Is it a trust or not?

As it relates to ownership of the subject underlying debt in a claim for foreclosure it is almost certain in every case that no trust exists.

As it relates to ownership of some hypothetical interest in something that has nothing to do with the foreclosure, it is possible that a successful argument can be made for the existence of a trust, assuming the necessary elements are present.

You need to know the legal elements of a trust entity that can be recognized at law. Every trust must have these elements.

  • Trust agreement
  • A trustor or settlor
  • A trustee
  • Beneficiaries who are identified and named
  • Some legally recognized interest, property or investment that has been entrusted to the trustee to manage on behalf of the beneficiaries. (also known as the res — the thing).
In most cases a trust agreement exists but is not disclosed. That is because the beneficiaries are identified as investment banks. The trust agreement also reveals that the trustee and the trust only have an interest in the title documents naming the trustee for the trust.
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The trust agreement specifically disclaims any right, title or interest in any claim or obligations arising from such documents. That means there is an express written disclaimer of any claim against any homeowner. This in turn means that neither the trustee or the trust can legally claim to possess legal standing unless you tacitly or overtly admit it. If you are deemed to have admitted anything about the existence and relevancy of the trust the judge has no choice but to treat it as a trust — probably a trust that owns your underlying obligation.
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So instead, the Foreclosure Mills use pooling and servicing agreement that they referred to as a trust agreement. But it is not a trust agreement if it does not contain the required elements of a trust. So instead, the Foreclosure Mills use a pooling and servicing agreement that they refer to as a trust agreement. But it is not a trust agreement if it does not contain the elements referred to above.
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But if you refer to it or accept it as a trust, the judge has virtually no discretion. If both sides agree it is a trust, then for purposes of the case, it is a trust.
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Practice Hint: Don’t admit or refer to the claimant as a trust. Either the trust does not legally exist or it barely exists but that fact has no relevance to ownership of your obligation. The presumptions arising from apparent possession of the promissory note are easily defeated if you do not admit the existence of the trust and if you demand a copy of the signed, dated trust agreement.
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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.

Click

Neil F Garfield, MBA, JD, 74, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us. In  the meanwhile you can order any of the following:
CLICK HERE 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.
*
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.

The difference between forensic and legal analysis

You need both. One identifies the factual issues that are inconsistent with the claim against the homeowner. The other identifies the legal issues asserted by the foreclosure mill that are not supported by fact and the procedural issues and hurdles you must jump over to mount a successful defense.

The obvious problem is that homeowners do not know where to turn when presented with a claim for administration, collection or enforcement of a written promise that they issued on a promissory note. Back in the 1960s the United States Congress determined that homeowners did not know what they were signing when they were executing documents supporting a reported loan transaction. That is why they passed the Federal Truth in Lending Act. (TILA)

TILA provided the minimum foundation for disclosures and conduct in connection with such transactions or anything that looked like a loan transaction. But ever since the passage of that legislation, it has become custom and practice in the industry to avoid or escape the requirements in the act or any liability for the violations.

We are at the point where nearly all of the documents that are used in connection with transactions with homeowners are faked in whole or in part, in order to create the appearance of compliance and facial validity. This shows up in affidavits and declarations that are tendered to the court, falsely, in support of nonexistent claims for nonexistent debts.

“Nonexistent debts” are debt claims that have no foundation in fact as to the party making the claim. Debt is a duty. If you have no duty to pay the party making the claim, then as between you and that claiming party, there is no debt. And that is precisely where nearly all foreclosures filed in the U.S. for the past 2 decades should have failed.

They mostly didn’t fail because the perpetrators knew more about legal analysis and court procedure than the victims — homeowners. My objective is to give you as much information as possible so that they do fail most of the time, which in my opinion is as it should be — for reasons that I have stated elsewhere on this blog.

Judges look at both of the documents and the affidavits and declarations through the lens of an assumption that the transaction with the homeowner is exactly what the Foreclosure Mill says it is. Because of currently accepted methods of pleading and procedure, the manner in which Foreclosure claims are litigated is contrary to the manner in which all other civil claims are litigated.

This is the basis for the current movement to petition the Supreme Court of various states to change the pre-approved forms for pleading or initiating any foreclosure action. The simple basis for that is that in all other civil claims, the party making the claim must assert and not merely imply their standing to bring the claim.

This anomaly has resulted in tens of thousands of cases in which after years of litigation the court is forced to dismiss the foreclosure because it never should have been filed in the first place. And with increasing frequency, the courts are denying the award of attorney fees to homeowners.

After spending thousands or even tens of thousands of dollars the homeowner is faced with a court victory which only occurred after years of litigation only to find that the claim is brought again with some minor changes in the wording of the falsified documents.

Those changes neither assert nor change the reason why the first action was dismissed but the homeowner is forced once again, to completely litigate a case that never should have been filed. All of this occurs because, contrary to law, the forms used in most states don’t require the claimant to assert a duty owed by the homeowner to the party making the claim, the breach of that duty and the current damages suffered by the claimant as a result fo that breach,

My opinion is that virtually none of the foreclosures should’ve been filed in the first place because all of the Foreclosure players were doing it for profit and none of them were doing it for restitution of an unpaid debt as shown on a loan account receivable on the books and records of some creditor who had paid value for the underlying obligation.

So here is my analysis of one declaration that popped up in Hawaii. It can be used as a guide for the analysis of any other documents that are submitted by or on behalf of the Foreclosure Mill. Please note my use of the words “by or on behalf of the Foreclosure Mill.” This is because my research and investigation have yielded a conclusion, to wit: virtually all documents produced in the name of a company that is designated as a trustee, servicer or law firm are actually produced by a third-party vendor who in most cases have no relationship with the trustee, servicer or law firm.

Minh Nghiem DECLARATION OF COMPLIANCE
  1. “Document Execution Associate” implies that the sole job of the person whose signature appears at the end of the document is to be an associate of a document executioner. This is double talk. Being tasked with the job of affixing one’s signature, whether it was by hand or produced by mechanical means (most likely) is NOT the same as being authorized to sign it by someone who has the authority to task that person to execute such a document. The document does not even recite the customary “Prepared by” stamp or designation. This is a common wording trick used by or on behalf of the foreclosure mills who attempt to make claims against homeowners. We don’t know anything about whether the person whose name appears in the declaration knew or had any powers associated with making declarations on behalf of multibillion dollar banks or implied trusts allegedly managed by such bank. The notarization occurs far from the office of either the designated servicer or the designated “trustee.” PRACTICE NOTE: The approach to the court should be civil but prepared to go against the judge’s inclination to regard the attack as just a  technical means to avoid the consequences of an unpaid debt. Start with your mantra and keep repeating it: “Your Honor, our defense narrative is that there is no obligation in relation to any of these parties who are participating in this illegal foreclosure attempt. Our position is that these parties are part of an illegal conspiracy who are pursuing   claims in derogation of both the rights and duties of the homeowner and the rights of whoever has paid value for the underlying obligation under Article 9 §203 UCC as adopted by our state statutes verbatim.
  2. “Under penalty of law” is not the same as under penalty of perjury. There is no agreement for the signor that if the contents of the document are false the declarant agrees they are committing perjury, subject to prosecution. Instead upon inquiry the person, if they exist and can be found, will and does regularly delcare that they had no idea what they were signing or they will deny that they have ver singed anything.
  3. No declaration of personal knowledge, therefore the declaration is hearsay subject to motion to strike.
  4. Declaration of “authorization” does not state who authorized her and how.
  5. NO declaration of employment or official capacity. Motion to strike should be directed at witness competency — the components of which are — OATH, PERCEPTION, MEMORY AND COMMUNICATION. She perceived nothing, she might not have taken an oath (no recital that she did), her memory of personal perceptions is nonexistent. As for communication it is doubtful she ever prepared, read, executed or understood what was in this declaration.
  6. Declaration does not state foundation for making the the statements that Mr. Cooper is authorized to sign on behalf of U.S. Bank.
  7. The Declaration does not state the foundation for making the statements that U.S. Bank, either as trustee or in its individual capacity (or the implied trust) possesses the legal authority to grant the authority to issue, sign or deliver this declaration.
  8. Declaration does not state foundation for making the statement that U.S. Bank, either as trustee or in its individual capacity (or the implied trust) possesses ownership of the underlying subject obligation pursuant to Article 9 §203 of the UCC as adopted by Hawaii statutes.
  9. Declaration does not state foundation for making the statement that U.S. Bank, either as trustee or in its individual capacity (or the implied trust) possesses the legal authority to administer, collect or enforce the underlying subject obligation.
  10. Declaration does not state foundation for making the statement that Mr. Cooper performs servicing functions or is otherwise a servicer as the term is commonly used to describe a company that processes receipts and disbursements of money ancillary to a loan receivable account maintained by the creditor.
  11. Declaration does not state foundation for making the statement that the transaction is or was a loan transaction since the declarant obviously has left out any assertion that she knows anything about the transaction.
  12. Declaration is carefully worded to describe a “Duty” as “servicer” without stating that Mr. Cooper has the authority granted by any creditor. NOTE: Normal wording taken from other documents that are used by U.S. Bank and other banks is to say that Cooper is authorized to perform specified servicing functions on behalf of an identified (not implied) creditor as provided in some referenced document like a servicing agreement. Such relationships do not exist in a vacuum. Such wording is evidence of deception. The sue of the word “Duty” is usually applied to provide the basis of a claim against the company identified as a servicer. It is not applied as the basis for asserting legal authority without stating that it is asserting legal authority.
  13. The declaration asserts ownership of the note and mortgage seeking the reader to infer that the “Plaintiff” has paid value for the underlying obligation in exchange for ownership of it. We know that did not happen. So note that the declaration fails to state that anyone has purchased the obligation, legal debt, note or mortgage from anyone who owned it. Note also that the declaration fails to identify the source of authority to enforce the note. This might not be the subject a motion to strike but should be the subject of intensive discovery, the result of which in all probability will be that that no transaction ever occurred involving the “plaintiff” in which ownership or authority was granted to the Plaintiff by any creditor who owned the underlying subject obligation by virtue of having paid for it.
  14. The last point is that it is highly unlikely that the law firm didn’t know that this was a fabricated, false document that was either forged or signed without authority. So an interesting point is directing the discovery and motions to compel and motions for sanctions in points about which the lawyers will provide no answers — daring you to pursue them. Once you get an order of sanctions on the relevant topics, you might add a new motion for sanctions directed against the Plaintiff and its attorney for intentionally filing false instruments. Perhaps even a referral to the state bar association.
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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.

