Danielle Kelley | Livinglies's Weblog

The Rush to Foreclosure: Wells Fargo Loses the Argument on Trial Modifications

Posted on January 29, 2014 by Neil Garfield

As Danielle Kelley, Esq. (Tallahassee) has repeatedly predicted, the trial modification practices of the big banks are getting them into hot water. Scenarios vary. But one typical scenario is that the trial modification is “approved” (which under current law means that it has been through underwriting) and the borrower makes the trail payments. Then the bank says the “investor” (with whom they have most likely NOT been in contact) has denied the modification. After receiving the trial payments and assuring the borrowers that they were safe in their home, the bank then forecloses. Many homeowners, unaware that they in fact probably have a binding contract with the bank on the modification, walk away.

Kelley has won cases based upon the argument that the bank had no choice but to modify the loan according to the terms of the trial modifications — and to make any other adjustments necessary to make the numbers come out right. The important point being that the payments offered in the trial modification are the same payment they will have for the rest of the term of the loan. The Bank argued that they were under no obligation to make the trial modification permanent. The Judge was furious with the bank and its attorneys, reminding them that forfeiture of one’s home is an extreme remedy, not to be taken lightly.

Of course the game of the Banks has been, all along, that they want as many of the mortgage loans in foreclosure, because that is the only way out of potential liability for refunds and buybacks of loans that have now been “assigned” to REMIC trusts, most of which were never funded and thus lacked the capacity to originate or acquire any loans. The servicers are rushing to foreclosure sale because that is an opportunity for them to claim the proceeds of liquidation of the property to get back “servicer advances” paid while they claimed the homeowner was in default (but the creditors (investors) were being paid on time in the right amount — i.e., NO DEFAULT).

The investors are suing the broker dealers (investment banks) for fraud, mismanagement of funds, documents and title. The investors affirmatively allege that the loan documents are unenforceable but when it gets down to state court level in the foreclosure cases, those assertions by the creditors are not considered relevant by a standard that does not seem to have any support under the law but which is nonetheless applied.

In all probability no investor knows of any foreclosures nor do they get notice of how the Servicers and Trustees are forcing the cases into foreclosures where the investors do the worst, the borrowers do the worst, and the banks, trustees and servicers get to take all the spoils of the largest economic fraud in human history. I know that sounds like hyperbole. But I will bet anything that the time will come when the real truth comes out in its entirety — and the shock and awe of the whole thing becomes apparent to everyone.

While most of the cases involving trial modifications result in confidential settlements that cannot be discussed here or I would be violating the confidentiality agreement, one case recently stands out as having been at least partially litigated now.

Borrowers Can Sue Wells Fargo Over Mortgage Modifications — Reuters

The 9th Circuit, which has been considered unfriendly to borrowers, changed course in this decision.

The 9th U.S. Circuit Court of Appeals said Wells Fargo was required under the federal Home Affordable Modification Program [HAMP] to offer loan modifications to borrowers who demonstrated their eligibility during a trial period. … the appeals court rejected the argument that Wells Fargo became bound only upon sending borrowers signed modification agreements.

The court said this would create “unfettered discretion” for the San Francisco-based bank to reject modifications “for any reason whatsoever – interest rates went up, the economy soured, (or) it just didn’t like the borrower.”

While a federal appeals court in Chicago reached a similar conclusion last year, the 9th Circuit decision applies in several western U.S. states – among them California, Arizona and Nevada – that have been particularly hard-hit by foreclosures.

Corvello v. Wells Fargo Bank NA et al, 9th U.S. Circuit Court of Appeals, No. 11-16234.

This decision, like others coming out of Federal and State courts shows a growing anger and mistrust of the banks and their attorneys that most borrowers would say is long overdue.

For people familiar with determining the present value of a flow of funds, the analysis of the modification deals is easier. The average length of time a home is held by its owner is around 7 years, but many people stay in the home for life. Just to make things easier, here is a way of looking at certain modifications that don’t seem to offer anything of value on their face.

Assuming the original mortgage was $500,000 and now with default interest, attorneys fees etc. the total demanded is $600,000 the bank might offer a low interest rate (2%-5%) with amortization for forty years at a payment you can afford. But you don’t like the deal because you were the victim of appraisal fraud so you would be accepting a mortgage and waiving your defenses and ratifying the ownership of the loan in exchange for what?

The payment over 40 years changes the equation dramatically and does address the appraisal fraud if you stay in the house for a long time. In 40 years, with even low inflation, each dollar you are spending now is going to be worth around 20 cents. And even without any organic growth in prices from demand, your house might be worth $300,000 now, will be priced in 40 years at around $1,200,000. This assumes 2% rate of inflation. The risk factors are deflation and stagnation, which at this point most economists are not predicting.

For more information on trial modifications, litigation support, or other related information contact Danielle Kelley at 850-765-1236.

Filed under: CDO, CORRUPTION, expert witness, foreclosure, foreclosure defenses, foreclosure mill, GARFIELD KELLEY AND WHITE, GTC | Honor, investment banking, Investor, MBS TRUSTEE, MODIFICATION, Mortgage, Motions, Pleading, securities fraud, Servicer, STATUTES, TRUST BENEFICIARIES, trustee | Tagged: 9TH CIRCUIT COURT OF APPEALS, Corvello V Wells Fargo Bank, Danielle Kelley, permanent modification, present value, trial modification, Wells Fargo | 20 Comments »

VICTORY for Homeowners: Received Title and 7 Figure Monetary Damages for Wrongful Foreclosure

Posted on September 13, 2013 by Neil Garfield

As a California appellate court decision several years ago noted, “For homeowners struggling to avoid foreclosure, this dual tracking might go by another name: the double-cross.” – See more at: http://calcoastnews.com/2013/09/onewest-bank-pays-7-figures-mortgage-fraud-case/#sthash.xcKP1Tpl.dpuf

“As a California appellate court decision several years ago noted, ‘For Homeowners struggling to avoid foreclosure, this dual tracking might go by another name: the double-cross.'” Daniel Blackburn, http://www.calcoastnews.com, 9/11/13.

Internet Store Notice: As requested by customer service, this is to explain the use of the COMBO, Consultation and Expert Declaration. The only reason they are separate is that too many people only wanted or could only afford one or the other — all three should be purchased. The Combo is a road map for the attorney to set up his file and start drafting the appropriate pleadings. It reveals defects in the title chain and inferentially in the money chain and provides the facts relative to making specific allegations concerning securitization issues. The consultation looks at your specific case and gives the benefit of litigation support consultation and advice that I can give to lawyers but I cannot give to pro se litigants. The expert declaration is my explanation to the Court of the findings of the forensic analysis. It is rare that I am actually called as a witness apparently because the cases are settled before a hearing at which evidence is taken.

If you are seeking legal representation or other services call our South Florida customer service number at 954-495-9867 and for the West coast the number remains 520-405-1688. In Northern Florida and the Panhandle call 850-765-1236. Customer service for the livinglies store with workbooks, services and analysis remains the same at 520-405-1688. The people who answer the phone are NOT attorneys and NOT permitted to provide any legal advice, but they can guide you toward some of our products and services. Get advice from attorneys licensed in the jurisdiction in which your property is located. We do provide litigation support — but only for licensed attorneys.

Neil Garfield, the author of this article, and Danielle Kelley, Esq. are partners in the law firm of Garfield, Gwaltney, Kelley and White (GGKW) based in Tallahassee with offices opening in Broward County and Dade County.

See LivingLies Store: Reports and Analysis

Neil F Garfield, Esq. http://www.Livinglies.me, 9/13/13

Victory in California, as we have predicted for years. Maria L. Hutkin and Jude J Basile were the attorneys for the homeowners and obviously did a fine job of exposing the truth. Their tenacity and perseverance paid off big time for their clients and themselves. They showed it is not over until the truth comes out. So for all of you who are saying you can’t find a lawyer who “gets it” here are two lawyers that got it and won. And for all those who were screwed by the banks, it isn’t over. Now it is your turn to get the rights and damages you deserve.

Maria L. Hutkin and Jude J. Basile

The homeowners won flat out at a trial — something that should have happened in most of the 6.6 million Foreclosures conducted thus far. U.S. Bank showed its ugly head again as the alleged Trustee of a trust that was most probably nonexistent, unfunded and without any assets at all much less the homeowners alleged loan. Still the settlement shows how far Wall Street will go to pay damages rather than admit their liability to investors, insurers, counterparties in credit default swaps, and the Federal Reserve.

When you think of the hundreds of millions of wrongful foreclosures that were the subject of tens of billions of dollars in “settlements” that preserved homeowners rights to pursue further damages and do the math, it is obvious why even the total of all the “settlements” and fines were a tiny fraction of the total liability owed to pension funds and other investors, insurers, CDS parties, the Federal Government and of course the borrowers who never received a single loan from the banks in the first place. If 5 million foreclosures were wrongful, as is widely suspected at a minimum, using this case and some others I know about the damages could well exceed $5 Trillion. Simple math. Maybe that will wake up the good trial lawyers who think there is no case!

Maria L. Hutkin and Jude J. Basile

A fitting announcement on the 5th anniversary of the Lehman Brothers collapse. the economy is still struggling as more than 15 million American PEOPLE were displaced, lost equity and forced into bankruptcy by imperfect mortgages that were a sham, and thus imperfect foreclosures that were also a sham. Another 15 million PEOPLE will be displaced if these wrongful, illegal and morally corrupt sham foreclosures are allowed to continue.

This case, like the recent case won by Danielle Kelley (partner of GGKW) was based upon dual tracking. In Kelley’s case the homeowners had completed the process of getting an approved modification, which meant that underwriting, review, confirmation of data, and approval from the investor had been obtained. In Kelley’s case the homeowner had made the trial payments in full and paid the taxes, insurance, utilities and maintenance of the property.

