Holder in Due Course and Due Process

Posted on August 29, 2014 by Neil Garfield

The first thing I want to do is add to my previous comments. I believe there is an implicit admission of failure of consideration in any case where a holder in due course is not identified. In addition, where a REMIC trust not alleged or asserted to be a holder in due course it means by definition that they did not purchase the loan for value in good faith without knowledge of the defense of the “borrower” (maker of the note).

 

I believe that what this means is that any court that enters an order or judgment against the homeowner, who was the maker of the note, is implicitly entering an order or judgment against the trust beneficiaries and the trust, resulting in a loss of favorable tax status and just as importantly an economic loss directly resulting from being forced to accept a loan that is presumed to be in default. The failure of the trust to pay for the loan and receive delivery of the loan documents to the depositor leaves one with the question of “what is the relationship of the Trust to the subject loan?”

 

The same logic would apply regardless of whether the citizens trust is in dispute or not. There is circular logic in the argument of the bank. On the one hand they want to be seen as a holder with rights to enforce but on the other hand they don’t want to disclose, alleged, assert, or prove the foundation or source of the right to enforce.

 

Based upon the provisions and restrictions of the pooling and servicing agreement, the investors who purchased mortgage backed securities issued by the Trust were intended to be the collective creditor for loans that were accepted into the Trust. The acceptance is stated in the pooling and servicing agreement and the exhibits to the pooling and servicing agreement should have the loans that were accepted. After the cutoff period, the only way a loan could be accepted was by acceptance by the Trustee. And the only way there could be acceptance by the trustee would be upon receipt of an opinion letter from counsel for the trust stating that they would be no adverse effect on the beneficiaries. The adverse effects are clear. One is the loss of advantageous tax treatment and the other is the economic loss from accepting a loan does not conform to the types of loans that are acceptable to the trust, as per the terms of the pooling and servicing agreement.

 

Pooling and servicing agreement is the trust instrument. Since the pooling and servicing agreement is governed under the laws of the state of New York, a violation of the restrictions and provisions of the trust is void, not voidable. The acceptance of a loan that is in default is not possible. The acceptance of any transaction that would violate the terms of the Internal Revenue Code sections on REMIC Trusts is not possible.

 

Thus the hidden issue here is that the real parties in interest who will be affected by the outcome of the litigation have not been given any notice of the pendency of the action. And the provisions of the pooling and servicing agreement prevent the trust beneficiaries from knowing or even inquiring about the status of any particular loan.

 

The confusion comes from the fact that the investors are indeed the creditors in practice. But because the trust was actually not utilized in the transaction they are direct creditors whose money was used to fund origination or acquisition of loans, contrary to the subscription agreement which promised that their money would be given to the issuer of the mortgage-backed securities that were being issued and purchased by the investors.

 

It seems obvious that the trust cannot be held to have acted in bad faith. It is equally obvious that the trust would have no knowledge of the borrower’s defenses. As the only element left for a holder in due course is the purchase for value. Since there is no allegation that the trust is a holder in due course, the bank is admitting that the trust never purchased the loan. It may be presumed that the trust might have originated or purchased the loan if it had received the proceeds of sale of the mortgage-backed securities issued by the trust. The logical assumption is that the trust never received those proceeds. The logical assumption is that the underwriter used the funds in ways that were never contemplated by the investors.

 

A further logical assumption would be that the underwriter kept the funds in its own name or in the accounts of entities controlled by the underwriter and is operating contrary to the interests of the investors.

 

The logical conclusion would be that the underwriter conducted a series of disguised sales of the same loan to multiple parties. Since the mortgage-backed securities were issued in the name of the underwriter as nominee (“street name”) they were able to trade on the loan and securities in their own name and receive the benefits without accounting to the investors or the borrower. The allocation of third-party funds (servicers, insurers, guarantors etc.) cannot be determined except by reference to books and records in the exclusive care, custody and control of the parties involved in the claims of securitization. It may be fairly concluded that such claims are false.

 

Now I will address the issues presented as to constitutional disposition of the case. It has long been judicial doctrine to avoid constitutional issues if the case can otherwise be decided on other grounds. It is also true that equal protection has proved more difficult than due process as the basis of any relief.

 

The problem in foreclosure litigation is that it must in my opinion include a claim for both due process and equal protection. The claim for lack of due process is not technically true. The true claim, in my opinion, would be lack of sufficient due process.

