The Devil Is In the Details: Summary of Issues

Posted on December 27, 2013 by Neil Garfield

Editor’s note: in preparing a complex motion for the court in several related cases I ended up writing the following which I would like to share with my readers. As you can see, the issues that were once thought to be simple and susceptible to rocket docket determination are in fact complex civil cases involving issues that are anything but simple.

This is a guide and general information. DO NOT USE THIS IF YOU ARE NOT A LICENSED ATTORNEY. THESE ISSUES ARE BOTH PROCEDURALLY AND SUBSTANTIVELY ABOVE THE AVERAGE KNOWLEDGE OF A LAYMAN. CONSULT WITH AN ATTORNEY LICENSED IN THE GEOGRAPHICAL AREA IN WHICH THE PROPERTY IS LOCATED.

If you are seeking litigation support or referrals to attorneys or representation please call 520-405-1688.

SUMMARY OF ISSUES TO BE CONSIDERED

 

1)   Whether a self proclaimed or actual Trustee for a REMIC Trust is empowered to bring a foreclosure action or any action to enforce the note and mortgage contrary to the terms of the Trust document — i.e., the Pooling and Servicing Agreement (PSA) — which New York and Delaware law declare to be actions that are VOID not VOIDABLE; specifically if the Trust document names a different trustee or empowers only the servicer to bring enforcement actions against borrowers.

2)   Whether a Trustee or Servicer may initiate actions or take legal positions that are contrary to the interests of the Trust Beneficiaries — in this case creating a liability for the Trust Beneficiaries for receipt of overpayments that are not credited to the account receivable from the Defendant Borrowers by their agents (the servicer and the alleged Trustee) and the creation of liability to LaSalle Bank or the Trust by virtue of questionable changes in Trustees.

3)   Whether US Bank is the Plaintiff or should be allowed to claim that it is the Trustee for the Plaintiff Trust. Without Amendment to the Complaint, US Bank seeks to be substituted as Plaintiff in lieu of Bank of America, as successor by merger with LaSalle Bank, trustee for the Plaintiff Trust according to the Trust Document (the Pooling and Servicing Agreement) Section 8.09.

a)    A sub-issue to this is whether Bank of America is actually is the successor by merger to LaSalle Bank or if CitiMortgage is the successor to LaSalle Bank, as Trustee of the Plaintiff Trust — there being conflicting submissions on the SEC.gov website on which it appears that CitiMortgage is the actual party with ownership of ABN AMRO and therefore LaSalle Bank its subsidiary.

b)   In addition, whether opposing counsel, who claims to represent U.S. Bank may be deemed attorney for the Trust if U.S. Bank is not the Trustee for the Trust.

i)     Whether opposing counsel’s interests are adverse to its purported client or the Trust or the Trust beneficiaries, particularly with respect to their recent push for turnover of rents despite full payment to creditors through non stop servicer advances.

4)   Whether any Trustee for the Trust can bring any enforcement action for the debt including foreclosure, assignment of rents or any other relief.

5)   Whether the documentation of a loan at the base of the tree of the assignments and transfers refers to any actual transaction in which the Payee on the note and the Mortgagee on the Mortgage.

a)    Or, as is alleged by Defendants, if the actual transaction occurred when a wire transfer was received by the closing agent at the loan closing with Defendant Borrowers from an entity that was a stranger to the documentation executed by Defendant Borrowers.

b)   Whether the debt arose by virtue of the receipt of money from a creditor or if it arose by execution of documentation, or both, resulting in double liability for a single loan and double payment.

6)   Whether the assignment of mortgage is void on its face as a fabrication because it refers to an event that occurred long after the date shown on the assignment.