The Bank argued they were under no obligation to fulfill the final step — permanent modification. Kelley argued that a new contract was formed — offer, acceptance and the consideration of payment that the Bank received, kept and credited to the homeowner’s account. But the bank as Servicer was still accruing the payments due on the unmodified mortgage, which is why I have been harping on the topic of discovery on the money trail at origination, processing, and third party payments.

The accounting records of the subservicer and the Master Servicer should lead you to all actual transactions in which money exchanged hands, although getting to insurance payments and proceeds of credit default swaps might require discovery from the investment banker. So in Kelley’s case, the Judge essentially said that if an agreement was reached and the homeowner met the requirements of a trial period, the deal was done and entered a final order in favor of the homeowner eliminating the the foreclosure with prejudice.

In this One West case the court went a little further. The homeowners were lured into negotiations, expenses and augments under the promise of modification and then summarily without notice to the homeowner sold the property at a Trustee sale under the provisions of the deed of trust. The Judge agreed with counsel for the homeowners that this was dual tracking at its worst, and that the bank did not have the option of proceeding with the sale.

The homeowners were forced to vacate the property and make other housing arrangements and these particular homeowners were enraged and had the resources to do what most homeowners are too fearful to do — go to the mat (go to trial.)

One West made several offers of settlement once the Judge made it clear that the homeowners had stated a cause of action for wrongful foreclosure. Bravely the attorneys and the homeowners rejected settlement and insisted on a complete airing of their grievances so that everyone would know what happened to them. After multiple offers, with trial drawing near, OneWest finally agreed to give clear title back to the homeowners and pay $1 million+ in damages on what was a six figure loan.

We now have cases in both judicial and non-judicial jurisdictions in which the homeowner was awarded the house without encumbrance of a mortgage and even receiving monetary damages in which the attorneys achieved substantial rewards on 7 figure settlements that probably would be much higher if they ever went to trial — particularly in front of a jury. This is only one of the paths to successful foreclosure defense. I hope attorneys and homeowners take note. Your anger can be channeled into a constructive path if the lawyers know how to understand these loans, and how to litigate them.

“There’s hope. I feel their pain.” — Danielle Kelley, Esq. , partner in Garfield, Gwaltney, Kelley and White.

http://calcoastnews.com/2013/09/onewest-bank-pays-7-figures-mortgage-fraud-case/

Filed under: AMGAR, CDO, CORRUPTION, Eviction, foreclosure, GARFIELD GWALTNEY KELLEY AND WHITE, Investor, Mortgage, securities fraud, Servicer | Tagged: CALIFORNIA, Danielle Kelley, GGKW, Greg and Irene Rigali, Jude J. Basile, Judge Charles S. Crandall, Lehman Brothers, Maria L. Hutkin, OneWest, Rik Tozzi, Steve Mnuchin, U.S. Bank, wrongful foreclosure | 31 Comments »

Danielle Kelley, Esq. Swings Back at Separation of Note and Mortgage

Posted on September 5, 2013 by Neil Garfield

If the banks lose the application of the UCC, which they should, they are dead in the water because they have no way to prove the transactions upon which they rely in collection and foreclosure.

Internet Store Notice: As requested by customer service, this is to explain the use of the COMBO, Consultation and Expert Declaration. The only reason they are separate is that too many people only wanted or could only afford one or the other — all three should be purchased. The Combo is a road map for the attorney to set up his file and start drafting the appropriate pleadings. It reveals defects in the title chain and inferentially in the money chain and provides the facts relative to making specific allegations concerning securitization issues. The consultation looks at your specific case and gives the benefit of litigation support consultation and advice that I can give to lawyers but I cannot give to pro se litigants. The expert declaration is my explanation to the Court of the findings of the forensic analysis. It is rare that I am actually called as a witness apparently because the cases are settled before a hearing at which evidence is taken.

If you are seeking legal representation or other services call our South Florida customer service number at 954-495-9867 and for the West coast the number remains 520-405-1688. In Northern Florida and the Panhandle call 850-765-1236. Customer service for the livinglies store with workbooks, services and analysis remains the same at 520-405-1688. The people who answer the phone are NOT attorneys and NOT permitted to provide any legal advice, but they can guide you toward some of our products and services. Get advice from attorneys licensed in the jurisdiction in which your property is located. We do provide litigation support — but only for licensed attorneys.

See LivingLies Store: Reports and Analysis

Danielle Kelley, Esq. whom I admired before she became my law partner has again broke some old/new ground in compelling fashion. This is not legal advice and nobody should use it without consulting an attorney who is properly licensed in good standing in the jurisdiction in which the property is located and who is competent on the subject of bills and notes.

The bottom line: if the note and mortgage were intended by the law to be considered one instrument, they would be one instrument. But they are not because all the conditions in the mortgage would render the note non-negotiable under the UCC and that would be true even if the loan was actually sold, for real, with payment and an assignment. The conditions expressed in the mortgage or deed of trust render the mortgage non-negotiable. Hence an alleged transfer of the note separates the note from the mortgage because the mortgage is by definition non-negotiable. If the banks lose the application of the UCC, which they should, they are dead in the water because they have no way to prove the transactions upon which they rely in collection and foreclosure.

All of this leads us back to the “sale” of the loan because the presumption arising out of being a holder or holder in due course does not exist where the paper is non-negotiable. The Banks must allege and prove the origination and sale the old fashioned way — by alleging that on the ___ day of ___, in the year ___ XYZ loaned the homeowner $____________. Pursuant to that transaction the defendant executed a note and mortgage (or deed of trust), attached hereto and incorporated by reference. On the ___ day of ________ in the year ________, Plaintiff acquired said loan by payment of valuable consideration and received an assignment that was recorded in the public records at page ___, Book ____ of the public records of ____ County. Defendant failed or refused to make payment commencing the ___ day of ____ in the year ____. Plaintiff gave notice of the delinquency and default, provided the Defendant with an opportunity to reinstate as required by the mortgage and applicable law (copy of said notices attached). Defendant will suffer financial loss without collection of the debt for which it owns the account receivable. Pursuant to the terms of the mortgage which is attached hereto, Defendant agreed that the subject property was pledged as collateral for the faithful performance of the duties under the note, to wit: payment.

Of course the Banks refuse to do that because it opens the door to discovery to exactly what money was paid, to whom and why. AND it would show that there were no actual transactions — just shuffling of paper.

Affirmative defense

Non-negotiability of Subject Note Prohibits Plaintiff from Enforcing it Pursuant to Fla. Stat. §673, et seq and Failure to Attach Documents Pursuant to Florida Rule of Civil Procedure 1.130

With regard to all counts of the Complaint, the Plaintiff’s claims are barred in whole or in part because the subject note that the Plaintiff may produce is not a negotiable instrument and therefore the Plaintiff cannot claim enforcement of the note pursuant to Fla. Stat. §673, et seq. In order for an instrument to be negotiable it must not, amongst other things, “state any other undertaking or instruction by the person promising or ordering payment to do any act in addition to the payment of money.” §673.1041(1)(c). While there is no appellate case law in Florida (and precious little in the entire country) which has ever interpreted this portion of the statute to mortgage promissory notes, the Second District has interpreted this section with respect to retail installment sales contracts in GMAC v. Honest Air Conditioning & Heating, Inc., et al., 933 So. 2d 34 (Fla. 2d DCA 2006). There, the Second District held that clauses in the RISC such as the requirement for late fees and NSF charges rendered the contract non-negotiable. This Court should be mindful that the GMAC case was recently applied to a mortgage foreclosure in the Sixth Judicial Circuit. See Wells Fargo Bank, N.A. v. Christopher J. Chesney, Case No. 51-2009-CA-6509-WS/G (6th Judicial Circuit/Hon. Stanley R. Mills February 22, 2010).

The note attached to Plaintiff’s Complaint contains the following obligations other than the payment of money

1. The obligation that the borrower pay a late charge if the lender has not received payment by the end of a certain period of days after the payment is due. Defendants assert this defense although Section 7(a) of the Note attached states “See Attached Rider”. The only riders attached to the Complaint are a “Prepayment Rider to Note” and an “Adjustable Rate Rider”, the latter of which deals with the interest change, not late fees. Therefore there are documents potentially missing from the Complaint which runs afoul of Florida Rule of Civil Procedure 1.130 that such documents be attached as they are a document upon which a defense can be made. Defendants are asserting the defense without the applicable rider; however, if Plaintiff is in possession of the original note, as they should be in order to foreclose, Plaintiff would have had said document to file.

2. The obligation that the borrower to tell the lender, in writing, if borrower opts to may prepay in clause 5 of the Note and the Prepayment Rider to the Note.

3. The obligation that the lender send any notices that must be given to the borrower pursuant to the terms of the subject note by either delivering it or mailing it by first class mail in clause 8; and

4. The obligation of the borrower to waive the right of presentment and notice of dishonor in clause 9.

Because the subject note contains undertakings or instructions other than the payment of money, the subject note is not negotiable and therefore the Plaintiff cannot claim that it is entitled to enforce same pursuant to Fla. Stat. §673, et seq.

In addition to, or in alternative of, the following argument, even if the subject note is deemed negotiable, Fla. Stat. §673, et seq. (and therefore negotiation) cannot be utilized to transfer the non-negotiable mortgage, which is a separate transaction. See in Sims v. New Falls Corporation, 37 So. 3d 358, 360 (Fla. 3d DCA 2010) (providing that a note and mortgage were two separate transactions). The terms of the mortgage are expressly not incorporated into the terms of the note; rather, they are merely referenced by the note. See clause 11 of the note. Indeed, nowhere in the subject note is the right to foreclose the mortgage a remedy for default under the note. It is clause 22 of the mortgage, on the other hand, which allows this. Clause 22 of the mortgage, however, cannot be transferred to Plaintiff by negotiation as the mortgage is not negotiable.