 

In actuality due process varies from state to state and even from county to county. If a party has been heard in court and presented arguments, then it may be fairly concluded that some due process was provided to that party. If presumptions arise against that party that give rise to orders and judgments that are contrary to the actual facts, a claim for denial of due process could be present. But the better claim, in my opinion, is to look at the state appellate decisions to show that more due process is allowed to debtors who are not involved in foreclosure litigation. I think this is a more accurate description of the actual situation.

 

The due process argument is simple: presumptions are used as shorthand for the facts. In this case the facts don’t match up with the presumptions. The only question is whose burden of proof is it. If the allegation was that a holder in due course was known and identified there is no doubt that anything the borrower had to say would be an affirmative defense, and thus after a prima facie case was made showing payment in good faith without knowledge of borrower’s defenses, the burden would shift to the alleged borrower who definitely was the maker of the note even if they were not the borrower in a loan transaction with the designated “lender.”

 

But, this is not the case at bar. The foreclosing party is asserting “holder” status, with dubious rights to enforce that are denied by the maker/homeowner. Absent is any allegation of status of a holder in due course, and of course noticeably absent is any allegation of the expenditure of funds or other consideration in exchange for delivery of the loan to the Depository designated in the PSA to receive the delivery. Thus neither the purchase nor the delivery are alleged. While being a holder might raise the presumption of being a holder with rights to enforce, it does not remove the burden of proving that said rights to enforce have been delivered from a party who definitely had the right to enforce — i.e., the holder in due course or “owner” of the loan.

 

The absence of the HDC allegation is an admission that the Trust did not buy the loan. The fact that the Trust did not buy the loan means that it is not and cannot be in the pool owned by the trust, with fractional shares owned by the investors who bought the MBS issued by the Trust. And that can ONLY mean that the right to enforce cannot be delivered or conveyed by the Trust because the Trust never received delivery and never had a right to receive delivery because they didn’t pay for the loan.

 

Thus on the face of the pleading it is up to the foreclosing party to prove its right to enforce the note by showing the identity of the party for whom the loan is being enforced, the fact that the party for whom it is being enforced owned the loan at the time the right to enforce was granted, the current balance ON THE BOOKS OF THE CREDITOR, the presence of a default ON THE BOOKS OF THE CREDITOR, and that the loan is still owned by the party who owns the loan (i.e., the HDC). Hence the burden is on the foreclosing party to reach the point where the borrower assumes the burden of refuting the case against him or her. The maker of the note is in an exclusive position of being shut out of the facts that would either corroborate or refute this narrative.

 

If the burden is placed on the borrower, it would be the equivalent of a murder on video in possession of the murderer but the State and the heirs of the victim are charged with proving the case without the video. The facts suggest here that the Trust paid nothing because it had no money to pay for a loan. The facts suggest that if it were otherwise, the Trust would have paid for the loan and be most anxious to plead HDC status. And thus the facts show that the foreclosing party cannot claim the right to enforce based upon a presumption without violating the due process rights of the homeowners here. Only the foreclosing party and its co-venturers have in their care, custody and control, the necessary information to refute or prove the facts behind the presumptions they are attempting to raise.

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Filed under: AMGAR, CASES, CORRUPTION, escrow agent, evidence, foreclosure, foreclosure defenses, GTC | Honor, investment banking, Investor, MBS TRUSTEE, Mortgage, Motions, originator, Pleading, securities fraud, Servicer, STATUTES, Title, TRUST BENEFICIARIES, trustee | Tagged: , , , , , | 9 Comments »

Lawyers in Nonjudicial States Should File Constitutional Challenge

Posted on July 11, 2014 by Neil Garfield

I have been receiving increasingly urgent and frustrated messages from lawyers in nonjudicial cases. They are dismayed that the most basic components of proof are not required from “new” trustees on deeds of trust and “new” beneficiaries on the deed of trust, all self proclaimed and presumed valid even if the borrower denies it. Here is my answer:

