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CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
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CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR) (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
  • But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.
  • Yes you DO need a lawyer.
  • If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.
Please visit www.lendinglies.com for more information.

 

Read This Article in Forbes Before It Gets taken Down

https://www.forbes.com/advisor/debt-relief/using-debt-verification-debt-validation-letters/

It’s a business. Anyone can make a claim. Anyone can say that they are representing someone who has a claim. If you don’t contest it, the claim might be presumed as valid even though it has no basis in fact.

The investment banks don’t want you to read articles like the above link in Forbes magazine. Besides corroborating many of the strategies and tactics that I have strongly recommended, it also corroborates the fact that many claims, especially those from unknown debt collectors, cannot be supported by any evidence or proof.

 

 

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

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

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

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

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

How Could This Not Be a Loan?

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

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

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

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

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Neil F Garfield, MBA, JD, 74, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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FREE REVIEW: Don’t wait, Act NOW!

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

Tonight! Sharks Eating Sharks: a Case Study out of the SDNY from 2016 3PM PST, 6PM EST

Thursdays LIVE! Click in to the WEST COAST Neil Garfield Show

with Charles Marshall and Bill Paatalo

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

The legal case of US Bank (trust) v. UBS (United Bank of Switzerland) Real Estate was decided in 2016 in SDNY. The order following decision extends for literally more than 100 pages. The gist of the case is that US Bank went after UBS because of the poor loan quality of the loans making up the pool of investment mortgages in the PSA put together with UBS to memorialize the trust.

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Bill will explain and Charles will frame legal implications for how homeowners can use a lot of the findings and information from the lawsuit in their own cases defending or suing institutional lenders and servicers. While UBS could not meaningfully demonstrate that they deposited the actual mortgage notes per the PSA, into the US Bank trust, US Bank alleged to have never even received the Mortgage Files which make up the source of documentation for the individual loans. Yet US Bank could proffer no meaningful evidence that the US Bank, did not in fact receive the Mortgage Files at issue, so much of the Court Order rejected their claims.

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The overall Court Order is an exemplar in contrived complexity, yet also an exemplar of sound and unfortunately vanishing clear and compelling language when relating complex topics such as this one. The Order noted on page 7, “Remarkably, the overwhelming majority of loans in the Trusts were for the purpose of refinancing a home already owned by the borrower, rather than for the purpose of purchasing new property…Undoubtedly, many of these were for the purpose of monetizing and extracting rising equity for other use.” Hence, of course, the poor loan quality, and the high default rates in these trusts, here leading US Bank to sue through the trust at issue, to try and staunch the bleeding to them, from the bad loans.

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Charles will then discuss how this contrived complexity is one of the reasons homeowners are reluctant to defend themselves and address other reasons for that reality.

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EDITOR’S NOTE:

I find it extremely interesting that the one Warranty that any normal person would think is important is completely absent and never discussed in this case. There is no warranty of title nor any allegation (as far as I can see) that title was conveyed to the underlying obligation, the debt, the note, or the mortgage. This is what is so hard for most people to understand.

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All of the “securitization of debt,” contrary to the original premise, involves securitization about debt and not securitization of debt. And that is why it became necessary to fabricate false documents for every single foreclosure that has ever been subject to claims of “securitization.” And what I am directly saying here is that because the entire process of securitization was misrepresented to everyone, both investors and homeowners should have at least had the opportunity to bargain for better terms — or to recover money that would ordinarily have been paid in arms-length bargaining.

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Since the true nature of the scheme was concealed, a properly formed lawsuit for reformation and unjust enrichment could be shown to be completely valid as the foundation for an action to recover a great deal of money — a share of the seismic profits generated from each so-called “loan” transaction and each so-called sale of a falsely labeled REMIC certificate.

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And likewise, investors have still not grasped the fact that there was a TIER 2 yield spread premium that was pocketed by investment banks. This “premium” was generated by the difference between the amount paid by investors and the amount paid to homeowners. In some cases, the amount of the premium exceeded the amount of the money paid to homeowners.