7)   Whether the non-stop servicer advances in all of the cases involving these Defendants and U.S. Bank negates the default or the allegation of default by the Trust beneficiaries, the Trust or the Trustee, regardless of the identity of the Trustee.

a)    Whether a DEFAULT exists or ever existed where non stop servicer advances have been paid in full.

b)   Whether the creditor, under the debt obligation of the Defendant borrowers can be allowed to receive more than the amount due as principal , interest and expenses. In this case borrower payments, non stop servicer advances, insurance, credit default swap proceeds and other payments by co-obligors who paid without subrogation or expectation of receiving refunds from the Trust Beneficiaries.

c)    Whether a new debt arises by operation of law as a result of receipt of third party defendants in which a claim might be made by the party who advanced payment to the creditor, resulting in a decrease the account receivable and a corresponding decrease in the borrower’s account (loan) payable.

i)     Whether the new debt is secured by the recorded mortgage that the Plaintiff relies upon without the borrower executing a security instrument in which the real property is pledged as collateral for the advances by third parties.

8)   Whether turnover of rents can relate back to the original default, or default letter, effectively creating a final judgment for damages before evidence is in the court record.

9)   Whether the requirements of a demand letter to Defendants for turnover of rents can be waived by the trial Court, contrary to Florida Statutes.

a)    Whether equity demands that the turnover demand be denied in view of the fact that the actual creditors — the Trust Beneficiaries of the alleged Trust were paid in full up to and including the present time.

b)   Whether, as argued by opposing counsel, the notice of default letter sent to Defendant Borrowers is an acceptable substitute to a demand letter for turnover of the rents if the letter did not mention turnover of rents.

c)    Whether the notice of default letter and acceleration was valid or accurate in view of the servicer non-stop advances and receipt of other third party payments reducing the account receivable of the Trust beneficiaries (creditors).

i)     Whether there was a difference between the account status shown by the Servicer (chase and now SPS) and the account status actually shown by the creditor — the Trust Beneficiaries who were clearly paid in full.

10)         Whether the Plaintiff Trust waived the DUE ON SALE provision in the alleged Mortgage.

a)    Whether the Plaintiff can rely upon the due on sale provision in the mortgage to allege default without amendment to their pleadings.

11)         Whether sanctions should apply against opposing counsel for failure to disclose essential facts relating to the security of the alleged creditor.

Whether this (these cases) case should be treated off the “rocket docket” for foreclosures and transferred to general civil litigation for complex issues

Filed under: CASES, CORRUPTION, Eviction, evidence, expert witness, Fannie MAe, foreclosure, foreclosure mill, GARFIELD KELLEY AND WHITE, investment banking, Investor, MODIFICATION, Mortgage, Motions, Pleading, securities fraud, Servicer, TRUST BENEFICIARIES | Tagged: , , , , , , , , , , , , , , , , , , , | 3 Comments »

Keiser’s Forensic Analysis Workshop

Posted on March 4, 2010 by Neil Garfield

You must remember the judiciary moves slowly is assimilating new facts or patterns in the marketplace. In order to break through a Judge’s preconception of the mortgage origination process, you need to have something that is clear in is presentation of facts, and obvious in its impact.

The reasons for having analysis performed by an independent third party is that it transforms empty argument into a question of fact. Anything that leads to a questions of fact gives you leverage in and out of court. In court, it allows you to credibly raise the issues so that discovery and an evidentiary hearing will allow your claims to be heard on the merits. No “audit” or analysis is PROOF or EVIDENCE unto itself. What it should do is give you something to hold in your had while talking to the Court, and which clearly contests the “facts” that the pretender lender is trying to have the Court assume (which is why objections, motion practice, discovery and evidentiary hearings are so important).

Lots of mistakes are being made on both sides of the mortgage crisis. Brad, in hosting this new forensic analysis workshop, seeks to help analysts avoid the usual pitfalls, recognize the issues that an expert or lawyer or homeowner may be required to present, and work toward providing the litigation support required to achieve a successful result.

There are a number of good workshops out there that can help forensic auditors, lawyers, experts and even lay people understand how to proceed when they wish to challenge some company that claims to be your lender or servicer. Max Gardner’s boot-camps are very good venues for understanding securitized loans, applying law and procedure to the challenge and coming out with good results. April Charney, who is giving a workshop soon in California is adding non-judicial states to the scope of her workshops for the first time. And Brad Keiser, who has been doing the survey workshops with me for a year and a half is now offering an important, even essential, workshop that drills down on forensic analysis of mortgages and foreclosure proceedings.