I think what is missing is a plan for presentation. AND a decision about whether to go to Federal or State Court, or the California Supreme Court or even directly to the 9th Circuit if that is possible. Your case is really against the whole state of California (or whichever state the property is located) for violation of equal protection — debtors whose loans were mortgaged are treated differently from other debtors potentially including the debtors whose cars were mortgaged. Debtors who are subject to non judicial process are not given the same rights and procedures for debtors who are sued in judicial foreclosures. The normal process is if you want to allege a debt that requires a judicial judgment to enforce it, you are required to sue. That is why the decisions in and out of nonjudicial states say that due process requirements must be strictly construed. But in contested nonjudicial foreclosures, it is so loosely construed that complete strangers to the loan transaction can win the house. (See San Francisco study, Baltimore study etc.).
The argument that it is an agreement is cute but not right. Yes it is an agreement and anyone can contract with terms they agree to. But the exception is whether the contract violates law or public policy. Any agreement that violates public policy or to violate state or federal law is void. All Deeds of trust are arguably unconstitutional. But what will fly is a challenge to the nonjudicial scheme as to those cases where the borrower has made the proceeding a contested proceeding by denial of the essential elements of the nonjudicial procedure.

The “agreement” exists ONLY because of a statutory scheme that allows it and the only reason that statutory scheme exists is because of the original presumption behind such a scheme. If the foreclosure is truly uncontested, then it is hard to argue that the due process rights of the homeowner have been diminished. Thus repossession or forced sale at “auction” (another issue to be considered) might be the most expeditious way of handling it without clogging the courts.

But if the homeowner contests all aspects (including that he is a debtor and that the beneficiary is in fact the creditor) — the substitution of trustee, the naming of the beneficiary, the notice of default, the notice of sale etc. THEN the question becomes whether the “contract” (deed of trust) is valid and in particular whether the statutes allowing non judicial foreclosure are being APPLIED in an unconstitutional manner.

A non-creditor stranger who wins this procedure is allowed to place a “credit bid” at “auction” (which are really not conducted as public auctions) gets title to the property spending only the money required to pay for costs of filing.

Specifically, under normal circumstances, if the Trustee on the deed of trust was to receive a notice from the borrower that everything he has received from the wrong beneficiary has incorrect information and that the loan is not in default — the Trustee would ordinarily be required to file an interpleader action. The interpleader would say that he has a duty to both parties and there is a contested matter. The trustee asks for fees and costs because they have no vested interest in the outcome. Then the parties file pleadings about why they should get their way. But this doesn’t happen in practice. And the truth is, if the borrower is right, the substitution of trustee is invalid and the old trustee is still the trustee on the deed of trust. With that on record, how can anyone actually get clear title?

The problem in non-judicial states is that in practice (and in particular in the context of a contested loan which is subject to claims of successors or securitization) the self-declared beneficiary is not required to file substantive pleadings asking for specific relief. This would require the “beneficiary” to state that they are a beneficiary and to plead facts in support of that, attaching various exhibits, and that the loan is in default, and then they would be required to prove it. This would give them a prima facie case to prove. And the borrower would be required to answer the complaint of the beneficiary, file affirmative defenses and counterclaims. That is the very essence of due process in civil action and it should be strictly construed in foreclosures which consists of a forfeiture of the homestead — the virtual equivalent of the death penalty in civil litigation.

But in practice, the State of California doesn’t do any of that. In fact, they do the reverse. If a homeowner wishes to contest the substitution of trustee et al, the homeowner must file a complaint for TRO. And because they are the complainant, they are treated as having the burden of pleading and proof. This statutory scheme was conceived before multiple claims of successors and securitization were known. In practice it needs to be corrected by the courts until the legislature closes the loopholes that make the nonjudicial procedure unconstitutional in practice in certain types of cases.

This flips the rules of civil procedure and evidence on its head. In practice borrowers are not only required to plead that they deny the substitution of trustee et al was valid but to prove it — thus reversing the procedure that would be required in a judicial foreclosure, which is a second equal protection argument. Why are borrowers with other secured collateral (autos, e.g.) treated differently from borrowers with homes as collateral? Why are mortgagors treated differently in proceedings arising from non judicial process than in judicial process?

So the current practice requires the borrower to deny allegations that have not been filed and then prove that their denial is valid. That makes no sense and is an obvious denial of due process. The way the process works in practice is a stranger to any transaction with the borrower says “You owe me money” and then the borrower has the burden of saying “No I don’t” and then the defendant has the burden of pleading and proving that he doesn’t owe the money when he doesn’t know what the stranger is talking about. The only way the borrower can prevail on meritorious claims and defenses is by proving a negative. This is the opposite of due process.