Click

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

 

Broward judge ignores tainted bank documents to justify foreclosures, watchdog report charges

The only thing I would add to this article is that homeowners and lawyers should find ways of supporting floridabulldog.org and attorney Bruce Jacobs. He has the courage to be “discourteous” to liars and thieves and those who are willing to wink and nod as fake documents are used to press false claims.

see https://www.floridabulldog.org/2021/07/gundersen-ignores-tainted-bank-documents-to-justify-foreclosures/https://www.floridabulldog.org/2021/07/gundersen-ignores-tainted-bank-documents-to-justify-foreclosures/

 

Keep the envelope!!!

… the point you are (or should be) asserting is that the company being used as a source of documents and source of testimony (the apparent servicer) about the homeowner transaction had nothing to do with the origination, maintenance, administration, accounting, custody, collection or enforcement of the rights and obligations arising from the original transaction. Therefore nothing it wants to say and no document it wants to produce as a report is admissible into evidence. It is ALL HEARSAY. And if it was admitted over objection and then you develop this point, it is subject to a motion to strike, and then a motion for dismissal because there is no other evidence left to consider.

Hat tip Summer Chic

Our investigations have revealed that in more than 99% of all homeowner transactions, correspondence, notices, response to QWR, response to DVL, and response to forbearance or modification is not generated by the company claiming to be the servicer. Further, our investigations have revealed that although you might direct your letter or payment to the name of the company claiming to be a servicer, it is not received by them.

Through a network of third-party outsource contracts the actual work of receiving, depositing and disbursing the proceeds of payments is conducted by other companies. The actual work of sending you responses, correspondence and notices is also performed by third parties. And the work of accounting for payments is performed by the companies that actually received those payments — not the apparent servicer.

Those third-party companies are subject to agreements for “contract administration.”  Some of them are referred to as “corridor” agreements (most commonly with Bank of New York Mellon. None of the  third parties are subject to the control, instruction or ownership of the company that is pretending to be a servicer. Even the call center is usually manned by non   -employees or contractors of the apparent servicer. The illusion is complete. The apparent servicer is a third party to everything about the homeowner transaction but it looks like it is in charge.

Since several different companies perform different tasks that are attributed to the apparent servicer, and those companies do not communicate with each other, the responses you get will be inconsistent and even relate to the wrong transactions. It will also not be the response of an actual servicer as the term is generally understood — i.e., the company that receives and disburses money from payments received from homeowners. The structure requires one company to receive the payment, another company to account for it and still another to disburse and account for that function.

There is no signature on most correspondence you will receive because there is very little human intervention in the process. That creates a seemingly airtight argument for plausible deniability for “mistakes.” But that seal can be broken by skilled trial lawyers.

The bottom line is that you’re not corresponding with or communicating with the company claiming to be a servicer. One of the ways that you can corroborate this is by holding onto all envelopes that your receive that appear to bear the name of the company you thought was a servicer. You will note, as Summer Chic, has pointed out, that the zipcode will almost never correspond with the address of any office operated by the company claiming to be a servicer.

That corroborates but does not prove that the company is not performing servicing functions and in the courtroom, it is important to understand the difference.  But corroborating evidence is like circumstantial evidence — the more you have the more you can argue you proved the ruth of the matter you’re asserting.

And in this case, the point you are (or should be) asserting is that the company being used as a source of documents and source of testimony about the homeowner transaction had nothing to do with the origination, maintenance, administration, accounting, custody, collection or enforcement of the rights and obligations arising from the original transaction. Therefore nothing it wants to say and no document it wants to produce as a report is admissible into evidence. It is ALL HEARSAY. And if it was admitted over objection and then you develop this point, it is subject to a motion to strike, and then a motion for dismissal because there is no other evidence left to consider.

A common example to look for is who is paying the taxes. If it is CoreLogic, something is up. It obviously does not claim to be a creditor or a servicer. In discovery, the homeowner should subpoena a person from CoreLogic, duces tecum, and ask for agreements that show why CoreLogic would pay for the taxes. CoreLogic is supposedly just a computer processing company.

DID YOU LIKE THIS ARTICLE?

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

Click

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

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

You are Invited to APON’s Online Q & A 4:30 PM EST, Tuesday, July 6th

PRESS RELEASE—for immediate release

July 1, 2021

For inquiries, please contact:

admin@apropertyownersnetwork.org

941-237-0558

American Property Owners Network Plans to Help Pandemic Victims Fight Foreclosures

You are Invited to APON’s Online Q & A 4:30 PM EST, Tuesday, July 6th

Click Here for the link and contact information to register (subject to approval) for the public to join the introductory Webinar):

The American Property Owners Network (APON), a new non-profit organization whose mission is to help unite homeowners and property owners against massive lending and foreclosure fraud, is going to court in Florida with a formal action to change foreclosure court process and forms.

If successful, the APON suit could greatly limit the ability of current foreclosing parties to take people’s homes and property. Currently millions have lost their homes in court actions which are often based on false claims of ownership, and APON’s court action would disallow such foreclosures . APON will be hosting a Zoom Q & A Webinar/Press Conference regarding the new organization, the current state of the foreclosure debacle, and the Florida Supreme Court action on Tuesday, July 6th at 4:30 pm.

APON’s court action, a formal petition defended by an attorney, formed out of concern about the undue influence of global banks and the financial sector over our lives, as well as how the pandemic will affect homeownership. Nationally-known financial expert and foreclosure defense attorney Neil Garfield and GTC Honors will lead the fight at the Florida Supreme Court for APON.

The petition to the Florida Supreme Court is a formal proceeding that would essentially conform rules, forms and court procedures to the current realities arising from claims of securitization of debt. This situation gives rise to false documents being filed in court by what appear to be Trusts backed by big financial institutions, which actually have no legitimate claim, or right, to any debt.

APON is hoping to attract anyone in the general public who cares about fairness in our courts, as well as those who may want to be considered in any APON mass actions against those responsible for fraudulent foreclosures, and/or could benefit from APON members’ online self-help groups. They also seek to support the many lawyers who have faced disbarment for representing homeowners. The webinar on Tuesday will be an introduction to a CLE series APON plans to offer: How to Successfully Defend a Foreclosure.

At the upcoming introductory webinar, those who are members of the public or APON who are victims of fraudulent foreclosure will ask questions first, followed by the press. Attendance is free, although APON is requesting that people become members, if possible, when registering (free attendance is being offered through the Living Lies blog only, currently). Any donations to APON will be used to support APON’s litigation.

Here is the link and contact information to register (subject to approval) for the public to join the introductory Webinar):

https://us02web.zoom.us/webinar/register/WN_obbjarC1RKm4Iw2BgMqUbQ

To find out more, to donate, to sign up to be a member and/or to volunteer, go to www.apropertyownersnetwork.org.

PRESS INFO Press who wish to attend should email APON Secretary Ann Chin at admin@apropertyownersnetwork.org for a “press pass” (the link to the actual Webinar).

American Property Owners Network’s mission is to obtain justice for victims and survivors of unlawful foreclosures through political and mass judicial action; to restore the integrity of public land records and the judicial processes; and to educate the public. Go to www.apropertyownersnetwork.org to find out more.

Successful and Unsuccessful Appeals.

you can use your knowledge … to ask for things that the foreclosure mill will never provide even though they are required to do so under the rules of civil procedure and more importantly under the terms of a court order issued by the judge commanding them to comply with the discovery demands. That is where most homeowners prevail in the trial court and that is where most homeowners are able to win on appeal despite the heavy statistics against them.

By the time you get to appeal the appellate judges and their clerks are not interested in the truth of the matters asserted and accepted into evidence in the trial court with certain exceptions that don’t really apply to foreclosures.

The presence of a company claiming to be a servicer strongly indicates that your transaction was subjected to a process of securitization in which your underlying obligation was extinguished. This means that the loan receivable account was either never created or was retired. You will never prove that statement.

But you can use your knowledge that the statement is true to ask for things that the foreclosure mill will never provide even though they are required to do so under the rules of civil procedure and more importantly under the terms of a court order issued by the judge commanding them to comply with the discovery demands. That is where most homeowners prevail in the trial court and that is where most homeowners are able to win on appeal despite the heavy statistics against them.