Brad, being a former banker himself with one of the nations largest banks, has performed virtually all of the research I use in connection with TILA, RESPA etc. A long-time friend, he has worked with me to bring LivingLies from two dimensional blog postings to three dimensional live presentations.

The output is what is important in any analysis of your mortgage or foreclosure situation. It doesn’t matter what work a company says they will do, even if they completed their engagement. The question is whether it is useful in producing an actual result. That is where the intersection of what is working in court and what is not comes into play. The issue here is knowing what you have, planning your strategy, and choosing the right procedures, lawyers, experts etc. in achieving a well-defined goal. Brad and I have carefully analyzed the forensic process and found a number of things that rise to the level of prime importance:

  1. Finding out whether there are patent violations of existing federal and state lending laws that can be identified for further action by the homeowner or their attorney. This among other things involves an examination of the Annual Percentage rate disclosed on the Good faith estimate, the timing of the good faith estimate, the presence of the traditional (but illegal) yield spread premium), affordability and other factors including discrepancies between the GFE and the HUD settlement statement. A key component of this part of the analysis often overlooked by “TILA Auditors” is an examination of the settlement transaction where the alleged loan was closed revealing discrepancies between the beneficiaries of the mortgage, the note, the title insurance, the mortgage insurance etc. and the use of “nominees” instead of naming the real parties in interest, which is evidence of a table-funded loan.
  2. Revealing the latent violations of lending laws and regulations caused by securitization of loans. Here is where the second and much larger yield spread premium appears and must be estimated by your expert or analyst using tables prepared by an expert. In addition. it reveals discrepancies in signatures, dates and parties in connection with fabricated or forged assignments used to justify the foreclosure by a party not named as lender or beneficiary.
  3. Determining whether there are refunds or rebates due back to the homeowner/borrower either from the original named lender or some other party in a securitization chain.
  4. Discovering facts that show a pattern of deceptive or predatory lending.
  5. Researching the loan to determine the record title chain, the probable securitization of your loan, and providing you with the right questions to ask as tot he identity of the creditor and demanding an accounting from the creditor, as opposed to simply a servicer that serves as a buffer between the debtor (homeowner) and the creditor (Investor owning mortgage backed securities).
  6. Providing adequate information and forms to the lawyer or client on sending out a Qualified Written Request, Debt Validation Letter or Demand Letter.
  7. Highlighting the most significant issues in your loan for the expert to use in preparing a declaration or the lawyer to use in filing a lawsuit, a petition for temporary injunction, or a bankruptcy petition.

As I have repeatedly stated on these pages, a TILA Audit is a start but it usually won’t produce the result of a modified loan that is acceptable tot he homeowner or the nullification of the obligation, note or mortgage.

Before securitization of mortgage loans, the process of examining loan transactions was fairly straight forward and fairly simple. With securitization the analysis requires a much higher level of sophistication that enables the lawyer or homeowner to present or proffer evidence of wrong-doing or improper procedures accounting or disclosure on the part of the securitization chain that produced your loan from the investment in mortgage backed bonds by investors.

Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud | Tagged: , , , , , , , , , , , , , , , , , , , , , | 2 Comments »

Evidence: Produce the Witness

Posted on January 11, 2010 by Neil Garfield

In practice, this surfaces as a demand letter, affidavit or assignment or other document used by the pretender lender to establish its case. The path to defeat of the homeowner is paved when they fail to object to the introduction of these documents as anything other than an allegation that raises a question of fact. If you make the objection then you are conforming to the rules of evidence and enforcing your rights under the the U.S. Constitution. By directing the Judge’s attention to the question of fact, you then open the door to discovery and an evidentiary hearing. Without that, the allegations of the pretender lender will be taken as true and you are just about done.
The 6th Amendment, part of the Bill of Rights, guarantees people the right to confront witnesses who are offering “evidence” against them. This basic right has often been eroded by bad decisions by Judges who do not understand the rules of evidence — but more often affidavits, reports and other documents are often admitted into evidence because of the failure of the opposing party to object. In a great many cases, “evidence” becomes what is allowed by the failure of the party to understand their right to cross examine a witness in live testimony.
RELEVANCE: Neither the computer generated reports nor the affidavits or correspondence of the pretender lender is evidence unless you fail to object to it for (a) lack of foundation and (b) violation of your right to confront the PERSON who entered the data or information written or the PERSON who prepared the document. The same holds true for your forensic report. You can use it to raise a question of fact, but when it comes down to actually proving your case the report is useless without the live testimony of the forensic analyst and the live testimony of an expert who explains what it means.