Filed under: CDO, CORRUPTION, Eviction, evidence, foreclosure, GARFIELD GWALTNEY KELLEY AND WHITE, GTC | Honor, Investor, Mortgage, securities fraud, Servicer | Tagged: clause 22, Danielle Kelley, et al., et seq., Fl Statutes §673.1041(1)(c), Fla. Stat. §673, GMAC v. Honest Air Conditioning & Heating, Inc., N.A. v. Christopher J. Chesney, Non-negotiability of Mortgage and Note, paragraph 22, Sims v. New Falls Corporation, UCC, Wells Fargo Bank | 54 Comments »

Danielle Kelley Forces Bank Into Permanent Modification

Posted on July 3, 2013 by Neil Garfield

Danielle Kelley, Esq., is a senior litigation partner in GGKW (the law offices of Garfield, Gwaltney, Kelley and White with home offices in Tallahassee and branches in South Florida and Central Florida), now liberated from the administrative duties associated with running a law practice. Focusing her attention on litigating her cases, the results are getting better and better. Her latest blog turns her attention to enforcement of modification duties by the very same banks who report they are doing their best when in fact they are intentionally done their worst. She be reached at 850-765-1236, 954-495-9867, or dkelley@ggkwlaw.com. Neil F Garfield can be reached at the same numbers and ngarfield@ggkwlaw.com.

The latest is that Danielle Kelley took on the banks in the murky area of modifications — in Court. Her argument: once the trial modification has been satisfied, there is no discretion for the bank to deny the permanent modification. Her client made the payments and supplied the documentation (the usual 30 times because the bank kept lying to her client saying they didn’t have the complete file, asking for things that Kelley proved had even already received several times).

As with the whistle blower affidavits in the current breaking news, Kelley showed that the bank lied saying they had not received paperwork when they had. Opposing counsel was forced to concede that his client had behaved that way — thus setting up the unclean hands argument (which in this case turned out to be unnecessary).

Despite her client satisfying all parts of the trial modification which opposing counsel had to admit, the permanent modification was denied. Kelley said basically “no, it isn’t denied. It is automatic.” The bank scoffed at her and paid the price. Kelley ditched them in the preliminaries. She was just warming up and she had already won.

Opposing counsel citing the HAMP statute said that the bank was under no obligation to permanently modify the loan — even if the borrower has accepted the offer of the bank for the trial modification and then paid in accordance with the terms of the trial modification and even if the bank accepted those payments. Opposing counsel said “just because they complied with the trial modification doesn’t mean they automatically get a permanent modification.” The Judge thought otherwise and was pretty angry about it authorizing sanctions against the bank. “Yes it does mean that counsel — what else could it mean?”

The Judge took it under advisement, did the research, and issued the order. The modification is permanent by Court Order. The case is over with jurisdiction reserved to impose sanctions on the banks and award attorney fees to Kelley and her client. Whether the bank is going to appeal is unknown. But the lesson from this simple motion to enforce the settlement/modification are clear starting with THERE WAS REAL MONEY PAID AND REAL MONEY ACCEPTED AND THE MOVEMENT OF THE MONEY PRECISELY FOLLOWED THE PAPERWORK (the agreement to go into a trial modification).

See more on modification: http://dkelleylaw.wordpress.com/2013/06/26/the-in-house-modification-what-the-boa-declarations-point-to/

You might not see the connection but the ninth circuit opinion essentially came to the same conclusion and then turned the borrower down on his argument that the loan documents should not or could not be enforced. The decision starts out with the statement that the borrower was loaned money as stated in the note. Everything was down hill from there. Once the Court is presented with a real transaction (more apparent than real in the Arizona case, but this issue was never raised), where real money was paid pursuant to the terms of a real contract, the case is essentially over.

The Banks successfully suckered the lawyer into looking at the paperwork instead of looking at the money trail and comparing it with the paperwork. No allegation was made and no Discovery was put in the record showing that there was no real transaction as stated in the note and mortgage.

The two cases are very different in fact pattern but the result is the same: THERE WAS REAL MONEY PAID AND REAL MONEY ACCEPTED AND THE MOVEMENT OF THE MONEY PRECISELY FOLLOWED THE PAPERWORK. The problem in the Arizona case is that there never was any real issue with whether the money had tracked the paper trail even though it appears as though in reality it probably didn’t. Without the issue in the record, as the Court pointed out, they had no obligation to raise issues that were never raised at the trial level.

LISTEN TO DANIELLE KELLEY ON BLOG RADIO

See: 9th circuit slams homeowners. June 28. 2013 http://cdn.ca9.uscourts.gov/datastore/opinions/2013/06/28/11-16597.pdf

this is not a bad decision. it is just another example of how lost we can get if we just follow the paper trail. the court was perfectly correct in its reasoning and and its conclusion. I predicted the outcome and told the lawyer involved here that he was pursuing the wrong path.

The opening words of the decision basically tells all we need to know. it says that the homeowner borrowed the money from the party set forth on the note. There is no question raised as to whether or not the party set forth on that note as the payee was in fact the lender. After that, it was all downhill.

The only way these cases can be won is by showing the money trail first. That is what reveals the actual parties to the transaction. Then by showing that the money trail does not track or follow the paper trail you can argue standing, and the fact that the mortgage lien was never perfected. That is the only thing that can stop a foreclosure.

It only makes sense that the courts as a whole are not going to let people off the hook unless the adversary has no right to receive the benefits. If you start with the premise that the loan was made just like it says in the note, you might as well pack your bags and go home. The courts are not going to refuse to enforce an obligation they think is real and which is not challenged by the debtor. The business of some coffee spilled on the document thus rendering the document unenforceable is not going to work and it isn’t working. Nor should it.

THERE IS NO MAGIC BULLET THAT IS GOING TO STOP ENFORCEMENT OF WHAT IS OBVIOUSLY AND ADMITTEDLY A LEGITIMATE DEBT. IT IS THE DEBT ITSELF AND THE COMPARISON TO THE PAPERWORK THAT LAWYERS SHOULD CONCENTRATE THEIR ATTENTION. Then you will see a tsunami of decisions in favor of the borrower because the transaction described in the note, the mortgage, the assignments and the pleadings do not exist. Pierce through the smoke and mirrors of Wall Street and you will find nothing to support their position.

The lawyers who insist on maintaining their focus of attention on the paperwork are simply guilty of mental masturbation. They get paid and the client suffer the consequences. With this latest decision, there should be little doubt that looking for a “gimmick” way out of this is not going to work. Foreclosure defense lawyers need to show that the party seeking the benefit of of foreclosure is not entitled to it.

Filed under: AMGAR, CORRUPTION, foreclosure, foreclosure mill, GARFIELD GWALTNEY KELLEY AND WHITE, GTC | Honor, MODIFICATION, Mortgage, Motions, Pleading, Servicer | Tagged: Danielle Kelley, Florida, HAMP, modification of mortgage loan, money trial, paper trial, permanent modification, trial modification | 4 Comments »

DANIELLE KELLEY, ESQ. ON BLOGTALKRADIO.COM 1P.M. Sunday, June 30

Posted on June 29, 2013 by Neil Garfield

Call in and ask questions:

https://mail-attachment.googleusercontent.com/attachment/u/0/s/?view=att&th=13f8fedaa7af0881&attid=0.1&disp=attd&realattid=769b2943-c02d-4305-a586-1356d0456696&safe=1&zw&saduie=AG9B_P_DCkgli0FzdgKNROgb7CGn&sadet=1372509323342&sads=1tTrekRDYIBgvYQNSfys6ACI9N8&sadssc=1

http://www.blogtalkradio.com/senkalive/2013/06/30/you-can-write-off-our-homes-but-were-still-here-1

LISTEN: Danielle Kelley is rapidly ascending to the position of one of the leading foreclosure defense attorneys. She is a partner in Garfield, Gwaltney, Kelley and White a law firm based in Tallahassee, the state capital of Florida. The firm is expanding its presence throughout Florida and provides extensive litigation support to attorneys throughout the United States.

Sunday, June 30th at 1:00 pm EST

Danielle Joyner Kelley: An attorney from FL who is fighting her own foreclosure case and also assisting homeowners who are facing foreclosures, evictions. Attorney Kelley testified before the House Committee against Florida House Bill 87 which has since passed and been signed into law.

She also said: ”Don’t discount these foreclosure victims, you can write off their home with a foreclosure judgment but they are still there, as are their stories, and they will be told.”

Darrell and Jennifer Neilander (CT) are fighting the servicers SLS and the alleged fake creditors pro se in Federal Court under the FDCPA statues charging that these servicers and creditors are 3rd party debt collectors. They are the only Plaintiffs in Federal Court in Connecticut challenging these entities.

Filed under: CORRUPTION, evidence, foreclosure, foreclosure mill, GARFIELD GWALTNEY KELLEY AND WHITE, GTC | Honor, Servicer | Tagged: Danielle Kelley | 70 Comments »

Who is the DEADBEAT: Borrower or Bank?

Posted on June 20, 2013 by Neil Garfield

Many thanks to Danielle Kelley, Esq. for appearing on last night’s members’ teleconference. I forgot to give the number out for the firm: 850-765-1236

Just to cap it off, here is her Post from yesterday at Danielle Kelley Blog:

Danielle Kelley, Esq.

The propaganda from the banks has been far-reaching. Even if they devised a scheme to fraudulently throw away a homeowner’s hope at a modification, they are still pursuing the “deadbeat” homeowner argument. The essence is that the homeowner was not paying, so it doesn’t matter what happened after the homeowner defaulted.

That “deadbeat” argument is a myth. Whenever I interview a client, I am careful not to lead them. I simply ask the question, “What caused you to go into default?”. Nine times out of ten I will hear, “The bank said I had to be so many months behind to help me.” Or in the alternative, “My payments kept increasing and I didn’t know why. I called the bank to ask and they told me that unless I was behind in payments they couldn’t help.” After that the homeowner is left at the mercy of bank who is pretending to consider them for a modification, but yet fraudulently thwarting that process.