Trial litigation is the time and place where properly presented narrative, objections and motions are filed.

On appeal, the best rule of thumb is that the appeal will be denied statistically and that it will especially be denied if you do not cite the specific errors that you are saying were committed by the trial judge. The second rule of thumb is that you will most likely lose on appeal unless you can present convincing arguments that the procedural error (the only kind of error that is normally accepted by the appellate court) resulted in preventing the homeowner from pursuing a credible defense narrative — and that narrative if true, would result necessarily in a different final judgment or ruling.

The test employed by all appellate courts seems to be this: if there is any basis for affirming the trial court’s behavior, order, judgment or decision they will do exactly that. This comes from the centuries-old practice of keeping all decisions as final except in the face of clear error.

Any argument that complains about the trial judge’s bias, onions, or personal judgment is likely to fail. Such arguments are viewed by the appellate court as attempts to have the appellate court sit as a trial court and reconsider whether the greater weight of the evidence supported one side or the other. That is not the function of appellate courts, and they are correct when they affirm a negative decision in the trial court.

BUT — if you can point specific instances in which the homeowner was denied due process, then you have an issue that will be reviewed and could result in the reversal, remand and instructions to the trial judge. This is not an easy issue. The most common is that summary judgment was granted despite the presence of outstanding discovery demands.

But if the court record contains tacit or express admissions about the “loan” being sold into the secondary market or that it was securitized, it will be difficult, if not impossible, to show that the trial judges rendition of a Final Judgment of Foreclosure had no possible foundation in the record.

Many pro se homeowners get led astray looking for magic bullets. So they point to defects that have both factual and philosophical merit. But the courts tend to review such arguments as being an attempt to relitigate the foreclosure. Defects in documents or procedures are not reversible error ipso facto. Such defects must be shown to have actually altered the outcome of the case if the defects had been properly presented to the court in a timely manner.

In many cases I must deliver my opinion that the homeowner’s chance to have presented such defects expired regardless of whether you presented them or not — unless there is later acquired evidence that you could not have otherwise obtained (best if it relates to facts that occurred after judgment). But where the case has progressed so far procedurally — such as in what is generally reported to me — other options, in my opinion, present better strategies with a higher likelihood of success or a satisfactory result.

In plain language, a lawyer can be retained to review the briefs but the great likelihood is that he/she will forecast failure on appeal and it might even be to your advantage to dismiss the appeal. Check with local counsel. A negative opinion from an appellate court is one more nail in the coffin of your defensive narrative and strategy. It raises additional negative inferences and legal presumptions.

Of all the possible strategies I have seen in thousands of cases the one that works best, by far, is the case where the homeowner is able to get back into a position of making discovery demands that relate directly to the core issues of the case. This may involve complaints, under the FDCPA, FCRA, RESPA and even TILA. And this is probably going to be supplemented by a petition for Declaratory, Injunctive and Supplemental Relief.

DID YOU LIKE THIS ARTICLE?

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

Click

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

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

Tonight! American Property Owners Network (APON) Coming to Your Town 3PM PDT 6PM EDT

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

with Charles Marshall and Bill Paatalo

Or call in at (347) 850-1260, 3pm Pacific Thursdays

Bill Paatalo will join host Charles Marshall to discuss how lenders behind securitized trusts such as US Bank, has no contact with the so-called certificateholders who would presumably possess bona fides to confirm the status particulars of the mortgage debt. Moreover, certificate holders cannot even be identified typically, nor can accounting of payments to certificate holders be verified.

First though, Charles and Bill will discuss the American Property Owners Network (APON), a new non-profit organization whose mission is to unite homeowners, ultimately nationwide, and rental property owners against the massive lending and foreclosure fraud perpetrated across the country since the Mortgage Meltdown of 2008. APON is coordinating with Neil to bring a formal, legal petition to the Florida Supreme Court to bring not just uniformity but fairness to Florida legal procedures used to adjudicate legal disputes involving mortgage debt securitization. The goal is to enable legal procedure which would disable the institutional lenders and mortgage servicers from continually gaming the legal courts as they do now, and instead enable homeowners to meaningfully have their legal evidence properly considered.

There will be a webinar presented by APON with a Question and Answer session this July 6, 2021, 430 pm EDT. Mark your calendars, and see Neil’s Blog for more information.

Finally, Charles will discuss the latest on the Covid-19 foreclosure and eviction front, with an update on how both the national foreclosure and eviction moratoriums have been largely extended through September 30, 2021, with states like California continuing their moratoriums as well.

The Effect of Provisions for Waiver and Release in Forbearance and Modification Documents

It is not the act of forbearance that admits the existing default. It is the agreement or forbearance that creates an apparent waiver and release of all claims or crimes that might relate to challenges to the existence of the underlying obligation, existence of a financial loss (default), and challenges to any claim of Rights to administer, collect or enforce the alleged obligation that is due to the Creditor.

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Most people look at the agreement and “realize” that they have signed away their rights. But it is not that simple. Agreements, or parts of agreements, that violate public policy or other state law, or which are unconscionable, or which have been procured under trick or deceit, are void. So are agreements that were not authorized in the first place. But in order to reach that conclusion, you need a court order that says that the homeowner’s waiver is not valid. This would also raise the issue of whether or not the forbearance agreement created an entirely new loan agreement.

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There can be little doubt that nobody would sign a forbearance agreement but for the fact that they were under duress (threat of foreclosure and eviction) and coercion (repeated illegal correspondence and phone calls). There also can be little doubt that the agreement itself a subject to question simply because it does not identify any creditor, nor does any creditor acknowledge or approve of the forbearance agreement.
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If anything it appears to change the original contract to a designated creditor instead of a real one. This is the bridge concocted by Wall Street lawyers to get rid of that pesky problem of the absence of loan receivable account, anyone who could own and anyone legally authorized to administer, collect or enforce the underlying debt, note mortgage, or right to collect.
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The Foreclosure Mills are well acquainted with the fact that the waiver Provisions contained in a modification or a forbearance agreement are probably not enforceable. Transaction lawyers insert such provisions because in most cases either the opposing party or their attorney assumes the provision is valid. It’s another hurdle because like all foreclosure claims it raises the presumption of legality and enforcement that can be contested but rarely is contested.
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This is another one of those cases where assumptions create obstacles to a successful challenge against a party who purports to execute a substitution of trustee, notice of default, notice of sale, and “verified” complaint.
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The lack of knowledge of the procedural requirements in court, combined with the failure to research the enforceability of waiver and release documents are a deadly combination for the prospect of a successful outcome of a contesting homeowner.
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For those of you who wish to perform legal research and analysis in connection with fraud upon a homeowner and fraud upon the court I recommend the following article as a starting point for the research and analysis. (see attached)
DID YOU LIKE THIS ARTICLE?

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

Click

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

FREE REVIEW: Don’t wait, Act NOW!

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

Interesting SCOTUS Decision May Prevent Removal of Certain Lawsuits to Federal Court Where They Normally Die

The full impact of this decision may not be known for years. But the immediate impact is that it gives homeowners a chance to move for remand back down to state court after attempted removal to Federal Court. Unless clarified later, which does not seem likely, this decision could mean that the Supreme Court of the United States says that Federal Courts have no jurisdiciton to hear statutory claims that can be filed in state courts. Here is the bonus: most statutory claims that can be filed under FDCPA, FRCA, RESPA, TILA etc can be filed in state court.

Specfically this means that if no actual damages are alleged (i.e., only statutory damages are claimed) then the Federal Court has no jurisidicition. So the court in attempting to minimize actions by consumers who are victims of illegal collection activities merely diverted them to state courts.

One of the interesting subissues is that these statutes may contain provisions (FRCA) for the judge, in his/her discretion to award punitive damages and this seems likely for class actions to rise rather than fall as seems to be intended by SCOTUS. Withte higher prospect of obtaining attorney fee awards and punitive damages this might make the cases more interesting.

see https://www.jdsupra.com/legalnews/scotus-deals-blow-to-federal-court-7203875/

TransUnion LLC v. Ramirez

Here is what is really wrong with foreclosure process

While I agree that in most cases there was no substantive transaction with homeowners or that the transaction was not correctly identified as to its components, I do not agree that there are no mortgages or notes.

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They plainly exist and even if they are not supported by consideration or are otherwise procured by fraud, duress or other illegal means, they still exist. As long as they comply with requirements for facial validity they also have legal effect until a timely and proper challenge is made by the victim.
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It is inappropriate to demand that a court be omniscient or even curious beyond the facts presented. The courts are limited to those facts and implications that have been presented, not those that could or should have been presented — at the time and place where the court record was open for receipt of such information. In nearly all cases the challenge to the initial presentation is nonexistent which results in the presentation being taken as true.
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The real problem here is that in virtually 100% of all cases that are won by homeowners the reason is that the case should never have been filed in the first instance. This determination only comes at the tail end of litigation instead of where it belongs — at the beginning.
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And this is caused by out-dated forms and procedures that allow for implications and presumptions of fact without the claimant ever being required to allege that the Defendant homeowner breached a duty owed to the Plaintiff and suffered a loss as a result of that breach.
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The law is clear. It is the forms and accepted pleadings that are not clear. The attorney should be required to assert that due diligence had been performed and an officer of the named Plaintiff should be required to assert the existence and right to administer, collect and enforce the claim, along with the date of the breach and the fact that the Plaintiff had suffered a financial loss.
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As we have seen in thousands of cases settled under seal of confidentiality, such a requirement (which is applied in all civil cases except foreclosure) would result in the elimination of most foreclosure cases. Instead, judicial resources are wasted in processing illegal foreclosures lacking in any merit or foundation. And thousands of homeowners lose their homes and lifestyle to parties who are receiving foreclosure proceeds as revenue instead of restitution.
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The burden for such folly falls squarely on all defendants in foreclosure and the taxpayers who are paying for thousands of foreclosure cases that would never have been filed if basic pleading requirements were enforced. 