This is why I have said since early 2008, that an action needs to be brought directly to the California Supreme Court or in Federal court or perhaps a special action to the 9th Circuit in which the application of the non judicial statutory scheme is challenged for those cases where the borrower denies the rights of substitution of trustee, denies the status of the self appointed new beneficiary and denies the default, denies the loan, etc. If the question is put to the court I feel confident that the decision will be in favor of borrowers. But any attempt to declare the non judicial scheme unconstitutional as a whole will fail.

Filed under: AMGAR, CORRUPTION, evidence, foreclosure, foreclosure defenses, GTC | Honor, investment banking, Investor, MODIFICATION, Mortgage, originator, Pleading, Servicer, STATUTES, Title, TRUST BENEFICIARIES, trustee | Tagged: , , | 25 Comments »

Weidner: Perjury is Acceptable Practice

Posted on May 1, 2014 by Neil Garfield

I am a fan of Matt Weidner. Like a breath of fresh air he understands the full implications of the false claims of securitization, the fraudulent foreclosures, the fraudulent reporting by banks to regulatory agencies and the false statements of financial condition they report to the SEC. Best of all he has maintained his sense of outrage at the banks, at the regulators, at law enforcement and the courts.

If you read his article, you can see why he is so angry. We know as lawyers what SHOULD be required in litigation. The fact that basic standards not being met in foreclosure litigation is a present problem for everyone who is involved or affected by the title and money issues; but it is also a future problem for all of us in the decisions, opinions and actions by the courts using a presumption that in the end it doesn’t make any difference how many ways the banks lied, cheated and stole money and title, the homeowner should be the one to bear the full burden of the problem.

This is why I am seriously entertaining a lawsuit in Federal court against the State of Florida for creating a new and wholly dysfunctional standard for the introduction of evidence and the burden of proof in foreclosure cases versus all other civil cases.

Weidner Takes Court System to Task

Filed under: CORRUPTION, discovery, escrow agent, evidence, Fannie MAe, foreclosure, foreclosure defenses, foreclosure mill, GTC | Honor, investment banking, Investor, MBS TRUSTEE, MODIFICATION, Mortgage, Pleading, securities fraud, Servicer, Title, TRUST BENEFICIARIES, trustee | Tagged: , , , | 40 Comments »

Rocket Dockets Undermine Faith In Judicial System

Posted on January 13, 2014 by Neil Garfield

Having now personally participated in the “expedited” processes that are now invoked in many states, it has become apparent that they are all deficient. Citizens who find themselves in the court system are fast losing faith that it is a rubber stamping system if they are accused of anything, and an obstacle to justice if they are seeking compensation for damages sustained as a result of breach of duty or obligation. My main observation is that in the civil dockets, equal protection is intentionally thrown out the window. If the opposing parties are on equal footing on a socio-economic scale, they might have a better chance of being “heard”, which is the essence of due process; but if there is a disparity in their perceived position in our society, they are more likely to see undue process — which is to say there is a presumption of guilt of the person on the lower scale and a presumption that the larger, higher party is more credible.

The credibility of banks and their attorneys ought to be greeted with a healthy dose of skepticism from the start. They have been accused of the most heinous economic crimes of their own doing and accessory to the crimes of others, found guilty in many cases by administrative agencies, and yet are treated with deference by judges in contested actions. So far they have paid collectively around $200 Billion in fines and settlements for conduct that is illegal, improper and outside the bounds of anything that could be called accepted industry standards. And that total represents what we know about. The amount of private settlements with the real parties to mortgage loans — homeowners and investors — is presumably much higher, but sealed under confidentiality.

The result of all this is that the banks are getting exactly what they want — keeping their ill-gotten gains and getting still more money called “profit” with their payments of fines, damages and penalties being pennies on the dollar. And they get an added bonus. Homeowners could avoid foreclosure if they raised the right defenses in the right way. But they are still giving up and leaving their keys on the kitchen counter. So far 15 Million people have been displaced by the foreclosure process. The very people who should be an army of revolt in the Courts are so intimidated by their opposition and what they see happening in the courts that they give up their largest investment, their lifestyle, their neighborhood because they are demoralized by a rigged legal system.