The first answer is the “stop payment” answer, which I have discussed in a previous blog. The second answer is now what I call the “bait and switch” on escrow accounts. Homeowners who pay monthly to the bank, unless agreed otherwise, expect the bank to take part of that payment and pay the taxes and insurance on the property with it. If the bank does not, the escrow account goes into the negative and the homeowner has to make up the difference in the payment. It is called an “escrow shortage”. And no one is immune, not even those who pay every month, on time, and would not dare to consider themselves as people who would fall into foreclosure.

I have seen it time and again. In one case, BOA inflated the escrow account $12,000 which resulted in a payment of $900 more per month. That very case would become my own, with my father on our Note. When he called to ask “why” the payments were going up he was given the script “To get that $900 off you need help. We can’t help you because you are current on your payments. You need to show us you need our help by making a partial payment.” Later when the partial payment was not applied, BOA stated that to be considered for a modification we had to stop paying altogether. Left with four years of modification attempts in bad faith, we were requested by BOA (in order to keep the modification file open) to record a quit claim deed to myself and my husband which came with a high price for documentary stamps. We were told to submit letters to the bank, and then told we could not mention the “stop payment” language in them. The letters had to be all about how we were suffering a “hardship” with no blame pointed towards the bank. The reasoning? They had to get Freddie Mac, the loan “owner”, to approve a modification, and Freddie wouldn’t dare approve a modification if BOA had done something wrong. To this day, BOA wants to pursue a foreclosure, yet they have absolutely no explanation for what inflated the escrow account to begin with.

In another case, unrelated to me, other than my representation of my client, the bank stopped paying the insurance in full. The homeowner had no idea that the insurance policy had lapsed until a year later when they were asked to make up for an escrow deficiency. At a payment climbing hundreds of dollars more than they ever agreed to pay, when they had been making their payments in full and counting on the bank, per the mortgage contract, to pay the insurance, they were now faced with payments they should have never been liable for. They were not a “deadbeat”. They were paying in full all along.

Then the truth is brought to light, and the deadbeat argument fails because we learn that no one, not one person, is immune from this. If a homeowner is making monthly payments and depending on a bank to pay the taxes and insurance, they are at the mercy of the bank. And often to a bank like BOA who is seeking to foreclose loans to get them off of their books, as their own employee declarations filed in the HAMP case in Massachusetts show us.

They have no incentive not to deliberately inflate a homeowner’s escrow account and cause the payment to rise to the point where the homeowner calls them and eventually ends up in default. Their own employees have stated that they profit from foreclosures over modifications.

So before the argument is bought that the homeowner in foreclosure is a “deadbeat”, know this much, the bank can cause you to become a “deadbeat” too, even if every payment is made in full and right on time.

Filed under: CDO, Eviction, foreclosure, GARFIELD GWALTNEY KELLEY AND WHITE, GTC | Honor, Investor, Mortgage, securities fraud | Tagged: "Stop Payment" Instruction by Bank, Bank of America, Danielle Kelley, deadbeat, Freddie Mac, HAMP, LOAN MODIFICATION | 137 Comments »

Danielle Kelley appears on tonight’s member teleconference

Posted on June 19, 2013 by Neil Garfield

At 6 PM Eastern daylight Time I will host the twice monthly teleconference for members of the living lies blog. We are going to start adding guests more frequently than we had done in the past. Tonight we have Danielle Kelley who is an attorney in Tallahassee Florida and has been frequently quoted in mainstream media over the last few days regarding corruption of the modification process for mortgage loans under HAMP and other programs. She is also challenging foreclosures resulting from alleged “defaults” that only occurred because the bank or its representative told the borrower that they must stop paying if they want to be considered for a modification. It is a trick that has landed many people in foreclosure instead of modification.

Danielle Kelley is a partner in the law firm of Garfield, Gwaltney, Kelley and White with offices in Tallahassee and Fort Lauderdale.

The teleconference is only for paying members of the blog. If you have not recently updated your credit card information with our Internet store you should do so now.

Questions submitted by email will get preference over questions that are presented orally. The format for tonight’s short monologue by me, an interview of Danielle Kelley, and then questions and answers.

As always we caution you not to use the information on tonight’s program as advice on your case even if it is in Florida where we are licensed. Small details changing the fact pattern of each case would very likely change the tactics or strategy and certainly change the advice given to any client. Before you act or decide not to act based upon something you heard on our program or that you read on our blog you should first consult with a licensed attorney who is practicing in the geographical area and jurisdiction in which the property is located.

Bank of America employees admit they lied to foreclosure victims
http://www.allvoices.com/contributed-news/14814391-bank-of-america-employees-admit-they-lied-to-foreclosure-victims

Ex-BofA employees say they delayed mortgage help, received bonus for foreclosures
http://www.bizjournals.com/charlotte/blog/bank_notes/2013/06/ex-bofa-employees-say-they-delayed.html

Waters Asks for Investigation into B of A Foreclosure Tactics
http://www.americanbanker.com/issues/178_117/waters-asks-for-investigation-into-bofa-foreclosure-tactics-1059962-1.html

Where did all that money go? Why Citi Wants to Rack Up US Taxes
http://www.cnbc.com/id/100823752
UK parliamentarians call for ‘reckless’ bankers to face jail
http://uk.reuters.com/article/2013/06/19/uk-britain-banks-idUKBRE95H1FB20130619

Filed under: CDO, CORRUPTION, Eviction, foreclosure, GARFIELD GWALTNEY KELLEY AND WHITE, GTC | Honor, Investor, Mortgage, securities fraud | Tagged: Danielle Kelley, Garfield Gwaltney Kelley and White | 13 Comments »

Danielle Kelley Looks at New Florida Law: Pitfalls and Possibilities

Posted on June 18, 2013 by Neil Garfield

The fundamental paradigm shift that is coming is that the banks are the deadbeats, not the borrowers. The borrowers are seeking to enforce a fair deal; the banks are seeking to steal and lie their way through the PONZI scheme we called “Securitization.” —Neil F Garfield, Livinglies.me

If you are seeking legal representation or other services call our South Florida customer service number at 954-495-9867 and for the West coast the number remains 520-405-1688. In Northern Florida and the Panhandle call 850-765-1236. Customer service for the livinglies store with workbooks, services and analysis remains the same at 520-405-1688. The people who answer the phone are NOT attorneys and NOT permitted to provide any legal advice, but they can guide you toward some of our products and services.

The selection of an attorney is an important decision and should only be made after you have interviewed licensed attorneys familiar with investment banking, securities, property law, consumer law, mortgages, foreclosures, and collection procedures. This site is dedicated to providing those services directly or indirectly through attorneys seeking guidance or assistance in representing consumers and homeowners. We are available TO PROVIDE ACTIVE LITIGATION SUPPORT to any lawyer seeking assistance anywhere in the country, U.S. possessions and territories. Neil Garfield is a licensed member of the Florida Bar and is qualified to appear as an expert witness or litigator in in several states including the district of Columbia. The information on this blog is general information and should NEVER be considered to be advice on one specific case. Consultation with a licensed attorney is required in this highly complex field.

Danielle Kelley, Esq. is a partner in Garfield, Gwaltney, Kelley and White located in Tallahassee. She has been a constant contributor to the dialogue on wrongful foreclosures and has been quoted recently in a number of articles in mainstream media. For further information on the firm’s services please call 850-765-1236.

Editor’s Comment: The Florida bill was clearly meant to speed up the “inevitable” foreclosure process, which is the wrong assumption right off the bat. If the foreclosures are wrongful we are not talking about some “i” that wasn’t dotted or some “t” that wasn’t crossed. We are talking about foreclosures that (a) didn’t need to happen and (b) couldn’t happen legally if the party bringing the foreclosure had no right to do so.

The fundamental paradigm shift that is coming is that the banks are the deadbeats, not the borrowers. The borrowers are seeking to enforce a fair deal; the banks are seeking to steal and lie their way through the PONZI scheme we called “Securitization.”

Verification of the complaint has taken another bizarre turn. In reading the testimony and affidavits of those who “verified” the complaint, it turns out they signed the verification but knew nothing about the case. The only thing they verified was that the complaint contained information that was given to her or him by unknown parties through computer via a computer monitor.

Banks are using the verification aspect to bolster their false claims to the business records exception of hearsay. They are wrong and any judge who rules that is wrong if the verifier or affiant (a) is not the records custodian and (b) had no basis for personally knowing the truth. Pressed to give an accounting for how they know what they know, the verifier will answer “it’s in the complaint.” They often express confidence that it wouldn’t be in the complaint if it wasn’t true. Talk about circular logic!

The recent revelations about Bank of America are the tip of the iceberg of lying and deception that started when the first mortgage bond was sold and the first loan application was taken within the scope of the PONZI scheme that required bonds to be sold in order to make payments to the investors.

The fact that BOA told its employees to lie to customers in order to get them into foreclosure is enough to infer the truth, to wit: the goal was foreclosures and not financial recovery. How is that possible? What bank would not want the most it could get in mitigation of a “loss” it supposedly incurred as a result of a “default” by a “borrower” on a “debt” that was owed to the bank because the bank funded the origination or acquisition of the loan?

The questions answer themselves. If the Bank had a real loss they would want to mitigate the loss as quickly as possible. In the past that has always meant some sort of workout when that possible. Now we find out that BOA was paying its employees to lie and deceive the “borrowers” for the express purpose of getting the property into foreclosure even though that means getting a lot less money for the “creditor” than any modification, settlement or workout. So the answer is that they had no real loss and they must want the foreclosure for some other reason.