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The Hidden World of Foreclosure Auctions

Post-judgment or post-sale documents can be far more revealing than anything filed before the foreclosure is allowed or allegedly completed. They often admit lack of legal standing on the part of the original party named in the foreclosure. 

This phenomenon would not and could never occur if the forms allowed by courts and the government tracked the requirements of existing law that arose hundreds of years ago. It is axiomatically true that if someone has no claim they are not allowed access to the courts to try to collect money on something speculative. Every state has its own version of that in its statutes, state constitution, and cases.

Homeowners are discovering that there are a number of questionable practices in play, and they don’t like it. Recent reports out of Texas has at least one Austin homeowner complaining about the trustee turning down cash offers that could pay off the entire claim of indebtedness because of current hot housing market prices.

Why would a so-called “trustee” on a deed of trust turn down a cash offer that paid off the entire indebtedness and instead accept the credit bid of the fake creditor?

Actually, the person who first perceived this phenomenon was “Poppa” Koppa in San Diego who recognized a pattern between the amount reported by the investment bank, who didn’t own the loan, and the amount of the credit bid “on behalf of” the beneficiary under a deed of trust or the mortgagee under a mortgage deed. I wrote about it when he starting writing about it. That was in 2008.

Then there is the fact that most of the homeowner’s arguments about lack of standing are proven true if you follow the trail AFTER foreclosure —something which very few people bother to do.

For example, I have several cases in which the foreclosure was filed in the name of A Bank, N.A. as trustee for the SASCO Trust series 200X-A1 — and then at the sale or shortly after the sale, the name is changed to A Bank, N.A. as trustee for the SASCO Trust series 200X-A1, on behalf of the certificate-holders.

In more than one case the transfer of the credit bid or title does not receive any consideration and we all know there wasn’t any consideration for such transfers because no payment was due.

No payment was due because either no loan account receivable was ever created or it was extinguished the moment that the transaction was sucked into the vacuum created by the now infamous securities sales scheme devised by Wall Street investment banks.

But the point in this article is that the transfer of credit bid or title (after foreclosure is allowed) is a change of parties. If it wasn’t then there would be no attempted transfer on paper. It is the simplest of logical analysis.

If the transfer of parties is recorded in a written instrument that is NOT a memorialization of some business transaction then the paper instrument is pure fantasy. In law, we call that a “legal nullity.”

All business conducted after that transfer document is executed and recorded relies on that document as the foundation for conduct after foreclosure. So the players cannot logically or legally say it doesn’t mean anything. If it didn’t mean something to them, they would not have executed and recorded the document.

The point is that such conduct is a bold admission against interest — the original party in whose name the foreclosure was filed turns out not to have been the party who was intended to receive the benefit of foreclosure.

And THAT is exactly what the homeowner was saying from the start of litigation but could not prove or could not undermine the presumptions of false facts presented to the court, to the recording office, and to the world.

Post-judgment or post-sale documents can be far more revealing than anything filed before the foreclosure is allowed or allegedly completed. They often admit lack of legal standing on the part of the original party named in the foreclosure.

This phenomenon would not and could never occur if the forms allowed by courts and the government tracked the requirements of existing law that arose hundreds of years ago. It is axiomatically true that if someone has no claim they are not allowed access to the courts to try to collect money on something speculative. Every state has its own version of that in its statutes, state constitution, and cases. 

We currently use ancient forms that evolved long before anyone thought about  making “Securitization” claims on transactions that were labeled as “mortgage loans.”

The form approved by most state supreme courts allows a foreclosure plaintiff to survive a motion to dismiss merely by reciting the fact that a promissory note and lien were executed by the Defendant homeowner and then alleging that on some particular day the defendant homeowner did not make a payment scheduled on the promissory note.

Unlike every other complaint in every other civil case, there is no requirement that the Plaintiff state that the scheduled payment was due, that the Plaintiff had a right to receive it, that the Plaintiff owned the obligation and that the Plaintiff was injured by a breach of duty by the defendant homeowner.

None of that is required. And in every case won by homeowners the most common (by far) basis for ruling for the homeowner is that the court found that foreclosure should never have been filed in the first place because it did not conform to statutory requirements. 

Recognizing this phenomenon the courts and the legislatures started to require various forms of affidavits and certification but failed to require that the affiant or signatory assert the basis for personal knowledge, due diligence, and certainty that an injury has occurred to the claimant arising from the conduct of the homeowner.

And the foreclosure mills have done everything from having their own personnel to having the personnel of third-party entities execute such documents to create the basis for plausible deniability.

Meanwhile, that same foreclosure mill has no attorney-client relationship with the claimant A Bank, N.A. and is also under no duty to assert such a relationship. It is implied by the fact that the law firm filed documents in the name of the claimant.

All of this forces the homeowner to engage professionals at the great personal expenditure of time, money, and energy to undercut nonexistent claims that only survive because they display the facial validity created by pre-securitization forms and are allowed to stand despite post-foreclosure actions that show that the homeowner was right in the first place. 

And this is why APON is sponsoring work on a petition to change those forms. The point is very simple and direct. If a lawyer goes to court, he MUST represent the client or implied account or else everything that transpires is void, not merely voidable.

see https://apropertyownersnetwork.org/

If the claimant attempts access to the court, neither the court nor the proposed target should be required to litigate to the end of a fictitious case to find out that there was no claimant and no claim.

DID YOU LIKE THIS ARTICLE?

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

Click

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

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

Making the Wrong Objection and Filing the Wrong Defense

The recent Compton Case in Hawaii illustrates the nuances that have been weaponized by the investment banks. It further illustrates basic errors in procedure and objections that continue to result in homeowners inadvertently aiding and abetting an illegal foreclosure against them.

see USB v Compton 6-21-21 HI SupCt

 

The decision is correct. The failure to contest the existence of the underlying obligation together with the authority to enforce the note forced the court to accept U.S. Bank as a holder with rights to enforce. The delivery to the court together with testimony that t the note was part of some collection of business records is not a proffer of hearsay.

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My point is always the same: if you don’t attack the central point of the case, you are admitting the central point. And that means you lose.
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Homeowners seem afraid or just ignorant of the fact that they can force the opposition to actually prove the existence of the underlying obligation and that the named plaintiff owns it. But contrary to the belief of lay litigants and some lawyers, denial is not enough. 

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The recent Compton Case in Hawaii illustrates the nuances that have been weaponized by the investment banks.

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The decision is correct. The failure to contest the existence of the underlying obligation together with the authority to enforce the note forced the court to accept U.S. Bank as a holder with rights to enforce. The delivery to the court together with testimony that the note was part of some collection of business records is not a proffer of hearsay. So the hearsay objection was wrong.

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The central point of every foreclosure case is that there is an underlying obligation owed to the plaintiff that has been breached by the homeowner. In virtually all current foreclosure cases this is not what happened. But if you admit it, then for purposes of the case the legal fact is that the plaintiff owns an existing obligation that was breached by the homeowner. It is all downhill from there.
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Homeowners seem afraid or just ignorant of the fact that they can force the opposition to actually prove the existence of the underlying obligation and that the named plaintiff owns it.
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But contrary to the belief of lay litigants and some lawyers, denial is not enough. Your opposition need only invoke legal presumptions arising from the facial validity of documents (even though they are false, fabricated, and forged) to satisfy their legal burden of proving the prima facie case. And that is why the homeowner must employ aggressive discovery tactics,s strategies and motions that reveal the unwillingness or inability of the opposition to back up the facts that are preliminarily presumed to be true.
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My observation is that the most common reason that this is overlooked is that the homeowner and lawyer cannot conceive of a scenario in which the underlying obligation does not exist. They arrive at this conclusion because the homeowner applied for a loan and believed that was what they received. Maybe they did.
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But the moment that the transaction was sucked into the securities scheme invented by investment banks, the loan account receivable was extinguished. And for legal purposes that means the obligation is extinguished because without owning the asset you are not allowed to claim a financial loss arising from damage to that asset. This basic pleading, without which there is no claim.
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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

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

FREE REVIEW: Don’t wait, Act NOW!

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

JOIN UP!!! APON Launches Webinar Series for Lawyers and Homeowners

American Property Owners’ Network

Plans to Stop Most Foreclosures—

Public Will Be Invited to APON’s Q & A Webinar

  4:30 PM EST, Tuesday, July 6th

Scroll down for registration information

The American Property Owners Network  (APON), a new 501C4 organization and others concerned about the undue influence of global banks and the financial sector over our lives, as well as how the pandemic will affect homeownership, are going to court in Florida in a lawsuit to change foreclosure court proceedings. If successful, the suit could greatly limit the ability of current foreclosing parties to take people’s homes and property, in court actions which are often based on false claims of ownership.  APON will be hosting a Zoom Q & A Webinar on Tuesday, July 6th at 4:30 pm.