In practice, this surfaces as a demand letter, affidavit or assignment or other document used by the pretender lender to establish its case. The path to defeat of the homeowner is paved when they fail to object to the introduction of these documents as anything other than an allegation that raises a question of fact. If you make the objection then you are conforming to the rules of evidence and enforcing your rights under the the U.S. Constitution. By directing the Judge’s attention to the question of fact, you then open the door to discovery and an evidentiary hearing. Without that, the allegations of the pretender lender will be taken as true and you are just about done.
There are exceptions to allowing a document in as evidence to prove the truth of the matter asserted but they are limited exceptions and contain numerous conditions, mostly in the form of providing a foundation for the introduction of the document, the reason for the absence of the witness and whether the witness is actually available to testify and if not, why not.
The parallel tactic used by pretender lenders is to produce a witness that is a shill for the real thing. This comes down to the conventional definition of competency of a witness to testify. In nearly all cases, the witness the pretender lenders offers has no direct personal knowledge of anything contained in the written document, has been recently hired, is not in the department that would have any knowledge and/or is not the true custodian of records who could identify where the data came from, who provided it, when it was created, and the method by which the document is created. In nearly all cases, these documents are fabricated in “service mills” which might actually be in the office of the attorney for the pretender lender where an employee of the law firm or service mill executes the affidavit or document as “limited signing officer,” “assistant secretary,” etc. MERS documents are virtually always executed by people with no connection with MERS and where MERS has no knowledge of the existence of the person nor that they executed a document in the name of MERS.
A competent witness is ONLY a live person in court who has PERSONAL KNOWLEDGE and personally remembers the transaction(s) about which they are offering testimony. The pretender lenders merely grab someone and tell them what to say in court like “I am an authorized representative of Pretender Lender and I am familiar with the facts regarding this loan.” Your objection should be accompanied by a request to voir dire the witness. Who is your employer. what is your job? where do you work? When were you employed? Did you get information about this transaction from documents you were given or that you found? Did you get your information from another person?
Test them on conflicts of the numbers shown in different documents. Ask them if they have personal knowledge of the two documents. You probably will find that they have no personal knowledge of one of them. Ask them to explain the difference if they manage to qualify the witness, as it lessens their credibility to have conflicting demands from the same party.
Establish that the witness doesn’t really know anything on their own because they had nothing to do with the origination or servicing of the loan and nothing to do with the securitization of the loan.
On the securitization of the loan sometimes they will bring in a person who has some connection with the loan from the servicing company. Establish that the servicing company is a bookkeeper and conduit for payments and not the creditor (the obligation, as evidenced by the note is not owed to the witness or their employer).
After establishing that they otherwise do have personal knowledge not gleaned from someone else (hearsay), you ask them if they have any access to the the records of the other parties involved in the securitization of this loan.
Then you establish that therefore they only have the records of a specific period of time involving transactions between the borrower and a particular servicer and NOT the full record of all transactions that occurred as credit or debits to the obligation created when the loan was originated. So they don’t know whether the obligation was transferred or sold or paid by federal bailout or insurance. They don’t know the identity of the creditor.
As soon as they admit lack of knowledge you object to the witness as not having the required personal knowledge and personal recollection of the entire transaction or even parts of it. You therefore object to the the document or report or affidavit they are offering as lacking proper foudnation and as violating your right to cross examine witnesses offering to testify against you.
While the 6th Amendment is often cited just in criminal cases, it is the basis for the rules of evidence in every state in the union. The purpose is not some legal trick. It is to provide the court with some assurance that the information being offered to the court has the required amount of credibility to be useful in finding the facts of the case.
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New York Times
January 11, 2010
Editorial

The Right to Confront Witnesses

Just last June, the Supreme Court decided that when prosecutors rely on lab reports they must call the experts who prepared them to testify. It was an important ruling, based on a defendant’s right to be confronted with witnesses against him, but the court is about to revisit it. The justices should reaffirm that the Sixth Amendment requires prosecutors to call the lab analysts whose work they rely on.