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So if investors were really getting what they thought they were getting — i.e., some right title or interest in loans — they would’ve had an immediate loss that they should have reported. In plain language, the investor paid $1000 and the investment bank paid the homeowner $500. But since the investors don’t really have any right, title, or interest in any underlying obligation, legal debt, note or mortgage, they can’t complain about the loss. The only reason they can’t complain about the loss is that once again the real nature of the scheme was concealed.

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The bottom line is that retirement funds and home equity became bonuses on Wall Street.

Here is How Wall Street Smoke and Mirrors Works

The idea that some company bearing the label of “servicer” is performing financial functions and accounting on behalf of an investor, a trust, a trustee is completely false from end to end. Such companies do nothing and were never intended to do anything except act as a buffer, in name only, to prevent liability attaching to investment banks who had entered the lending marketplace without any intent to enter the business of lending money for profit. But when the homeowner admits that such labels and narratives are true, the law of the case becomes the false narrative and labels. 

As a matter of policy, prudence, and required risk management, none of the tier 1 companies are permitted to actually perform any financial service or accounting. They do not receive or disburse funds. Therefore they do not originate any data input regarding the receipt or disbursement of money.

First of all, you have to remember that the primary goal of investment banks is to hide the existence and function of one or more investment banks including but not limited to the “book runner.”. All of the entities that perform any financials service or accounting are entities that are contractually bound to intermediaries for the investment banks. (see Tier 2 below).

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All of the entities whose names are used as smokescreens (I.e., placeholders or buffers) are not contractually bound to anyone and are the intended targets to be thrown under the bus when there is an unavoidable accusation of fabricated documents using false information used solely for the purpose of squeezing money or property out of homeowners. (see 50 state settlement for example). (see Tier 1 below).

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But none of the companies performing financial services or accounting has any contractual relationship with the homeowner or the company that has been claimed to be the “servicer.” So the first erroneous assumption is that these functions, even if prepared by third-party vendors, are performed at the behest of the companies that are claimed to be “servicers.” Such companies are in charge of nothing and perform no functions.

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Other than a few people on Wall Street, it simply has not occurred to most people that these functions are performed contractually and solely for the benefit of investment banks on Wall Street — who are never named in litigation by either side even though everything that has occurred has been under the sole discretion and instructions of the investment bank. And the investment bank contrary to popular belief in the false national narrative, are working only for themselves — not investors, trusts, or trustees. Their holy grail has been achieved — the sale of securities without ever having to give up the proceeds to the named issuer. But it is patently illegal and probably criminal.

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The idea that some company bearing the label of “servicer” is performing financial functions and accounting on behalf of an investor, a trust, a trustee is completely false from end to end. Such companies do nothing and were never intended to do anything except act as a buffer, in name only, to prevent liability attaching to investment banks who had entered the lending marketplace without any intent to enter the business of lending money for profit. But when the homeowner admits that such labels and narratives are true, the law of the case becomes the false narrative and labels.

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From the perspective of the investment banks, the money paid out under the label of “loans” was simply a cost of doing business — the business bang the sale of securities. The investment banks had no interest, no risk of loss or any other stake in the outcome of any transaction that was falsely labeled as a loan transaction.