Nationally-known financial expert and foreclosure defense attorney Neil Garfield and GTC Honors will lead the fight at the Florida Supreme Court for APON. The petition to the Florida Supreme Court is a formal proceeding that would essentially conform rules, forms and court procedures to the current realities arising from claims of securitization of debt.  This situation gives rise to false documents being filed in court by what appear to be Trusts backed by big financial institutions, which actually have no legitimate claim, or right, to any debt.

APON is organizing a Webinar and Membership Drive on July 6th at 4:30 pm EST with Neil Garfield to help educate the public and the press about the need for their rule-change petition. It is also a membership drive where APON is calling on all Americans to join who want to be considered in any mass action or are simply those who want to help protect the right to be treated fairly when obtaining a mortgage and to due process In court proceedings.

At the upcoming Zoom Webinar, representatives from APON and Neil Garfield will answer questions from participants and the press. Those who have joined APON will enjoy free admission to the event and homeowners who are members of APON will ask questions first, followed by the press. Membership dues and registration to the Webinar will be used to support the litigation, as well as political action for homeowners.

Here is the link to register for the Webinar (join APON first to register for free): FREE REGISTRATION FOR APON MEMBERS

To find out more, to sign up to be a member and/or to volunteer, go to www.apropertyownersnetwork.org, scroll down to the bottom of the homepage and fill out the form (to volunteer, scroll down to the end of the homepage article on multi-plaintiff actions and fill out the form). After you join APON you will be sent a registration link to the Tuesday, July 6th event. Those who wish to attend without joining APON, will have to donate $50 or more to attend.

American Property Owners Network’s mission is to obtain justice for survivors of unlawful foreclosures through political and mass judicial action; to restore the integrity of public land records and the judicial processes; and to educate the public. Go to www.apropertyownersnetwork.org to find out more.

 

Loans as Securities Investments: Homeowners Are Due Their Share of the Profits. Without them there would be no profits. Without their homes there would be no certificates sold to investors.

Since the first time I seriously looked at what securities brokerage firms on Wall Street talking about derivatives and securitization (around 1970), I have always thought that the consumer contract was a disguised securities scheme and that therefore the “sale” of the financial product sold to consumers and homeowners was in fact a security regulated by SEC laws, rules and regulations.

This makes the buying consumer an investor in the scheme entitled to share in profits and losses. The potential legal signficiance of this view is virtually earth moving: instead of foreclosures, should there instead be an enforceable duty to compute exactly how much homeowners should be paid to execute agreements that were misleading and that resulted in vast profits to the brokers who never appeared anywhere in the chain of title or even the chain of communication?

Just as importantly it casts doubt on whether there was any financial reason or consideration for the issuance of a promise to repay the money received under false pretenses — the main false pretense being that this was a loan transction when in fact it was the main leg of a stool supporting an enormous securities infrastructure — one that never involved sale of the financial product sold to homeowners, but which pretended to do so.

I invite comments on this article. I agree there are trapdoors on both sides but I remain steadfast in my view for very simple and direct reasons.

The sale of certificates to investors was marketed to them as a vehicle to become lenders without exposing themselves to any liability under any regulatory scheme — i.e., lending and securities laws did not apply to them — because they would never be treated or descirbed as lenders and the certificates woudl never be treated as securities — thus dodging any form of disclosure requirements.

The sale of financial products to homeowners was a concealed solicitation to invest in the securities scheme. Neither the investor who bought certificates (falsely masqueraded as “mortgage backed” “securities”) nor the homeowner would have participated if they had been informed through proper disclosure about the incentives and control of the brokerage firm. That is classic securities fraud. In order for the scheme to succeed, both sides needed to swallow the bulls–t.

So the following are some of my notes on the subject for your review and comment. This is not for the faint-heearted. If you are not steeped in legal analysis and preferably securities law, little of what is printed below will make any sense to you.

Notes on Residential Lending as a Hidden Securities Offering to Homeowners:

  1. “we are reminded that, in searching for the meaning and scope of the word “security” in the Act, form should be disregarded for substance and the emphasis should be on economic reality. S.E. C. v. W. J. Howey Co.328 U.S. 293, 298 (1946).” Tcherepnin v. Knight, 389 U.S. 332, 336 (1967)
  2. “As was observed in Howey, “it is immaterial whether the enterprise is speculative or nonspeculative.” 328 U.S., at 301. ” Tcherepnin v. Knight, 389 U.S. 332, 345 (1967)
  3. The SEC, in its brief amicus curiae submitted in this case, points out that it granted a temporary exemption from §§ 7, 8, 12, and 13 of the 1934 Act to passbooks of savings and loan associations, which were being traded on the Cleveland Stock Exchange shortly after the Act’s passage. The SEC also points out that it has repeatedly enforced the Act’s registration provisions against brokers and dealers whose business includes the solicitation of funds for deposit in savings and loan associations. Brief for the SEC 22-24 Tcherepnin v. Knight, 389 U.S. 332, 345 n.34 (1967)
  4. Whether the transaction was disguised as a loan instead of its true nature of being an investment, with attendant risks, into a securities scheme.
  5. Whether the post transaction managerial events (“servicing”), governed strictly under the control of investment banks, constitute “post purchase managerial activities?”
  6. Whether possession and record title constituted sufficient control to render the securities label inapplicable.
  7. Whether the selection of a trustee on a deed of trust mitigates the issue of control by the consumer?
  8. Whether the substance of the transactions was such that the the consumer was entitled to receive a share of the profits.
  9. Whether the instruments issued were a failed attempt to conceal the issuance of a security under false pretenses.
  10. Whether the consumer is entitled to civil damages, attorney fees, punitive damages?
  11. Is the transaction with homeowners similar to the withdrawal of a capital share as a security as stated in Tcherepnin v Knight.
  12. Does concealment of the investment nature eliminate the contract from being categorized as a security?
  13. More specifically does the lack of expectation of a return caused by concealment is a basis for treating and otherwise investment scheme into a loan.
  14. Does the lack of a promise of return eliminate the possibility of categorizing the transaction as an investment? Corollary, is the direct or implied promise of rising real estate process, together with inflated appraisals engineered by investment banks, constitute a sufficient representation of projected profits to constitute the transaction as an investment vehicle, albeit without the knowledge or consent of the homeowner?
  15. What is the product being marketed to the consumer — the property or the transaction?
  16. Since the promoters of the investment scheme expressly and specifically exclude themselves from lending regulations, do they therefore fall under securities regulation under Brockton Savings Bank v Peat Marwick 577 F. Supp 1281, 1284?
  17. Does the contractual duty to make payments to remote creditors constitute “pooling”, thus broadening the contractual understanding to include, by inference and substance the entire securities scheme?
See Florida Bar Journal July/August 2021 P.36 “Turnkey real Estate Investments as Securities”.
As used in both the 1933 and 1934 Acts, security “embodies a flexible rather than a static principle, one that is capable of adaptation to meet the countless and variable schemes devised by those who seek the use of the money of others on the promise of profits.”S.E. C. v. W. J. Howey Co., supra, at 299. We have little difficulty fitting the withdrawable capital shares held by the petitioners into that expansive concept of security.
Tcherepnin v. Knight, 389 U.S. 332, 338 (1967)
  1. Does application of the Securities Act of 1933’s protections make sense? Is there a person or entity others are relying on that plays a key role in the profit-making of the enterprise such that disclosure of their activities and plans would be important to investors? Do informational asymmetries exist between the promoters and potential purchasers/investors in the digital asset?
  2. Do persons or entities other than the promoter exercise governance rights or meaningful influence?