On Monday, the court hears arguments in Briscoe v. Virginia, in which a man was convicted on drug charges. The prosecutors relied on certificates prepared by forensic analysts to prove that the substance seized was cocaine. They did not call the analysts as witnesses.

The defendant should be able to get his conviction overturned based on Melendez-Diaz v. Massachusetts, the ruling from last June, which held, by a 5-to-4 vote, that using lab reports without calling the analysts violates the Sixth Amendment.

The amendment’s confrontation clause guarantees defendants the right to see prosecution witnesses in person and to cross-examine them, unless they are truly unavailable. In cases that involve drugs, and many that do not, lab analysts’ work can be a critical part of the prosecution’s case. If the prosecutors want to use the reports, they should be required to call the analysts as witnesses.

Critics of the ruling last June argue that it imposes too great a burden and excessive costs on prosecutors. But in states where analysts have to testify, the burden is easily manageable. Ohio’s 14 forensic scientists appeared in 123 drug cases in 2008, less than one appearance each per month.

It is not clear why the Supreme Court is rushing to reconsider this issue. There are some differences in the rules on witnesses between Virginia and Massachusetts. But it may be that with Justice Sonia Sotomayor having replaced Justice David Souter, the dissenters believe they have a fifth vote to erode or undo last June’s ruling.

As a former assistant district attorney, some court analysts argue, she may be more sympathetic to the burden on prosecutors. As a circuit court judge, Justice Sotomayor did often rule for the government in criminal cases, but making predictions of this sort is perilous. Justice Antonin Scalia, one of the court’s most conservative members, wrote the majority opinion in Melendez-Diaz.

If the court changes the rule, it would be a significant setback for civil liberties, and not just in cases involving lab evidence. Prosecutors might use the decision to justify offering all sorts of affidavits, videotaped statements and other evidence from absent witnesses.

Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud | Tagged: , , , , , , , , , , , , , , , , , | 10 Comments »

Foreclosure Defense: Rescission Letter, Demand Letter

Posted on May 29, 2008 by Neil Garfield

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New comment on your post #214 “Glossary: Mortgage Meltdown and Foreclosure”

Comment: A question on TILA and Non-judicial Foreclosure for anyone who knows the answer; Does a rescission letter that is timely and certifiably mailed to all appropriate parties (lender, assignee, servicer, trustee) prevent/nullify a pending non-judicial foreclosure sale? Would appreciate any information that may help find that answer.

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Complicated answer: technically speaking the purchase money first mortgage is exempted from TILA rescission but is still available under little FTC and common law fraud. This exemption was carved out after exhaustive lobbying by lenders.

The actual answer to your question is MAYBE. It depends upon the auctioneer’s assessment, but if you let everyone know at the auction that they are buying into a lawsuit our experience shows that generally speaking nobody bids — not even the lender.

Now if you accompany your letetr with the TILA audit and an attorney’s demand letter, you are in a stronger position.

The TILA/Mortgage audit is the key and most people don’t know how to do it even though they are advertising otherwise on fancy websites etc. We have two on our site that we are currently referring to and we are looking for others that are actually competent and not fly by night take your money and run places.

And if you are willing to file suit against the lender, there are a number of ways to prevent the sale and turn the tables on the lender. There are even strategies that are outlined in this blog that show how in certain cases the borrower walked away with the house free and clear of the mortgage and note.

Here is some verbiage that has been used, but frankly without an attorney to deal with the lender, your position is not going to be taken as seriously as it would with a competent attorney who understands the complex issues:

Dear Sir or Madam: Please accept this letter on behalf of the above-named property owner and borrower. While this letter is written in part for purposes of settlement and compromise it is already a demand letter which can and will be used as necessary. It is therefore not a confidential communication protected under the rules of settlement disclosures and correspondence.

You have previously been presented with proper notices of deceptive lending practices in the closing on the above-referenced loans. Said notices were accompanied by Proposed Resolutions under the Federal Truth in Lending Act and the Real Estate Settlement Procedures Act.