The “other reason” is simply that foreclosure is the cover-up for the PONZI scheme. And the government feels stuck by assurances it gave the large banks (see statements of future whistle blowers) when they forced the banks to acquire the investment banks, the aggregators and other players in this scheme, before the government knew that the scheme existed. So the government is buying up worthless mortgage bonds with no loans backing them and pretending that the bonds are really worth something. This is supposed to shore up the financial system by avoiding massive failures of the largest banks — something that is eventually going to happen anyway because the $ trillions that were siphoned off from from investors were then siphoned off from the banks and management now controls that money.

If you look at the merger and bond activity you can see the banks acquiring other institutions in order to provide a safety valve through which part of the ill-gotten gains from the PONZI scheme can be repatriated and the “earnings” of the bank can be seen as stable or increasing even while the rest of the world goes to hell in a hand basket. (see below). The rest of the money is being controlled by a handful of people (see future whistle blowers) who are actually controlling world events by controlling the purse strings of all world economies.

Sounds like a conspiracy theory, doesn’t it. Maybe a little less crazy now that we know that BOA was rewarding employees for lying to customers. And maybe a little less so now that we know the bonus was paid with a Target gift card. If it was a legitimate bonus, why use Target as the intermediary? Answer: the auditors of the bank probably would not like seeing bonuses paid to people who were supposedly working with borrowers on modification or settlement of the loan — especially when the record shows that the bonus was for getting the case into foreclosure rather than settlement.

As you can read for yourself below, the pace of foreclosures is picking up and is going to accelerate under the new Florida law. They are in a rush to hush up any further whistle blowers who might blow the whole thing wide open. But the carrot they held out to homeowners might be the bank’s undoing if the borrower moves promptly and fights the foreclosure on the basis of ownership of the loan. There is only one way to really own a loan and that is by paying for it. The argument has been rejected by many judges, but now it is right in the statute that the proof of ownership must be present as a condition precedent which means that the real burden of proof is switching back to the banks, where it belongs.

————————————————-

Danielle Kelley, Esq. June, 2013

The banks wanted this bill – so let’s take a look at the “consumer friendly” portions and get ready. Keep in mind the act is remedial in nature. All complaints filed after June 7, 2013 will be subject to a motion to dismiss if the plaintiff does not meet the requirements of the new bill:

1) they must give affirmative allegations that at the time foreclosure is filed they are the holder of the original note, allege with specificity the factual basis by which they are entitled to enforce the note under 673.3011 (no more either/or pleading),

3) a plaintiff given authority to sue (i.e. servicer or someone coming in with a POA like we’ve been seeing) – the Complaint shall describe their authority and identify with specificity the document that gives them authority to act on behalf of the Plaintiff.

Given what we know about how they verify complaints, they will have a hard road showing they can verify the plaintiff actually “has” the original note. I won’t settle for anything less than a declaration that they have seen it in person – not on a computer screen. The bill states, “The term “original note” or “original promissory note” means the signed or executed promissory note rather than a copy thereof.” I don’t want to hear about a janitor who was adopted as assistant vice president through corporate resolution and is verifying they saw the “original note” on a screen. Keep in mind that they executed the complaints filed this month months ago – they sign right after they send off for verification usually.

If they file a lost note count they must attach an affidavit under penalty of perjury to the Complaint that

1) details a clear chain endorsements, transfers, or assignments Note;

2) set forth facts showing the Plaintiff is entitled to enforce the lost instrument (Note); and

3) attach documents to the affidavit such as copies of the Note, allonges, audit reports, or other evidence of acquisition, ownership, and possession.

Relevant portions of the bill below:

(2) A complaint that seeks to foreclose a mortgage or other lien on residential real property, including individual units of condominiums and cooperatives, designed principally for occupation by from one to four families which secures a promissory note must:

(a) Contain affirmative allegations expressly made by the plaintiff at the time the proceeding is commenced that the plaintiff is the holder of the original note secured by the mortgage; or

(b) Allege with specificity the factual basis by which the plaintiff is a person entitled to enforce the note under s. 673.3011.

(3) If a plaintiff has been delegated the authority to institute a mortgage foreclosure action on behalf of the person entitled to enforce the note, the complaint shall describe the authority of the plaintiff and identify, with specificity, the document that grants the plaintiff the authority to act on behalf of the person entitled to enforce the note. This subsection is intended to require initial disclosure of status and pertinent facts and not to modify law regarding standing or real parties in interest. The term “original note” or “original promissory note” means the signed or executed promissory note rather than a copy thereof. The term includes any renewal, replacement, consolidation, or amended and restated note or instrument given in renewal, replacement, or substitution for a previous promissory note. The term also includes a transferable record, as defined by the Uniform Electronic Transaction Act in s. 668.50(16).

(4) If the plaintiff is in possession of the original promissory note, the plaintiff must file under penalty of perjury a certification with the court, contemporaneously with the filing of the complaint for foreclosure, that the plaintiff is in possession of the original promissory note. The certification must set forth the location of the note, the name and title of the individual giving the certification, the name of the person who personally verified such possession, and the time and date on which the possession was verified. Correct copies of the note and all allonges to the note must be attached to the certification. The original note and the allonges must be filed with the court before the entry of any judgment of foreclosure or judgment on the note.

(5) If the plaintiff seeks to enforce a lost, destroyed, or stolen instrument, an affidavit executed under penalty of perjury must be attached to the complaint. The affidavit must:

(a) Detail a clear chain of all endorsements, transfers, or assignments of the promissory note that is the subject of the action.

(b) Set forth facts showing that the plaintiff is entitled to enforce a lost, destroyed, or stolen instrument pursuant to s. 673.3091. Adequate protection as required under s. 673.3091(2) shall be provided before the entry of final judgment.

(c) Include as exhibits to the affidavit such copies of the note and the allonges to the note, audit reports showing receipt of the original note, or other evidence of the acquisition, ownership, and possession of the note as may be available to the plaintiff.

(6) The court may sanction the plaintiff for failure to comply with this section.

The Goal is Foreclosures and the Public, the Government and the Courts Be Damned

Posted on June 17, 2013 by Neil Garfield

13 Questions Before You Can Foreclose

foreclosure_standards_42013 — this one works for sure

If you are seeking legal representation or other services call our South Florida customer service number at 954-495-9867 and for the West coast the number remains 520-405-1688. In Northern Florida and the Panhandle call 850-765-1236. Customer service for the livinglies store with workbooks, services and analysis remains the same at 520-405-1688. The people who answer the phone are NOT attorneys and NOT permitted to provide any legal advice, but they can guide you toward some of our products and services.

The selection of an attorney is an important decision and should only be made after you have interviewed licensed attorneys familiar with investment banking, securities, property law, consumer law, mortgages, foreclosures, and collection procedures. This site is dedicated to providing those services directly or indirectly through attorneys seeking guidance or assistance in representing consumers and homeowners. We are available TO PROVIDE ACTIVE LITIGATION SUPPORT to any lawyer seeking assistance anywhere in the country, U.S. possessions and territories. Neil Garfield is a licensed member of the Florida Bar and is qualified to appear as an expert witness or litigator in in several states including the district of Columbia. The information on this blog is general information and should NEVER be considered to be advice on one specific case. Consultation with a licensed attorney is required in this highly complex field.

Danielle Kelley, Esq. is a partner in the firm of Garfield, Gwaltney, Kelley and White (GGKW) in Tallahassee, Florida 850-765-1236

EDITOR’S NOTE: SOMETIMES IT PAYS TO SHOW YOUR EXASPERATION. Danielle was at a hearing recently where all she wanted was to enforce a permanent modification for which her client had already been approved by Bank of America and BOA was trying to get out of it and pursue foreclosure even though the deal was done and there was no good or valid business reason why they would oppose a modification they already approved — except that they want to lure people into defaults and foreclosure to avoid liability for buy-backs, insurance, and credit default swap proceeds they received.

They need the foreclosure because that is the stamp of approval that the loans were valid and the securitization wasn’t a sham. Without the foreclosure, they stand to lose not only a lot of money in paybacks, but their very existence. Right now they are carrying assets that are fictitious and they are not reporting liabilities that are very real. At the end of the day, the public will see and even government officials whose “Services” have been purchased by the banks will not be able to deny that the nation’s top banks are broke and are neither too big to fail nor too big to jail. When that happens, our economy will start to recover ans the flow of credit and funds resumes and the banks’ stranglehold on government and on our society will end, at least until the next time.

THIS IS WHAT DANIELLE KELLEY WROTE TO ME AFTER THE HEARING:

At the hearing against BOA on an old case of mine and Bill’s [William GWALTNEY, partner in GGKW] today I moved to enforce settlement. They actually agreed to a trial payment with my client in writing at mediation 2 years ago. The Judge granted the motion and wants a hearing in 60 days on the arrears (which he agreed my client isn’t liable for), sanctions and fees. She made her payment post-mediation and they sent the checks back. I gave him the Massachusetts affidavits from the BOA employees. The Judge looked shocked. Opposing Counsel argued the Massachusetts case had nothing to do with our case.

Judge said “Mrs. Kelley how about I enter an order telling Plaintiff they have so many days to resolve this?” I said “with all due respect your Honor BOA hasn’t listened to the OCC and followed the consent order, they haven’t listened to DOJ on the consent judgement and they are violating the AG settlement. I can assure you 100% they won’t listen to this Court either. Once we leave this room we are at the mercy of BOA actually working with us and their own attorney nor this court can get them to. Their own attorney couldn’t reach them yesterday or today. My client was to send in one utility bill two years ago. She sent it the day after mediation and they’ve sat and racked up two years of arrears and fees. This court has the power to sanction that behavior under rule 1.730 and should because this was orchestrated. The Massachusetts case is a federal class action which includes Florida homeowners like my client. It says Florida on the Motion for class certification so it does matter in this case. This was a scheme and a fraud. It was planned and deliberate”.