The Journey from Security to Non-Security: SEC Director Comments

SECURITIES CLAIMS
“The threshold question in any action brought pursuant to the Securities Acts is whether a security exists.” Union Planters National Bank v. Commercial Credit Business Loans, Inc., 651 F.2d 1174, 1179 (6th Cir.), cert. denied, 454 U.S. 1124, 102 S.Ct. 972, 71 L.Ed.2d 111 (1981). The Securities Act of 1933, 15 U.S.C. § 77b(1), provides:
When used in this subchapter, unless the context otherwise requires —
(1) The term “security” means any note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of interest or participation in any profit-sharing agreement, collateral-trust certificate, preorganization certificate or subscription, transferable share, investment contract, floating-trust certificate, certificate of deposit for security, fractional undivided interest in oil, gas, or other mineral rights, . . . or, in general, any interest or instrument commonly known as a “security,” or any certificate of interest or participation in, temporary or interim certificate for, receipt for, guarantee of, or warrant or right to subscribe to or purchase, any of the foregoing.
The definition of a security under the Securities Exchange Act of 1934, 15 U.S.C. § 78c(a)(10), is virtually identical. Tcherepnin v. Knight, 389 U.S. 332, 34288 S.Ct. 548, 556
Brockton Sav. Bank v. Peat, Marwick, Mitchell Co., 577 F. Supp. 1281, 1283 (D. Mass. 1983)
Although the certificate of deposit at issue in this case is not included specifically in the statutory definition, the definition is adaptable to the “countless and variable schemes devised by those who seek the use of the money of others on the promise of profits.” Securities and Exchange Commission v. Howey Company,328 U.S. 293, 29466 S.Ct. 1100, 110190 L.Ed. 1244 (1946).
Brockton Sav. Bank v. Peat, Marwick, Mitchell Co., 577 F. Supp. 1281, 1283 (D. Mass. 1983)
“In 1982, in Marine Bank v. Weaver, 455 U.S. at 559102 S.Ct. at 1225, the Supreme Court held that a certificate of deposit issued by a federally regulated national bank is not a security under the federal securities laws.” Brockton Sav. Bank v. Peat, Marwick, Mitchell Co., 577 F. Supp. 1281, 1283 (D. Mass. 1983)
“It is unnecessary to subject issuers of bank certificates of deposit to liability under the antifraud provisions of the federal securities laws since the holders of bank certificates of deposit are abundantly protected under the federal banking laws. ( 455 U.S. at 558-59102 S.Ct. at 1224-25)” Brockton Sav. Bank v. Peat, Marwick, Mitchell Co., 577 F. Supp. 1281, 1284 (D. Mass. 1983)
This case arose out of an attempt by the SEC to require Life Partners , Inc. (“LPI”) to register its offerings under the federal securities laws. LPI sells fractional interests in the life insurance policy of terminally ill people to investors, and markets the policies through a network of commissioned licensees. SEC v. Life Partners , Inc., 87 F.3d 536, 537-39 (D.C. Cir. 1996). The majority held that LPI contracts are not securities because they do not meet the Howey test for what constitutes an investment contract. Under the Howey test, “an investment contract is a security subject to the Act if investors purchase with (1) an expectation of profits arising from (2) a common enterprise that (3) depends upon the efforts of others.” Id. at 542; SEC v. W.J. Howey Co., 328 U.S. 293, 298-99 (1946). As the SEC notes, the court unanimously agreed that the first two prongs of the Howey test were met here. In particular, the majority noted that “horizontal commonality — defined by the pooling of investment funds, shared profits, and shared losses — is ordinarily sufficient to satisfy the common enterprise requirement” and specifically held that “pooling is in practice an essential element of the LPI program.” Life Partners, Inc., 87 F.3d at 544.
S.E.C. v. Life Partners, 102 F.3d 587, 589 (D.C. Cir. 1996)
interests in mortgage pools or commercial real estate (familiar examples of asset-backed investments) would likely qualify as securities even under their test, because of the post-purchase entrepreneurial and managerial activities required to make these investments succeed, it is not difficult to conjure up instances where their rigid “before-or-after” measuring stick would result in exempting the sale of other risky asset-backed interests from the scope of the securities laws.
S.E.C. v. Life Partners, 102 F.3d 587, 590 (D.C. Cir. 1996)
“the proper course of action for the district court (assuming that the plaintiff’s federal claim is not immaterial and made solely for the purpose of obtaining federal jurisdiction and is not insubstantial and frivolous) is to find that jurisdiction exists and deal with the objection as a direct attack on the merits of the plaintiff’s case.” Williamson v. Tucker,645 F.2d 404, 415 (5th Cir. 1981); see also McGinnis,918 F.2d at 1494.
S.E.C. v. Mutual Benefits Corp., 408 F.3d 737, 741-42 (11th Cir. 2005)
There is no genuine dispute here that there was (1) an investment of money,  (2) in a common enterprise, (3) involving an expectation of profits. The only real dispute concerns whether the investor’s expectation of profits is based “solely on the efforts of the promoter or a third party.” MBC, relying on Securities Exchange Commission v. Life Partners, Inc., 87 F.3d 536 (D.C. Cir. 1996), argues that this element is “a necessarily forward-looking inquiry.” See Appellants’ Br. at 13. MBC asks that we make a distinction between a promoter’s activities prior to his having use of an investor’s money and his activities after he has use of the money.
S.E.C. v. Mutual Benefits Corp.
, 408 F.3d 737, 743-44 (11th Cir. 2005)
 (“
Indeed, investment schemes may often involve a combination of both pre- and post-purchase managerial activities, both of which should be taken into consideration in determining whether Howey‘s test is satisfied. Courts have found investment contracts where significant efforts included the pre-purchase exercise of expertise by promoters in selecting or negotiating the price of an asset in which investors would acquire an interest. See Sec. Exch. Comm’n v. Eurobond Exch., Ltd., 13 F.3d 1334 (9th Cir. 1994) (involving interests in foreign treasury bonds); Gary Plastic Packaging Corp. v. Merrill Lynch, Inc., 756 F.2d 230 (2d Cir. 1985) (involving interests in certificate of deposit program); Glen-Arden Commodities, Inc. v. Costantino, 493 F.2d 1027 (2d Cir. 1974) (involving investments in warehouse receipts for whiskey).
”)
This third part of the Howey test, as might be expected, has proved to be the most litigated of the three elements. Under the precedent of this circuit, the crucial inquiry is the amount of control that the investors retain under their written agreements. Williamson v. Tucker, 645 F.2d 404, 423-24 (5th Cir. 1981). If the investor retains the ability to control the profitability of his investment, the agreement is no security. Gordon v. Terry, 684 F.2d 736 (11th Cir. 1982).

 

 

Tonight! Latest Hawaii Decision Underscores Failure to Properly Defend Illegal Foreclosure Claims and What Can Happen if There IS a Proper Defense 6PM EDT 3PM PDT

Thursdays LIVE! Click in to the Neil Garfield Show

Tonight’s Show Hosted by Neil Garfield, Esq.

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

Nothing says it better than the Supreme Court of a state  (Hawaii) that has issued many decisions in favor of homeowners. If you don’t present your defense, by the rules, you lose. Everything about the illegal claims for foreclosure is going to be presumed as true — just as most homeowners presume when they walk away from their homestead. None of it is actually true.

They never say that they loaned you money because from their perspective they didn’t. that would make them a lender subject to enforcement lending laws, rules, and regulations. They never say that the claimant is suffering a financial loss created by the homeowner not making a scheduled payment because that would be untrue.

Tonight we talk about the nuts and bolts of real defense of foreclosure actions that has a good chance of being successful.

see PublishedOpinion

“Securitization” is not the sale of homeowner debt and is not the product of free market transactions

Securitization is a lie. And so far nearly everyone, including homeowners, believes the lie. Small wonder that the courts also believe it — especially when homeowners admit the truth of the lie. 

Each new “financing” results in a brand new string of securities sales — without retirement of the previous string of securities sales. I have continually said, based upon market data, that each securities scheme produces $12 in revenue for each $1 transacted with homeowners. But as many people have pointed out, that is only the first level.

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The reason why Bloomberg searches reveal multiple “trusts” named in connection with a single homeowner transaction is that each new refi or sale changes a few data points but does not change the single and only underlying transaction. That transaction was neither intended nor recorded as a loan on the books of account of investors, investment banks or even the named originator don’t eh mortgage and note. That is why in bankruptcy filings you never see any report of any interest in any loan even if it was “closed” the day before bankruptcy was filed.
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The truth is that Wall Street is selling the myth of loans, not the actual loans, which are in fact thinly disguised incentive payments for homeowners to cooperate in creating the data reference points for the sale of securities to investors who have no financial interest in their transaction. Securitization means that an asset has been “securitized.” That means an asset has been sold in parts to investors. No such sale ever occurs in connection with homeowner transactions.
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Securitization is a lie. And so far nearly everyone, including homeowners, believes the lie. Small wonder that the courts also believe it — especially when homeowners admit the truth of the lie.
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Each time the property is subject to false claims of “refinancing” it starts a new scheme of securities sales that does not retiree the old one. And this is why the “shadow banking market” has gone from $0 to $1.4 quadrillion between 1983 and now. That dollar amount is “nominal value” because no financial transactions took place other than the issuance, sale and trading of derivatives based on falsely labeled “asset-backed” securities. It is not real money, which totals less than $100 trillion. But Wall Street has successfully sold the myth that it is real money when they say it is.
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Wall Street is a selling machine — as it ought to be. It is supposed to be the broker between two counterparties — a buyer and a seller. The current economic infection plaguing the American economy is not the result of Wall Street grabbing a higher commission on transactions. Everyone thinks that but it isn’t true. It is the result of Wall Street inserting itself into the transaction as though it was a real party in interest and doing that with impunity and without any disclosure. This completely blocks free market forces from making corrections.
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The advocates of free-market forces point out that the government can’t regulate every transaction and should not try to do so. They say that in a free market where buyers and sellers are reasonably well informed, stupid offerings or actions are corrected to reflect economic reality. I think they’re right. And I also agree that free-market forces are the magic hand that drives capitalism.
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But Wall Street is hiding behind a carefully constructed myth of free markets. Wall Street does not disclose and carefully conceals the relevant and material information to the investors who buy certificates or the derivatives of certificates, nor the homeowners who think they are getting loans. In plain words, Wall Street is lying about all of the transactions that occur in relation to the trading and sale of securities that use the data rather than the ownership of asset-based transactions.
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Investors have come to believe that they have some sort of indirect interest in transactions with homeowners. that is false and they would defend any claim that asserted such a relationship because that would make them lenders subject to liability for violation of lending laws — something that continues to take place with rampant regulatory.
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In fact, investors are told that this is a way of lending “without risk” — without being a lender. They have sold the myth that by not showing up on the paperwork of any “Closing” with homeowners they are protected from loss, bankruptcy, or liability for noncompliance with laws governing transactions with borrowers and consumers.
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Investors are not told that by adopting that form over substance strategy, they have written a blank check and abandoned all rights to force anyone to comply with the conditions of their purchase of certificates. And while the promise to make payments to them comes from a big investment bank doing business under the name of a nonexistent trust, that promise is subject to the sole discretion of that investment bank who also does not appear as a lender, owner, creditor, holder of paper from any homeowner.
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Investors are told that the certificates are insured but they are not told that the proceeds of the insurance are paid to the brokers, not to them. Investors, like homeowners, are left with a hologram of an empty paper bag. The Wall Street “banks” are left with all the money regardless (and especially) if the value of the investment declines in an “event” declared in the sole discretion of the Wall Street securities brokerage firms that are not allowed to use the powers of both brokerage and commercial banking — something that was completely banned until the repeal of Glass-Steagal.
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Going back to the “free market” how many investors would have completed their transactions under the same terms if they had known all of that?
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The other group of investors are the homeowners who are brainwashed into thinking they are borrowers in a transaction that leaves them without a lender, without a loan account receivable and without anyone with legal authority to administer, collect or enforce a promise to pay that they issued without knowing that the transaction was simply the start of a new securities scheme in which oversized revenue would be generated far exceeding the transaction they thought was a loan.
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How many homeowners would have completed their transactions on the same terms if they knew that there was no liability for noncompliance with lending laws, there was no incentive to create a viable loan transaction, there were incentives for appraisal fraud and there were incentives for the transaction to”fail?”
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This has not been the product of free-market transactions. The entire jumble of convoluted rationales for the falsely labeled “Securitization” scheme has been the exercise of deceit and theft. The fact remains that once the money hits the closing table, there are no financial transactions after that except for the cashout transactions.
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And that is why no foreclosure mill can come forward now, as they were required to do up until around 20+ years ago, and produce a witness from a company that could prove that they owned an existing obligation from the homeowner and that they were taking a loss because the homeowner wasn’t paying. That is why they are appointing companies to pose as servicers when those same companies are not permitted to touch any payments from homeowners or make distributions to investors.
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FORECLOSURE DEFENSE:

  1. The reason why nearly all homeowners walk away rather than contest a fake claim is that they cannot conceive or understand the alchemy of finance. It is absurd to think they could not owe money to satisfy a promise they made to pay it. They think any contest is an immoral breach of promise and as good people they are going to take their lumps.
  2. The reason why most of the 4% of homeowners who file anything to contest fake foreclosure claims are unsuccessful is that they admit the lie tacitly or explicitly. A secondary reason is that the losing homeowner tries to prove facts they cannot and will never prove.
  3. The reason why the last few contesting homeowners are successful in challenging the fake foreclosure is that they don’t admit the lie and they aggressively force the opposing law firm to prove the facts they Wall Street has so carefully constructed as “presumed true.” The winning homeowner undercuts the claim rather than attempting to prove it false.
DID YOU LIKE THIS ARTICLE?

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

Click

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

Everyone assumes that the company claiming to be a servicer is a servicer. But it isn’t.

Servicing is about money. If the money paid by homeowners is not deposited by their own employees into a financial account owned by the company claiming to be a servicer, then they have no right to record the receipt of such money. And they don’t.

 

I received the following inquiry: why does a “loan boarding analyst” need to be a computer coding expert. The answer is that the job description was put there in the name of a company that claimed to be a servicer and was not. The actual function is to make certain that all correspondence, statements, and notices go out under the name of the company claiming to be a servicer without that company ever performing servicing functions.

Because what those employees do has nothing to do with boarding “loans.” In our current example, SPS is a company whose servicing functions are performed by third parties. That would be legal if the third parties were performing those functions under the supervision of SPS. The records produced by those third parties would be qualified “business records” to avoid exclusion under the hearsay rule.

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Servicing is about money. If the money paid by homeowners is not deposited by their own employees into a financial account owned by the company claiming to be a servicer, then they have no right to record the receipt of such money. And they don’t.
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Everyone needs to be careful about accepting the labels and descriptions used by the banks to describe companies and their activities. Most of them are false and intended to mislead you and the rest of the world. So the reality of a job description for a “loan boarding analyst” is that the person needs to be a computer coding specialist with no required knowledge as to banking, bookkeeping or accounting. The object is to reset the basic data after the illusion of a transfer of servicing function has been created. This is shown to the homeowner as a “change of servicer” despite the fact that no such change ever occurred.
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So after the claimed “loan boarding” date has been established, the third party who is actually performing the duties of a servicer (on behalf of investment banks, not investors) will start sending out correspondence, notices, and statements to homeowners who will think that they are corresponding with the company claiming to be a “servicer” and who would not think to question it.

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Everyone assumes that the company claiming to be a servicer is a servicer. But it isn’t. And the records produced in court by a witness declaring that he/she is familiar with the record-keeping practices of the company are not qualified to be exceptions to the hearsay rule.
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And that is because the further testimony that the data shown on those records were made by an employee of the company at or near the time of the transaction is untrue. The company never received any money and therefore made no entries on its accounting records to account for the receipt of money it never received. And this is why there are also no data entries for disbursement of money never received.
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Anyone who has received a bad check understands this premise. If you received a check you only received a piece of paper. But if the check is negotiated into a depository account that you own and control then you also received the money. The money is what this is all about. Don’t let anyone fool you with paper. And by all means, don’t let reports about the paper stand in for reports on the money. It’s not the same thing. If someone sends you a check to an address owned and controlled by someone else, who is receiving and reporting the receipt of payment? It isn’t you. You didn’t receive it unless the third party was working for you and not the other way around.
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The data was recorded, perhaps accurately and perhaps not, by a different company’s employee (or automated robot) because the depository account into which the money was deposited was named for the company claiming to be the servicer but owned by a different company. That means that both the testimony of the robowitness and the exhibits are not admissible into evidence and there is no other proof available to the foreclosure mill to establish legal proof that their claim exists.
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BUT — unless the homeowner or the homeowner’s attorney attacks the presumptions through discovery, motions, and objections, this false testimony and the false exhibits proffered using the false testimony as the foundation for establishing the exhibits as business records, will be admitted. Upon admission, they become the facts and law of the case. The court has no room for discretion.
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Even if the court suspects that the testimony and exhibits are false, the judge must rule for the foreclosure mill. The court is bound by the greater weight of the evidence. Questions and accusations do not count as evidence that will balance out the false evidence of the opposition. It is not false unless you present enough evidence that it is more likely than not that the evidence proffered by your opposition is false.
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This is exactly where pro se litigants and inexperienced trial lawyers get hung up. They know enough to accuse the other side of wrongdoing but they can’t prove it.

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The homeowner never has access to any admissible evidence that contradicts the presumptions created by the application of normal court procedure.

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Without having undermined the ability of the opposition to claim such presumptions, the homeowner always loses. This is only accomplished in discovery demands and then demands (motions) to compel, for sanctions, and in limine. When the judge gets angry that his/her orders are being ignored, you are on the path to victory.

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It is simple logic. If the opposition is relying upon presumed facts, you have the absolute right to test those facts in the real world. When they refuse to supply foundation evidence for the presumed facts, you have them right where you want them. The presumption fails and they have no further evidence to proffer. No evidence means no case. But without aggressively pursuing these rights, the false narrative will prevail.

DID YOU LIKE THIS ARTICLE?

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

Click

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

FREE REVIEW: Don’t wait, Act NOW!

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

Support Bruce Jacobs, Esq. and Floridabulldog.org: They are telling truth to power

Congrats to Florida Bulldog on running a story that the media  giants are not only failing to continue their investigative reporting, but refusing to print stories produced from other credible sources on the huge subject of fraudulent foreclosures.

Not since 2008 have we seen lawyers with the guts and judges with the integrity to challenge the banks and their lawyers on grounds of perjury. Here, Judge Butchko is employing the key motto of blind justice. If Bank of America was lying when they said they were the servicer and it turns out that the foreclosure was a scam, they they should be held accountable. The court hearing on contempt is scheduled and the panicked lawyers are filing with the 3rd DCA to get the Judge off the bench. They are terrified of being found in contempt of court and worse. The 3rd DCA is known for being relentlessly in favor of the banks no matter what they have done.

If Judges start peeking under the hood, they will continue the movement that started back in 2008 when judges were retired or removed from benches for refusing to allow foreclosures based upon obvious flaws in documentation leading to the inevitable inclusion that the foreclosures were being done for profit and not for payback on an existing debt. See Judge Shack (New York) opinions and Judge Boyco (Ohio). Similar decisions filtered through California bankruptcy courts and even Arizona Courts.

Even the California Supreme Court (Yvanova decision) was scratchign tis head in wonderment over the claim that the allegation of the debt is sufficient to enforce it. No, they said, the obligation, if it exists is owed to somebody, not just anybody.

As previously reported Bruce Jacobs is an attorney who is not afraid of getting in the face of those who lie. And like I have said before, he is under heavy fire for supposedly impugning the impartiality of the courts, having sought to recuse judges from foreclosure cases. With only sparse support, lawyers like Jacobs are the sole source of restoring restore faith in the judicial system in both foreclosure cases and the system for resolving civil disputes in general.

It is not an exagggeration to say that everyone who has been involved in foreclosure litigation has considerable doubt about the forms, rules and procedures — and the way the judges are applying laws accepting documents and testimony into evidence as presumptively true despite the clearest indications in the public domain that the sources of information have already been found to be guilty of a pattenr of fabrication and lying, using various machine-based methods, in addition to pure lying by real people who know nothing more than the script they were given.

Like all successful foreclosure defense attorneys Jacobs has come under heavy fire — as though advocating for a client is a bad thing.