Notwithstanding the above, your agents have threatened foreclosure, sale and eviction of the homeowner/borrower, despite the facts that the borrower is not in default, the lender and trustee are ignorant of any facts to state affirmatively that the borrower is or is not in default, the lender is in default of its obligations under applicable Federal and State laws, the lender at the closing the servicing agent are not the real parties in interest (i.e., they lack standing to proceed to judicial or non-judicial sale), the trustee and lender lack authority to proceed but have intentionally and fraudulently filed papers and posted notices as though the authority was present.

WE HEREWITH DEMAND THE NAMES AND CONTACT INFORMATION ALONG WITH A DESCRIPTION OF THE SECURITY SOLD, THE ASSIGNMENT MADE, AGREEMENTS SIGNED, BETWEEN ALL OF THE MORTGAGE BROKERS, REAL ESTATE BROKERS, DEVELOPERS, APPRAISERS, MORTGAGE AGGREGATORS, INVESTMENT BANKERS, RETAIL OR OTHER SELLER OF SECURITIES AND THE INVESTORS WHO PURCHASED THE SECURITIES.

Based upon information received from the experts in this case and based upon our own factual and legal investigation there appear to be claims in addition to the claims stated in prior correspondence, which claims based upon the following summary, are in most cases not exclusive and therefore the demands stated in this letter and prior correspondence you have received, which is incorporated herein as specifically as if set forth at length hereat, should all be considered cumulative.

Usury: As a result of the artificially inflated “fair market values” utilized by LENDER et al, its agents, servants and/or employees, to induce the borrower to sign the mortgage documents and purchase the property, the effective yield now vastly exceeds the legal lending limit in the State of Florida, if the borrower pays in accordance with the mortgage and note indentures. A quick review of the usury law in Florida will reveal that while it has been relaxed somewhat to accommodate predatory lending through credit cards and payday loans, it remains somewhat stringent in connection with other loans and allows the borrower to to cancel the loan and collect damages. Hence, just for the record, in the unlikely event we do not settle this case, demand is herewith made for full satisfaction of the mortgage and note plus three times the value of the note in damages, plus attorney fees and costs of 10% of the value of the of the claim which is the principal of the note plus three times the principal of the note.

Security Violation: The subject mortgage was part of a purchase transaction in which the property was sold with promises and assurances that the value would go up, the rental value would assure a return on investment, and that the investor need not perform any work, since the maintenance and other factors would be done by third parties — the Condominium Association, the real estate broker, the management office etc. This constitutes, despite the appearance of other “uses” the sale of a security under the Securities Act of 1933 and other applicable Federal and state Securities laws. The sale of this security was improper, lacking disclosure, rights to rescind under the securities laws, and lacking in disclosure as to the true nature of the transaction and the true position of the parties, including but not limited to the fact that the “lender” was in actuality acting as a conduit, removing the essential aspect of risk-sharing in the normal lender-borrower relationship, that the risk of loss was not only real but unavoidable because of the artificially inflated values, and that the Buyer should consider the purchase to be a high-risk investment with the possibility of total loss. Since the sale of THIS security was part of larger plan to sell securities to “qualified” investors using false ratings and false assurances of insurance, together with a promised rate of return in excess of the revenue produced by the underlying efforts, the sale of THIS security was part of larger Ponzi scheme wherein securities were sold at both ends of the spectrum of the supplier of capital (the investor) and the consumer of the capital (the borrower and the seller of the property). Since compensation arising from the transaction with this borrower was not disclosed to the borrower, the transaction lacked proper disclosure and is subject to rescission, compensatory and punitive damages. Hence, just for the record, in the unlikely event we do not settle this case, demand is herewith made for full satisfaction of the mortgage and note plus three times the value of the note in damages, plus attorney fees of 10% of the value of the of the claim which is the principal of the note plus three times the principal of the note.

Common Law Fraud in the Inducement and Fraud in the execution of the closing documents including but not limited to the settlement statement, the mortgage and note. Hence, just for the record, in the unlikely event we do not settle this case, demand is herewith made for full satisfaction of the mortgage and note plus three times the value of the note in damages, plus punitive and/or exemplary damages plus attorney fees of 10% of the value of the of the claim which is the principal of the note plus three times the principal of the note.