Opposing counsel wanted to start the modification process over because the mediation agreement said “Upon completion of the trial payments Defendant will be eligible for a permanent modification”. Opposing counsel said “just because they meet the trial payments doesn’t mean they get a permanent mod.” I said “under the consent judgment they better” and told the judge we were not going through the modification again, my client had already been approved. He agreed and said that the trial would become permanent and ordered BOA to provide an address for payment. He told opposing counsel that the argument that a trial period wouldn’t become permanent wasn’t going to work for him.

I love the 14th circuit. There is a great need from here to Pensacola and in the smaller counties like I was in today you can actually get somewhere.

Now the banks won’t even say impasse at mediation. It’s always “no agreement”. But they’ll tell you to send in documents the next week only to say they didn’t get them. Now after those affidavits I see why.

Danielle Kelley, Esq.

Garfield, Gwaltney, Kelley & White
4832 Kerry Forest Parkway, Suite B
Tallahassee, Florida 32309
(850) 765-1236

FOLLOW DANIELLE KELLEY, ESQ. ON HER BLOG

Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GARFIELD GWALTNEY KELLEY AND WHITE, GTC | Honor, Investor, Mortgage, securities fraud | Tagged: affidavit, Bank of America, Danielle Kelley, destroyed paperwork, foreclosure, foreclosures, HAMP, LOST PAPERWORK, modification, Sen. Warren, stress, too big to fail | 72 Comments »

Reuters: BOA Paid Bonuses of Target Gift Cards To Modification Employees For Steering Cases Into Foreclosure, Fired Them If They Didn’t Go After the Foreclosure

Posted on June 15, 2013 by Neil Garfield

SIX FORMER BOA EMPLOYEES TESTIFY THAT BOA MODIFICATION AND FORECLOSURE SPECIALISTS WERE PAID AND INSTRUCTED TO LIE TO HOMEOWNERS, PAID WITH GIFT CARDS IF THEY SUCCESSFULLY THREW THE HOMEOWNER INTO FORECLOSURE AND WERE DISCIPLINED OR FIRED IF THEY FAILED TO TURN OVER THE REQUESTS FOR MODIFICATION INTO THE RIGHT NUMBER OF FORECLOSURES.

IF YOU WANT A MODIFICATION, YOU NEED A LAWYER TO CHALLENGE THE REPRESENTATIONS OF LOST DOCUMENTS AND INCOMPLETE APPLICATIONS FOR MODIFICATION. AND YOU ESPECIALLY NEED A LAWYER OR HUD COUNSELOR TO SUBMIT THE COVER LETTER AND THE SPECIFIC PROPOSAL FOR MODIFICATION WITH AFFIDAVITS FROM EXPERTS — (usually absent because the bank doesn’t request it). LIVINGLIES PROVIDES SUPPORT TO ANY ATTORNEY NEEDING ASSISTANCE IN DRAFTING THE COVER LETTER, AFFIDAVITS AND PROPOSAL. CALL CUSTOMER SUPPORT EAST COAST 954-495-9867 OR CUSTOMER SERVICE WEST COAST 520-405-1688 FOR PRICE QUOTES AND REQUIREMENTS. GGKW PROVIDES LEGAL SERVICES ONLY IN FLORIDA.

If you are seeking legal representation or other services call our South Florida customer service number at 954-495-9867 and for the West coast the number remains 520-405-1688. In Northern Florida and the Panhandle call 850-765-1236. Customer service for the livinglies store with workbooks, services and analysis remains the same at 520-405-1688. The people who answer the phone are NOT attorneys and NOT permitted to provide any legal advice, but they can guide you toward some of our products and services.

The selection of an attorney is an important decision and should only be made after you have interviewed licensed attorneys familiar with investment banking, securities, property law, consumer law, mortgages, foreclosures, and collection procedures. This site is dedicated to providing those services directly or indirectly through attorneys seeking guidance or assistance in representing consumers and homeowners. We are available TO PROVIDE ACTIVE LITIGATION SUPPORT to any lawyer seeking assistance anywhere in the country, U.S. possessions and territories. Neil Garfield is a licensed member of the Florida Bar and is qualified to appear as an expert witness or litigator in in several states including the district of Columbia. The information on this blog is general information and should NEVER be considered to be advice on one specific case. Consultation with a licensed attorney is required in this highly complex field. Garfield is a partner of Garfield, Gwaltney, Kelley and White

Danielle Kelley, Esq. is a partner in the firm of Garfield, Gwaltney, Kelley and White (GGKW) in Tallahassee, Florida 850-765-1236

Our very own Danielle Kelley was quoted in a Reuters article yesterday that laid out in exquisite detail the endemic practice of lying, layering, laddering and forcing homeowners into foreclosure when a modification was better for both the homeowner and the investor. The article is by Michelle Conlin and Peter Rudegeair, Reuters, News Agency. Article carried in New York Times and other periodicals. Story picked up by several investigative reporters for in depth reports on TV, radio and other news media.

Since BOA might be successful in killing story, we produce most of it here:

The full article can be found at: FORMER BANK OF AMERICA WORKERS ALLEGE IT LIED TO HOMEOWNERS

EDITOR’S NOTE: As we have been saying for 6 years, sometimes alone in the wilderness, this is not a conspiracy theory, it is a fact. The entire securitization scheme was a lie, a Ponzi scheme to steal trillions of dollars from the U.S. Economy, and trillions of dollars from other countries around the world.

In order to make it work, the big banks had to set up an infrastructure in which they would lie, cheat and steal, sending the profits off to other jurisdictions and covering up the crimes by using companies at each layer of the scheme who channeled a large portion of investor funds and most of the recovery from insurance, credit default swaps, and government bailouts away from the investors and away from the borrowers.

The essential capstone of the strategy was the foreclosure sale and the expiration of the right of redemption. Without it, the banks could owe as much as $25 trillion back to insurers, credit default swap counterparties, government agencies, government sponsored entities (Fannie and Freddie) and the investors who provided all the money that was used to create the largest liquidity boom in history. And then there were the extra fees for servicing a loan that was deemed non-performing (even though it was the bank who lied to homeowners telling them to stop paying). So far it has been the perfect crime.

And the underpinning of the strategy was that the banks could control the narrative — that it was about borrowers who were intentionally getting into deals they could not afford — when it was just the opposite, to wit: it was the banks acting through many layers of nominees, conduits and intermediaries whose goal was to rid themselves of the money on deposit from investors (money that should have been entirely into a REMIC trust account and never was). Much of the money successfully stolen was in the form of a second tier yield spread premium that was created in the spread between the loans that were promised to investors and the actual loans made to borrowers.

It was all a lie. The borrowers believed the lender was the lender and that the lender would not assume a high risk on a loan that was doomed to fail. The investors believed that since most of them were managed funds who were required to invest only in triple A rated securities that were insured and guaranteed that industry standard underwriting was under way. Nothing could have been further from the truth.

The Banks were lying and paying for others to lie about the property valuation, the safety of the collateral, the existence of the collateral for investors, and the existence of insurance and hedge products for the investors. They lied to investors, they lied to the press, they lied to the government agencies, they lied to the two presidents that were caught in the web of deceit, and they lied to the secretaries of the treasury.

And now, as predicted the tsunami is going the other way as the truth sloshes over all the lies they told. We start with the story of modification of loans which could have resulted on most of the foreclosed homes being modified. Now we have strong evidence from the actual people who worked for BOA and other large financial institutions that their strategy was to use the promise of modification to lure homeowners into default on loans owned by unidentified parties, and stretch out the time so that the hole dug for the homeowner was too deep to get out of, and eventually put a cap on the well that could spray liability all over the mega banks and end their existence.

PRACTICE HINT: WITHOUT EXPERTS IN E-DISCOVERY, YOU WILL BE UNABLE TO WIN YOUR CASES OR GET ENOUGH TRACTION TO FORCE MODIFICATION ON THE TERMS OFFERED BY THE BORROWER. GGKW, IN WHICH DANIELLE KELLEY IS PARTNER, IS DEVELOPING RELATIONSHIPS WITH PRIVATE INVESTIGATORS AND FORENSIC COMPUTER SPECIALISTS WHO ASSIST US ON MOST OF OUR CASES. WHEN YOUR GOAL IS TO WIN RATHER THAN DELAY, IT COSTS MONEY. ANTI-FORECLOSURE MILLS CHARGING LOW MONTHLY PAYMENTS ARE EFFECTIVE AT DELAYING THE FORECLOSURE BUT USUALLY INEFFECTIVE AT STOPPING IT OR EVEN WINNING THE CASE. YOU GET WHAT YOU PAY FOR.

FOLLOW DANIELLE KELLEY, ESQ. ON HER BLOG

Significant quotes from Reuters article:

Borrowers filed the civil case against Bank of America in 2010 and are now seeking class certification. The affidavits, dated June 7, are the latest accusations over the mishandling of mortgage modifications by some top U.S. banks.

Six former Bank of America Corp (BAC.N) employees have alleged that the bank deliberately denied eligible home owners loan modifications and lied to them about the status of their mortgage payments and documents.

The bank allegedly used these tactics to shepherd homeowners into foreclosure, as well as in-house loan modifications. Both yielded the bank more profits than the government-sponsored Home Affordable Modification Program, according to documents recently filed as part of a lawsuit in Massachusetts federal court.

The former employees, who worked at Bank of America centers throughout the United States, said the bank rewarded customer service representatives who foreclosed on homes with cash bonuses and gift cards to retail stores such as Target Corp (TGT.N) and Bed Bath & Beyond Inc (BBBY.O).

For example, an employee who placed 10 or more accounts into foreclosure a month could get a $500 bonus. At the same time, the bank punished those who did not make the numbers or objected to its tactics with discipline, including firing.