Folks this is where the rubber meets the road. Start writing to newspapers, editors, your state legislators, the courts, and anyone else you can think of to express your support for Attorney Jacobs and his client in this case. He is willing to risk everything to advance the cause of justice for foreclosure victims. 

Lawyers across the country shoudl give credit to Jacobs for standing up against lies and injustice.

Remember that the banks can do nothing without attorneys who provide them cover under “litigation immunity.” Once we succeed in making the risk not worth the consequences for pretenders like lawyers, and companies pretending to be servicers, trustees or creditors, the foreclosures will stop.

see https://www.floridabulldog.org/2021/06/miami-judge-warns-big-banks-stop-playing-cruel-foreclosure-games/

Miami-Dade Circuit Court Judge Beatrice Butchko is warning national banking giants and their counsel they’ll pay a hefty price if they commit fraud or violate due process or ethics rules to drive mortgage debtors out of their homes.

On June 2 Butchko took the extraordinary step of accusing Bank of America and Bank of New York Mellon of criminal contempt for allegedly offering perjured testimony in a foreclosure. She scheduled both for arraignment at a Zoom hearing on June 25.

The banks and their lawyer allegedly lied about whether Bank of America is still involved in servicing a mortgage loan. If it is, defendant Julie Nicolas can introduce Bank of America documents that may prove the foreclosure was fraudulent.

A contempt finding could result in “jail, adjudication, probation, a finding of unclean hands, monetary fines, injunctions, attorney’s fees, and/or other sanctions,”

NOTE: THIS IS NOT THE FIRST TIME JACOBS PREVAILED: see HSBC Bank USA v. Buset, 216 So. 3d 701 (Fla. Dist. Ct. App. 2017).

Jacobs HSBC Ocwen-Order. 

Same Judge Butchko involved in that one. No wonder the foreclosure mill wants her drawn and quartered. This Judge is now under the same heavy artillery fire as prior judges and attorneys who dared to challenge illegal foreclosures.

If you think about it, any attempt to enforce a debt that no longer exists on the books of any company and where nobody is claiming a financial loss they can prove is not really a foreclosure at all. It is attempted theft. The foreclosure have had their success by depending upon the myth that a big bank like Bank of America would not lie about being the servicer for a transaction. And of course the answer is that yes they would lie and they do lie because they receive payment to lie.

Next question, why would BOA accept an arrangement where it allows its name to be used as a servicer? The answer is because someone else is doing the same thing for them.

And the final question, what happens to all the documents preferred as evidence once it is found that the company presented as a servicer is not the servicer? The answer is that there is no foundation for those documents and they may be struck from the court file and not used as evidence or proof of the debt or the claim to enforce the debt.

But here is the kicker: even if it is established that the company was not servicer and therefore that its documents were not a proper business records exception to the hearsay rule, it is possible for the documents to remain in the court record and be used as evidence that is is more likely than not that the debt exists and the plaintiff has a right to enforce it. Some judges will sua sponte ignore such evidence, but without an objection that is sustained and a motion to strike the evidence being granted, the testimony and exhibits remain in the court record and the appellate court can affirm the judgment in favor of the alleged claimant in the foreclosure case.

Banks and Foreclosure Mills Exploit Confusion About Assignments of Mortgage and Endorsements of Notes

so far, the banks have been exceedingly successful, causing the foreclosure of millions of homes by people who don’t own and never wanted to own the obligation. The out-of-pocket expense of paying the homeowner to execute documents was long ago reimbursed in full by the sale of securities as the other leg of the single transaction doctrine.

There is no loss. Yet there is foreclosure. 

The assignment of a mortgage MUST be accompanied by the transfer of ownership of the underlying obligation —- or else it is a legal nullity. This is true in all U.S. jurisdictions.

Some jurisdictions try to work around this requirement by presuming the transfer occurred because they treat the promissory note as a title document for the underlying obligation and the endorsement of the note as a transfer of title to the underlying debt. This is a legal error.

The endorsement of a note is not a legal nullity even though the obligation was neither purchased nor sold at the time of endorsement.

But the endorsement of the note carries the presumption, not a conclusive finding, that the authority to enforce it was intended. But the intention is not the same as an event in the real world. Either it happened or it didn’t. So the banks try to narrow the focus on the transfer of the note.

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If they were to focus on the transfer of the mortgage, it would easier to attack since there was no purchase and sale of the underlying obligation.
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This is why we have seen so many cases back in the early foreclosure crisis we had multiple fabricated forged assignments of mortgage that were abandoned at trial by the foreclosure mill.
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But by keeping the focus on the note, where the transfer does not require a transfer of the obligation, they escape the easy attack.
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By claiming a presumption that the transfer of the underlying obligation has been purchased and sold for value, they appear to at least initially escape the requirements of Article 9 §203 of the Uniform Commerical Code and judicial doctrine that declares a transfer of a mortgage without the underlying obligation is a legal nullity.
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The code and doctrine emanating from the same principle: nobody wants a foreclosure to occur that might result in the claimant receiving a windfall instead of restitution for an unpaid debt.
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And so far, that strategy has been exceedingly successful, causing the foreclosure of millions of homes by people who don’t own and never wanted to own the obligation. The out-of-pocket expense of paying the homeowner to execute documents was long ago reimbursed in full by the sale of securities as the other leg of the single transaction doctrine.
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There is no loss to be claimed because there is no account to be claimed — except for the fabricated payment history that is falsely presented as the business record of a company claiming to be a servicer, but who performs no servicing functions.
DID YOU LIKE THIS ARTICLE?

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

Click

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

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

With Autopen technologies, something is missing — a person.

People and lawyers often say that the judge would not listen. That isn’t true. The judge is listening. He or she is just not hearing well founded objections raised in a timely manner. If you don’t put the nickle into the gumball machine, you get nothing. It doesn’t matter that you had a nickle in your pocket.

I see no reason why automated technologies should not be used. They do make things easier, faster, better and less prone to error. But with machines that create a signature, there is a legal problem of great significance. It creates a loophole through which the largest banking institutions in the world are driving 18 wheel trucks filled with cash.

For purposes of information, if you don’t have the original document or a copy of the original document, then you must account for why you don’t have the document and why you should be considered a party to it. That is basic black letter law. See procedures for lost notes etc.

But what we have been seeing is a fabrication passed off as an original — with no explanation or accounting.

Hundreds of thousands of foreclosure cases were originally filed as “lost note” cases because the original notes were destroyed contemporaneously with the “closing” of the transaction with the homeowner. As admitted by the Florida Bankers Association, it was custom and practice to destroy the promissory note even though it was a cash-equivalent document. Crazy at first blush but nonetheless true.

This was actually uncovered very early in the foreclosure mess that started around the year 2000. By 2007 it was very apparent that if you asked for the “loan file” before the foreclosure process began, nobody had it — and in particular, nobody had the original note. But after the foreclosure process begins the note pops up like magic. The reason became clear when the documents claiming to be original notes were signed with a different color ink than the homeowner used.

And we all know that all State attorney generals filed lawsuits against the securitization players for fabricating false documentation for exactly that reason. Apparently for political reasons the problem was never corrected and still remains. The players promised to mend their ways but did no such thing.

So what we are left with is a document that is not signed, as the word “Signature” is intended to convey. It is marked by machine and presented as the original that was signed by the homeowner. That means that the original is either destroyed (most likely) or lost (also likely). And that means that someone else might have the original or that someone else might be entitled to the enforcement of the note. Or it could mean that nobody is entitled to enforce the note because the obligation has been extinguished. It could mean almost anything.

see https://www.youtube.com/watch?v=N5VB8DuZMv8

https://www.youtube.com/watch?v=ZuIyTwFO5tY

And that is why the mechanical reproduction of signed documents is a hearsay declaration presented by the proponent of the evidence unless there is someone who can testify under oath (and subject to penalties of perjury) that they have personal knowledge of the transaction and the way that the original note was lost and why the proponent is entitled to enforce it.

The only reason why machines are used to fabricate documents as “originals” is to avoid the requirement of producing a real live witness with personal knowledge. Before the era of securitization, they had no problem with producing such witnesses. But now they not only avoid it; they also refuse to do it.

Remember that while it is presumed that possession of the original note means that the possessor is a holder with rights to enforce, the possession of mechanical reproduction does not carry such presumptions. The reason is obvious: it isn’t the original. This brings the claimant or plaintiff in a foreclosure case back to the very thing they wish to avoid: proving the existence and ownership of the underlying obligation.

People forget that the right to enforce must ultimately come from the person who has paid value for ownership of the underlying obligation. This is precisely the issue that has been dodged so successfully in foreclosure litigation resulting in foreclosure sales that inure to the benefit of companies that receive money in exchange for services instead of for the purpose of crediting a loan account.

The courts have all assumed and twisted judicial doctrine out of joint to prove their assumption that eventually the sale results in payment to someone who has paid value for the underlying obligation, owns the underlying obligation, and would otherwise suffer a financial loss if they did not get the monetary proceeds from the sale. That simply is not true.

It is the job of the defender to show (1) the basic black letter elements of a foreclosure case are not actually present or (2) that the opposition cannot prove that those elements are present; either one produces a win for homeowners. Homeowners make strategic errors when they attempt to prove that the elements do not exist. They should be concentrating on revealing that their opposition can not prove the elements —even if they did exist. 

DID YOU LIKE THIS ARTICLE?

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

Click

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

FREE REVIEW: Don’t wait, Act NOW!

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

 

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