Little FTC Act (Florida): while the transaction clearly involves interstate commerce, Florida law provides for much the same remedies as described above for unfair and deceptive lending or business practices. Hence, just for the record, in the unlikely event we do not settle this case, demand is herewith made for full satisfaction of the mortgage and note plus three times the value of the note in damages, plus punitive and/or exemplary damages plus attorney fees of 10% of the value of the of the claim which is the principal of the note plus three times the principal of the note.

TILA claims have been summarized in prior correspondence. Because the transaction is not a pure first mortgage residential transaction, the TILA exception for rescission does not apply and we therefore demand rescission in addition to the above-stated claims. Hence, just for the record, in the unlikely event we do not settle this case, demand is herewith made for full satisfaction of the mortgage and note plus three times the value of the note in damages, plus punitive and/or exemplary damages plus attorney fees of 10% of the value of the of the claim which is the principal of the note plus three times the principal of the note.

RESPA: You have failed to properly respond to the claims under the act are are currently in violation. Hence, just for the record, in the unlikely event we do not settle this case, demand is herewith made for full satisfaction of the mortgage and note plus three times the value of the note in damages, plus punitive and/or exemplary damages plus attorney fees of 10% of the value of the of the claim which is the principal of the note plus three times the principal of the note.

RICO: As stated above there were multiple parties in multiple states in a scheme spanning virtually all continents in which false, misleading and non-conforming statements were made to investors and borrowers alike, wherein LENDER et al acted in concert with other ”lenders” and investment bankers to artificially create the appearance of higher market values for property and the false appearance of trends that did not in actuality exist, but for the “free money” (secured under false pretenses) pumped into a financial system and real estate market consisting of false and deceptive high pressure sales tactics whose objectives were to get the borrower’s signature without regard for the consequences to either the borrower or the investor. Hence, just for the record, in the unlikely event we do not settle this case, demand is herewith made for full satisfaction of the mortgage and note plus three times the value of the note in damages, plus punitive and/or exemplary damages plus attorney fees of 10% of the value of the of the claim which is the principal of the note plus three times the principal of the note.

Under Federal Law, you are a provider of financial services and/or products to a borrower whom you or your agents, predecessors, or successors intentionally deceived at the closing of the loan, conspired to misrepresent the proper appraised value of the property, and have now ignored your basic responsibilities of presenting a response to the notices and correspondence already on file with you and regulatory agencies, who have been informed of your illegal and improper conduct.

Notwithstanding the above, the borrowers are now faced with the apparent prospect of losing their house, their credit rating, and have been required to seek the services of legal counsel to forestall the loss, for which services demand is herewith made under the terms of the mortgage and all applicable Federal (TILA, RESPA, RICO) and State Law..

YOUR CONDUCT, IF YOU PROCEED, CONSTITUTES CRIMINAL THEFT AND CIVIL THEFT OF THE REAL PROPERTY SUBJECT TO THE MORTGAGE, NOTE AND PROCEEDINGS YOU HAVE POSTED AND FILED. Accordingly your position, in the absence of any authority to do so under law is invalid and illegal. ON BEHALF OF THE BORROWER/HOMEOWNER DEMAND IS HEREWITH MADE THAT ALL EFFORTS AT SALE, EVICTION OR FORECLOSURE BE STOPPED IMMEDIATELY AS THE PROPERTY IS SCHEDULED FOR EVICTION/SALE WITHIN A FEW DAYS.

Any further attempts at collection will result in further action taken on behalf of the borrowers for all remedies available in law and equity in both administrative proceedings, and judicial forums possessing competent jurisdiction, which will seek damages for unfair trade trade practices, treble damages under applicable law for RICO, FTC and little FTC violations, consequential damages and refunds, attorney fees, court costs, and all other available remedies in law or equity.

PLEASE GOVERN YOURSELVES ACCORDINGLY!!!

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Filed under: bubble, CDO, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage | Tagged: , , , , , , , , , , | 139 Comments »

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