About twice a month, the bank cleaned out its HAMP backlog in an operation called “blitz,” where it declined thousands of loan modification requests just because the documents were more than 60 months old, the court documents say.

The testimony from the former employees also alleges the bank falsified information it gave the government, saying it had given out HAMP loan modifications when it had not.

Mortgage problems have dogged Bank of America since its disastrous purchase of Countrywide Financial in 2008. The bank paid $42 billion to settle credit crisis and mortgage-related litigation between 2010 and 2012, according to SNL Financial.

Bank of America and four other banks reached a $25 billion landmark settlement with regulators in 2012, following a scandal in late 2010 when it was revealed employees “robo signed” documents without verifying them as is required by law.

But problems have persisted. Since 2012, more than 18,000 homeowners have filed complaints about Bank of America with the Consumer Financial Protection Bureau, a new agency created to help protect consumers. Recently, the attorney generals of New York and Florida accused Bank of America of violating the terms of last year’s settlement.

The government created HAMP in 2009 in response to the foreclosure epidemic and to encourage banks to give homeowners loan modifications, allowing some borrowers to stay in their homes.

THE BLITZ

The court documents paint a picture of customer service operations where managers roamed the floor with headsets, able to listen into any call without warning. Service representatives were told to lie to homeowners, telling them their paperwork and payments had not been received, when in reality they had.

“This is exactly what’s been happening to homeowners for years,” said Danielle Kelley, a foreclosure defense lawyer in Florida. “No matter how many times they send in their paperwork, or how often they make their payments, they simply can’t get loan modifications. They wind up in foreclosure instead.”

The former employees said they were told to falsify electronic records and string homeowners along in foreclosure as long as possible. The problem was exacerbated because the bank did not have enough employees handling modifications, adding to the backlog of cases purged during the “blitz” operations.

Filed under: CDO, CORRUPTION, Eviction, evidence, expert witness, Fannie MAe, foreclosure, GARFIELD GWALTNEY KELLEY AND WHITE, GTC | Honor, Investor, Mortgage, securities fraud, Servicer | Tagged: Bed bath and beyond Gift Cards, BOA, Danielle Kelley, Garfield, Gwaltney, Kelley and White (GGKW), lying, Michelle Conlin and Peter Rudegeair, modifications, perjury, Reuters, reviews, Target gift cards, U.S. Economy, World Economy | 243 Comments »

What to say about BOA

Posted on June 14, 2013 by Neil Garfield

13 Questions Before You Can Foreclose

foreclosure_standards_42013 — this one works for sure

If you are seeking legal representation or other services call our South Florida customer service number at 954-495-9867 and for the West coast the number remains 520-405-1688. In Northern Florida and the Panhandle call 850-765-1236. Customer service for the livinglies store with workbooks, services and analysis remains the same at 520-405-1688. The people who answer the phone are NOT attorneys and NOT permitted to provide any legal advice, but they can guide you toward some of our products and services.

The selection of an attorney is an important decision and should only be made after you have interviewed licensed attorneys familiar with investment banking, securities, property law, consumer law, mortgages, foreclosures, and collection procedures. This site is dedicated to providing those services directly or indirectly through attorneys seeking guidance or assistance in representing consumers and homeowners. We are available TO PROVIDE ACTIVE LITIGATION SUPPORT to any lawyer seeking assistance anywhere in the country, U.S. possessions and territories. Neil Garfield is a licensed member of the Florida Bar and is qualified to appear as an expert witness or litigator in in several states including the district of Columbia. The information on this blog is general information and should NEVER be considered to be advice on one specific case. Consultation with a licensed attorney is required in this highly complex field.

My partner, Danielle Kelley, Esq. was in a hearing for the simple purpose of enforcing a modification agreement that had been approved by Bank of America. In typical style the bank was now saying that the homeowner was not entitled to a permanent modification even though the client had satisfied all of the terms of the trial modification. You might think this should be easy and you would be right.

Sometimes it is good courtroom strategy to show your exasperation with the system, with the court and with banks that are so arrogant that they think that they can continue to violate court orders, consent decrees, laws, rules and regulations.

Here is part of what Danielle wrote to me shortly after the hearing:

At the hearing against BOA on an old case of mine and Bill’s [William Gwaltney of GGK] today I moved to enforce settlement. They actually agreed to a trial payment with my client in writing at mediation 2 years ago. The Judge granted the motion and wants a hearing in 60 days on the arrears (which he agreed my client isn’t liable for), sanctions and fees. She made her payment post-mediation and they sent the checks back. I gave him the Massachusetts affidavits from the BOA employees. The Judge looked shocked. Opposing Counsel argued the Massachusetts case had nothing to do with our case.

Judge said “Mrs. Kelley how about I enter an order telling Plaintiff they have so many days to resolve this?” I said “with all due respect your Honor BOA hasn’t listened to the OCC and followed the consent order, they haven’t listened to DOJ on the consent judgement and they are violating the AG settlement. I can assure you 100% they won’t listen to this Court either. Once we leave this room we are at the mercy of BOA actually working with us and their own attorney nor this court can get them to. Their own attorney couldn’t reach them yesterday or today. My client was to send in one utility bill two years ago. She sent it the day after mediation and they’ve sat and racked up two years of arrears and fees. This court has the power to sanction that behavior under rule 1.730 and should because this was orchestrated. The Massachusetts case is a federal class action which includes Florida homeowners like my client. It says Florida on the Motion for class certification so it does matter in this case. This was a scheme and a fraud. It was planned and deliberate”.

Opposing counsel wanted to start the modification process over because the mediation agreement said “Upon completion of the trial payments Defendant will be eligible for a permanent modification”. Opposing counsel said “just because they meet the trial payments doesn’t mean they get a permanent mod.” I said “under the consent judgment they better” and told the judge we were not going through the modification again, my client had already been approved. He agreed and said that the trial would become permanent and ordered BOA to provide an address for payment. He told opposing counsel that the argument that a trial period wouldn’t become permanent wasn’t going to work for him.

I love the 14th circuit. I talked to a potential client last night in Santa Rosa county briefly (giving him to Danielle G) who said the judges in Pensacola are pro-bank. But in between here and there its different. He said he hired Matt Weidner (who referred him to me) because he couldn’t find an attorney in North Florida who did foreclosure defense. There is a great need from here to Pensacola and in the smaller counties like I was in today you can actually get somewhere.

She was pro se at mediation but that agreement is a blessing. Now the banks won’t even say impasse at mediation. It’s always “no agreement”. But they’ll tell you to send in documents the next week only to say they didn’t get them. Now after those affidavits [in the class action in Massachusetts] I see why.

Filed under: CDO, CORRUPTION, Eviction, foreclosure, GARFIELD GWALTNEY KELLEY AND WHITE, GTC | Honor, Investor, Mortgage, securities fraud | Tagged: 14th circuit, Bank of America, Danielle Kelley, Florida, Garfield Gwaltney's Kelley and White, GGKW, modification, permanent modification, trial modification | 81 Comments »

BOA “SENIOR COLLECTOR”: “I lied because I was told to lie.”

Posted on June 13, 2013 by Neil Garfield

Want to know why the blog is called “Living Lies”? Then read this:

see affidavit.boa3.djk

see also Memorandum to Certify Class: Editor’s Note: This is where the banks are at their most vulnerable.. They have gone to great lengths to create the illusion that they were modifying loans or even willing to do so when in fact what they really wanted and needed is a foreclosure sale to prevent them from getting hammered on liability for stealing the investors’ money and for diversion of both assets and money from the investors and from what would have been a benefit to borrowers. memotocertifyclass. I believe that there are monetary damages that could be awarded particularly when the pretender lender cannot come up with an allegation and proof of financial injury. Opportunities to sell or refinance the home were thwarted both by the pending foreclosure action and the negative credit reporting from non-creditors. People who have had their credit scores tanked by the pretender lenders should write to the credit reporting agencies and tell them that the report is false and fraudulent — that you never owed any money to the entity that entered the negative report.

Practice Hint: Get the name of the person and confirm their telephone, email, fax and physical address. Tell them you are recording the conversation for training purposes. And then record it.

This affidavit shows exactly why you need people are both lawyers and forensic computer experts to assist on most cases. Law firms lacking these resources and lacking private investigators, are not equipped well enough to do battle with these lying behemoths. If they are charging low fees just to sign you up, their chances are diminished that they can do anything besides delay a wrongful foreclosure instead of beating it.

This affidavit is an example of why the entire foreclosure process is going to unravel in the near future. Previously judges were resisting pleading, argument and discovery direct it at the credibility and truthfulness of affidavits and live testimony in court if they were submitted by a well-known bank or other institution supposedly acting on behalf of a bank. As time passed more and more judges were beginning to discern inconsistencies in the pleading and proof of the banks. But they still thought that the banks were most likely in possession of “the truth” and that any representation from the bank should be treated as credible whereas any representation from the borrower should be treated as dilatory at best.

Bank of America has taken the position that its house is totally in order. They even got the Atty. Gen. of the state of New York to back off of a lawsuit that was eventually filed only against HSBC. Danielle Kelly, Esq., of the firm of Garfield, Gwaltney, Kelley and White is writing an article about affidavits (in support of foreclosing) signed by people with no idea of what they contain (or knowing that they are lies), including the description of the signor as someone with authority to do so. You’ll see that article shortly, so I won’t belabor the point. I’ll simply quote the following from an affidavit of a supposedly senior person at BOA filed in United States District Court for the District of Massachusetts.:

Using the Bank of America computer systems I saw that hundreds of customers had made their required trial payments, sent the documents requested of them, but had not received permanent modifications. I also saw records showing that Bank of America employees have told people that documents had not been received when, in fact, the computer system showed that Bank of America had received the documents. This was consistent with the instructions my colleagues and I were given. We were told to lie to customers and claim that Bank of America had not received documents it had requested, and that it had not received trial payments (when in fact it had). We were told that admitting that the bank received documents would “open a can of worms” since the bank was required to underwrite a loan modification within 30 days of receiving those documents and it did not have sufficient underwriting staff to complete the underwriting in that time…. Site leaders regularly told us that the more we delayed the HAMP modification process, the more fees Bank of America would collect. We were regularly drilled that it was our job to maximize fees for the bank by fostering and extending the lay of the … modification process by any means we could — this included lying to customers. For example, we were instructed by our supervisors at Bank of America to delay modifications by telling homeowners who called in at their documents were “under review,” when, in fact, there had been no review or any other work done on the file.