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The banks covered up their activities by increasing apparent complexity in a fairly simple transaction — i.e., one in which someone would debit their cash or other asset account and credit the loan account receivable of a borrower. Such accounting never took place in most instances because none of the parties involved in the falsely labeled “origination” was anything other than a placeholder name through which money could be delivered to a closing agent for disbursement to or on behalf of the homeowner or consumer.
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The investment banks have used the placeholder name function at many levels each of which appears to have facial validity but lacks any connection to transactions in the real world. have spread out the functions.
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There are two categories. The first category (Tier 1) is the one that you see. This is the one that reveals the name of a company that is claimed to have some sort of representative authority. In the real world, it has no such authority and it performs no function. The second category (Tier 2) consists of companies that actually perform functions, but whose existence is concealed from the homeowner and from the Court. As well as almost all of the securitization infrastructures, tier one should be tier 2.
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As a matter of policy, prudence, and required risk management, none of the tier 1 companies are permitted to actually perform any financial service or accounting. They do not receive or disburse funds. Therefore they do not originate any data input regarding the receipt or disbursement of money.
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The tier 2 companies that actually perform the services are contractually bound to the intermediaries for the investment banks. The tier 1 companies who allow their names to be used on the letterhead of correspondence and notices (and payment history reports) have no contractual relationship with the investment banks who are avoiding vicarious liability for the mini intended and unintended violations of lending and servicing laws.
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Companies like CoreLogic, CoreLogic tax, Black Knight, FiServ, etc. are tier 2 businesses whose only allegiance, contractually and equitably, is to the investment banks. They are not controlled in any way by any tier 1 companies (including but not limited to companies claim to be a “servicer”). But they are controlled by the investment banks, who direct every action performed by every tier 2 company including law firms.
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Tier 1 companies are merely names acting as placeholders for the investment banks who distance themselves from the business of collecting and communicating with homeowners and other consumers who consider themselves to be borrowers, even if they are no longer borrowers because their loan account receivable has been retired through the receipt of money by the originators —- all of them. Yes, it is like organized crime but in all honesty, so is almost every capitalist enterprise. The structure though is not what creates the crime, it is the intent and effect that makes it illegal either in violation of civil or criminal laws.
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The purpose of all tier 1 companies is to create a mirage. The resulting illusion is filled in by individual presumptions that are not based on fact but rather based on apparent facial validity derived from fabricated documents containing false information — i.e., reporting or memorializing transactions that never occurred.
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Real transactions are concealed and underreported even to regulatory agencies. Such transactions are never disclosed to consumers and homeowners. In this world of illusions, apparent fascial validity has been Weaponized to create the erroneous presumption that a trust account exists, under the supervision of a trust officer, for a brand-name bank.
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The further presumption is that within that trust account is a loan Account receivable due from a particular homeowner. But in reality, there is no trust account, there is no trust officer, and there is no loan account receivable.
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Because of the complexity required to conceal the illegality of the securitization scheme, no information is offered to any homeowner or regulator that would alert them to the fact that fictitious labels are being attached to nonexistent accounts. And most homeowners and regulators lack the resources to investigate the actual money trail.
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So they rely upon the paper trail instead and that is the residence of moral hazard. You can say anything on paper, and it tends to be believed even if it would be met with skepticism if spoken aloud. The investment banks completely understand this dynamic and they have weaponized it to the point where they have established a national narrative with false labels resulting in the collection of illicit profits damaging homeowners and all taxpayers supporting federal, state, and local government.
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DID YOU LIKE THIS ARTICLE?

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

CLICK TO DONATE

Click

Neil F Garfield, MBA, JD, 74, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
*

FREE REVIEW: Don’t wait, Act NOW!

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

How Likely Is It That a Homeowner Will Win a Foreclosure Case?