Employees who were caught admitting that Bank of America had received financial documents or that the borrower was actually entitled to a permanent loan modification where discipline and often terminated without warning.

The only other thing that I would state at this point is that Bank of America did not merely lie to its customers. Bank of America makes a practice of lying to its own staff. While the use of a “nonperforming” loan are higher than the fees paid on a “performing” loan, the real reason for this outrageous behavior is that the banks are attempting to protect and maintain their receipt of outrageous sums of money that they have declared to be proprietary trading profits. As I have stated before these banks are intermediaries. They are not and never were principals or real parties in interest in any transaction between the homeowner and the investors who put up the money.

As partial explanation of what I am talking about, consider this: you order a brand-new TV on Amazon using one of your many plastic cards. The vendor is (by way of example) Best Buy. Your account is debited $1000 which is exactly the amount you agreed to pay. Later, you find out that Best Buy accepted $600 for the TV and the intermediaries kept the other $400. You also find out that during the shipping process the intermediaries took possession of the TV and intentionally dropped it 30 times to make sure that it wouldn’t work. During that process you learn that the intermediaries each paid for a contract of insurance using your money. Sure enough, the TV arrives in 1000 pieces. Each of the intermediaries receives full payment for the TV probably at the original purchase price of $1000. The intermediaries tell you that your problem is with Best Buy because that is the vendor in the transaction. Best Buy tells you that the TV was just fine when it left its distribution center and directs you to one of the intermediaries that handled either the shipment or the payment for the shipment. You are left going around in circles and you get worn out or you accept a settlement that is worth far less than the TV you purchased.

Now comes the fun part. The issuer of the credit card wants you to repay them $1000 at the end of the month or pay monthly installments with an interest rate of 24%. All you know is that you got screwed but you’re not entirely sure how that happened. The purpose of this blog is to educate you gradually on how you got screwed and why you are not a deadbeat; instead, you are a pawn in a very large Ponzi scheme.

Garfield, Gwaltney, Kelley & White

4832 Kerry Forest Parkway, Suite B

Tallahassee, Florida 32309

(850) 765-1236

More News:

http://www.fbi.gov/lasvegas/press-releases/2013/former-chief-executive-officer-of-mortgage-servicing-company-pleads-guilty-to-bank-fraud-in-scheme-to-withhold-funds-from-wells-fargo-bank – But they won’t go after Wells? Makes a lot of sense

From Danielle Kelley, Esq. : The affidavits filed with the Court in Massachusetts by BOA and Urban employees are infuriating. I particularly like the one that talks about the gift cards and $500 bonus payments to employees who had high foreclosure numbers and the one about the “Blitz” where as many as 1,500 modification applications would be denied several times a month based on production numbers whether the homeowners truly qualified for a modification or not. Selling out homeowners while collecting federal incentives to “pretend” to consider them for a federal modification program and then behind closed doors giving Target gift cards to employees who have high foreclosure numbers?

Filed under: CDO, CORRUPTION, Eviction, foreclosure, GARFIELD GWALTNEY KELLEY AND WHITE, GTC | Honor, Investor, Mortgage, securities fraud | Tagged: affidavit, Bank of America, Danielle Kelley, HAMP, Ponzi scheme, systematic lying | 74 Comments »

“fresh Start” Challenge by Tallahassee Attorney

Posted on April 2, 2013 by Neil Garfield

Editor’s Comment: Danielle Kelley is an excellent attorney in Tallahassee. Her article for Tallahassee.com highlights the myths that have led the courts and the legislature in the wrong direction. The principal takeaway is the indifference by government to the hardship and heartache of losing a home when they did nothing wrong (except believe what a bank representative told them from a script that was designed to get the homeowner in so deep they couldn’t get out.)

There is no “fresh start” in foreclosure. The homeowners and their families have usually been wiped out by unfortunately draining their savings and retirement funds to save the house only to find out that they failed to stop the foreclosure despite assurances to the contrary from the bank. The bank representatives are telling people to stop making payments in order to be considered for modification or any other form of relief. It’s a lie. And even where there are regulations in place making reference to being in delinquency, in many cases the only delinquency is caused by the bank who tells homeowners to stop paying their monthly mortgage payments.

While Wall Street and government attempt to mythologize the current mortgage crisis and there is a virtual blackout on foreclosure stories in mainstream media, people are suffering because of foreclosures and evictions where the loan was paid several times over but there is an insistence that the borrower not be credited with these payments. Hence the creditors get paid multiple times, the borrower gets nothing, the investors frequently receive nothing and like the old story, the dog runs away with the bone (dog=bank).

Danielle J. Kelley

Quick foreclosure is not a solution

By Danielle Kelley, Esq.

I am in foreclosure. Although I am not proud of that, I know my foreclosure is not my fault.

After dealing with a horrible predatory loan on our home, we were able to get a new fixed-rate, conventional loan. From the date of closing, our payments kept increasing little by little until they were so high something seemed wrong. When we called Bank of America to inquire, we were told we needed a loan modification. Because we were current on our payments, we were not showing an “inability to pay,” so we were told to make a partial payment and then apply for the modification. We did this. Then we were told we would have to stop payment altogether in order to qualify. Our partial payment was returned to us.

While still trying to understand what Bank of America wants from us now, and actively negotiating for a loan modification, we are in foreclosure.

I am an attorney and represent homeowners who are also going through the same horror. Why am I telling you? Because I fear the passage in the Legislature of HB 87 and SB 1666.

If these bills were to pass, a homeowner’s ability to fully contest extremely complex claims against large banks and servicers would be compromised. The expedited foreclosure process these bills intend would make it impossible for homeowners to adequately prepare their claims and defenses in time to present them in court. Given what so many of us have been through — in my case, being told to stop payment on my mortgage to qualify for a loan modification that Bank of America has no intention of giving me — it is criminal for the Legislature to even consider narrowing our rights.

By the time homeowners are served with a foreclosure complaint, most have been through many modification attempts. They have been told to craft “hardship letters” saying they cannot pay, and told, most times, to stop payment during the modification. When the modification is declined, the homeowners will be able to resume payments only if they pay a lump sum of all back payments, penalties and fees, including attorney’s fees in some cases.

[Danielle J. Kelley is a native of Tallahassee and practices law in foreclosure defense and real estate. Contact her at danielle@dkelleylaw.com.]

The bank has built its case against the homeowner years before the homeowner ever gets a day in court. Moreover, many homeowners are told to contact the bank’s attorneys instead of getting their own.

I’ve seen people sitting in a courtroom about to lose their home, and the only attorney they are talking to is the bank’s attorney.

An expedited foreclosure process only harms a homeowner who comes to court against a bank that has been building a case for years.

I testified at the House Justice Appropriations Subcommittee against the bill, and Rep. Debbie Mayfield, R-Vero Beach, a former banker who sits on the subcommittee, appeared shocked to hear my story.

What is shocking to me is that legislators do not understand why we have the largest nationwide consumer settlement ever against the five largest banks. What happened to me is exactly why Attorney General Pam Bondi received $8.4 million for Florida out of the settlement, but homeowners are still left to defend against the fraud and abuse in their individual cases.

At the Senate Banking and Insurance Committee hearing on the bill, I was physically ill listening to legislators talk about homeowners “getting on with their lives” and fresh starts, as if I should just walk away from my home. It is not about “fresh starts,” it is about those who are continuing to live through this nightmare. It is not about cases and statistics, it is about homes. I left the hearing without testifying, since I knew my story would fall on deaf ears. I was pleased to learn that my senator, Bill Montford, stood up for us and voted against SB 1666. However, the bill passed out of the committee.

As a citizen in foreclosure and an attorney representing others in distress, I am as concerned as anyone about ending our foreclosure crisis and getting our economy back on track.

Placing the burden of the solution on the backs of the already burdened homeowners is not the answer. We should fully fund the courts, allow the courts to process the foreclosure cases as they have been doing and give homeowners their day in court.

There is no easy fix, but homeowners should not have to have their homes ripped away from them when they follow bank instructions. In the end, expedition will not equal justice; it will only serve to cause more tragedy not only to the homeowners, but to the judicial system.

Filed under: CDO, CORRUPTION, Eviction, foreclosure, Investor, Mortgage, securities fraud | Tagged: Bill Montford, Danielle Kelley, HB 87, SB 1666 | 84 Comments »

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Neil Garfield, the author of this article, and Danielle Kelley, Esq. are partners in the law firm of Garfield, Gwaltney, Kelley and White (GGKW) based in Tallahassee with offices opening in Broward County and Dade County.

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The fundamental paradigm shift that is coming is that the banks are the deadbeats, not the borrowers. The borrowers are seeking to enforce a fair deal; the banks are seeking to steal and lie their way through the PONZI scheme we called “Securitization.” —Neil F Garfield, Livinglies.me

The fundamental paradigm shift that is coming is that the banks are the deadbeats, not the borrowers. The borrowers are seeking to enforce a fair deal; the banks are seeking to steal and lie their way through the PONZI scheme we called “Securitization.”

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About twice a month, the bank cleaned out its HAMP backlog in an operation called “blitz,” where it declined thousands of loan modification requests just because the documents were more than 60 months old, the court documents say.

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Quick foreclosure is not a solution

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