The answer to this question depends upon the homeowner — not the judge.
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If the homeowner rigorously, aggressively and persistently seeks enforcement of the rules of civil procedure, the rules of discovery, the rules of evidence and enforcement of court orders, the chances of quite good that the homeowner role reach a very favorable result.
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If the homeowner attempts to make a claim or state and affirmative defense that requires proof of malfeasance by the opposition (or anyone else), probability of failure is extremely high.
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The general consensus has accepted the proposition set forth in the national narrative promulgated by investment banks. Therefore nearly everyone — including the homeowner and the attorney for the homeowner at times — has accepted the label of “loan” as being the equivalent of an existing loan account receivable which obviously is enforceable at law and in equity (foreclosure of the mortgage).
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Having adopted the narrative and fictitious Terminology of Wall Street, everyone has also therefore accepted the labels of “servicer,” “trust,” “trustee,” etc. This in turn has resulted in the acceptance of the production of a “payment history” report in lieu of producing a copy of the loan account receivable. The question of whether or not the lawyers are representing a client who owns a loan account receivable that is due from you is avoided.
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The above summary is the backdrop for all litigation involving Foreclosure in both judicial and non-judicial states. It is so widely accepted by nearly everyone involved, and so often admitted (tacitly or directly) that judges usually regard defenses and claims from homeowners as being technical nuisances instead of a direct attempt at stopping fraud. That is their initial impression and there is nothing that can change that initial impression.
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But after their initial impression, the litigation begins and the judge is constrained to follow the rules of court.
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All of the cases that I have won outright or settled on terms that people might think are ridiculously beneficial to the homeowner has involved a very skeptical judge who change their mind during the course of litigation. I will also say that as a general rule, the older and more experienced judges will tend to be even more biased at the beginning of the case but will strictly apply the rules of court during litigation.
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The key to winning or losing is in the rules of procedure, the rules of discovery, and the rules of evidence. The defense strategy that tends to work most of the time is one in which the lawyer representing the homeowner continually attacks the ability of the foreclosure lawyer to produce any corroborating evidence for the conclusions that are alleged by the foreclosure complaint or presumed from the filing of apparently facially valid documents to support a non-judicial foreclosure.
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As it turns out, an aggressive and persistent strategy based on demonstrating the unwillingness or inability of opposing counsel to comply with the rules of procedure, rules of discovery, the rules of evidence and court will usually successfully reframe the case from the initial erroneous first impression of “bank versus deadbeat homeowner” to “judge versus recalcitrant foreclosure attorney.” When that happens, and it usually does, the judge always wins and the result is favorable to the homeowner.
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The way that lawyers and pro se litigants have undermined the strategy, is by attempting to go further than simply defeating the action against them. They attempt to prove fraud or other malfeasance, despite their inability to produce any evidence that would prove the required legal elements of such claims. In doing so, they shift the burden of proof from the foreclosure attorney to themselves. And they lift the burden of proof on their own claims from simply more likely than not to clear and convincing.
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Since we already know that nobody from the “Dark Side” is going to give you any information that will prove or corroborate anything you want to say, it is a fool’s errand to allege a claim or affirmative defense and that you will never be able to prove. My experience is that these cases can be defeated most of the time if the homeowner sticks with the goal of simply defeating the claim. But as soon as they step out of that lane, they are headed for failure.

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And of course, in order to pursue a successful strategy, you at least need to pretend that you believe that there is no loan account receivable and therefore nothing to enforce. And if you’ve gotten to the point where I am, you will be completely confident that that is true. I have reviewed over 10,000 cases. There has not been one instance in which a loan account receivable was ever produced.
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The substitution of a payment history report generated from third-party vendors has never been a legal substitute for producing the loan account receivable, and an acknowledgment or attestation from an officer of the named claimant that the loan account receivable belongs to (is owned by) that named claimant. In all the cases that I have reviewed no such acknowledgment or attestation has ever been made. All of those functions are produced under the name of a company that is claimed to be a “servicer” but which does nothing in connection with the receipt and disbursement of any money.
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PRACTICE NOTE FOR LAWYERS: The successful argument for legal standing at the commencement of the case is NOT proof of legal standing. And the argument regarding Article 3 (UCC) enforcement of negotiable instruments is not a substitute for normal legal standing required by Article 9-203 for enforcement of security instruments (mortgages and deeds of trust).
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The object is to show that the foreclosure mill is unwilling or unable to produce the loan account receivable or any acknowledgment or attestation or testimony from an officer of the named claimant. You can show that because there is no loan account receivable and there is no officer willing to perjure themselves. there are no trust accounts managed by REMIC trustees, and even if there were, they would not, do not, and could not contain a loan account receivable due from the homeowner.
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The naming of a company as a “servicer” does not mean it handles receipts, disbursements or accounting for any movement of money. Such a company will be presented as the authorized representative of the named claimant but the named claimant never appears in court. Once the foreclosure mill fails or refuses to comply with discovery demands, their claim that the “servicer” is authorized to act for the claimant also fails because it is not relevant. If the named claimant has no ability to support a claim, then the agency of the “servicer” is irrelevant. The claim lacks foundation.
*
DID YOU LIKE THIS ARTICLE?

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

CLICK TO DONATE

Click

Neil F Garfield, MBA, JD, 74, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
*

FREE REVIEW: Don’t wait, Act NOW!

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