The rigging comes from the starting position that the origination and acquisition of loans actually occurred and therefore, no matter how you cut it, the homeowner is a borrower and the bank that sued them or put their home up for sale is accordingly entitled to do so, because the borrower stopped paying “the debt”. And in most cases that is true, the record of payments shows that the borrower was making payments to some Servicer and then stopped. The conclusion is that foreclosure is inevitable and that due process is due in name only and not in substance — even where the creditor named as such in the foreclosure process is receiving and accepting full payments from third parties, which is to say that homes are foreclosed and sold without any default on the books of the creditor.

My review of thousands of closings leads me to an avoidable, inescapable conclusion that the premise behind rocket dockets is untrue and can never be proven otherwise. The “debt” was the product of absolute fraud deserving of punitive damages and I intend to push that point until I get it — hopefully in a verdict instead of the thousands of sealed settlements I know about. The fraud started with theft of pension fund money by the investment banks and conversion of pension fund assets (the note and mortgage or deed of trust) by the investment banks.

The money loaned to homeowners was not originated or acquired by a REMIC trust. It came from stolen money — money that was never deposited into the trust account of the REMIC trust). The homeowner was further fraudulently induced to sign documents that converted investor money and documents to the broker dealers (investment banks). The property was never encumbered by a valid mortgage or the encumbrance became unenforceable when the loan was supposedly “acquired” in a fictitious transaction. The missing or late assignment of the “debt” was fictitious (note there was no debt because none of the parties had ever loaned any money nor paid any value to acquire it — but the real debt still existed without documentation and without any collateral). But the pile of paper, ever growing, is taken by judges to mean that the greater “weight” of the pile of meaningless documents creates a presumption in favor of the fraudulent allegations of the co-conspirators.

The answer is simple. The real debt was created by the lending of real money by a real lender to a real borrower. That is what the laws says and that is what common sense will tell you. THAT loan really happened, but because of the interference of the banks and servicers, the money of the lender investor (pension fund) and the paperwork documenting the transaction were hijacked. And that is why investors are getting settlements, agencies are getting verdicts, and the banks are continuing to pay hundreds of billions of dollars to protect TRILLIONS of dollars in ill-gotten gains.

Back in 2007 I proposed a way of settling this with amnesty for all and a share of the risk of loss by everyone. I will soon write about the doctrine of ASSUMPTION OF RISK which is a way of apportioning the real risks at the time of the defective mortgage originations and acquisitions. It is like the old doctrine of comparative negligence and it is good law aimed at a just result.

Assumption of Risk is an affirmative defense that arises by operation of law. It is based upon facts that show that the projected loss of the Plaintiff occurred, at least in part, because they impliedly agreed to assume the risk of loss upon certain events. For example, if the household income was $50,000 at the time was originated, then by most standards the maximum total payment of PITI should have been between $15,000 and $20,000 per year (or around $1250-$1600 per month). Any loan calling for payments above that level triggers the Assumption of Risk defense to the extent that the payment exceeds the level set by industry standards. The simple reality is that the “lender” (whether real or fictitious) accepted the probability that the loan would default at the moment the payment reset to an amount that was known to be impossible.

So if you look at those “pick a payment” or teaser payment loans, you can see how this would apply. The initial payment might have been $500 per month, but the payment eventually resets to $4,000 per month. Since the payment resets to an amount equal to the entire household income, it is impossible for the loan to succeed. And in fact the the new rules that went into effect this month from the Consumer Financial Protection Board are considered to be merely “back to basics” where such a loan would never be allowed. If we use Assumption of Risk as an affirmative defense, then the “blame” gets shared. A jury or judge would decide the comparative risks assumed or agreed by the parties regardless of what was in the written agreements. In this case the decision might be that the maximum payment to be assessed against the homeowner would be $1,600. The other $2,400 per month supposedly due under the note would be offset. The offset might result in the reformation or modification of the loan.

There are dozens of ways and hundreds of case scenarios in which assumption of risk could be used. Of course this would mean taking cases off the rocket docket and putting them into general civil or complex litigation dockets.

Filed under: CDO, CORRUPTION, evidence, expert witness, foreclosure, foreclosure defenses, foreclosure mill, GARFIELD KELLEY AND WHITE, investment banking, Investor, MBS TRUSTEE, MODIFICATION, Mortgage, Pleading, securities fraud, Servicer, TRUST BENEFICIARIES, trustee | Tagged: , , , , , , , | 98 Comments »

The Barbara Bratton Story: Judicial Hypocrisy

Posted on July 2, 2013 by Neil Garfield

Editor’s Note: There is something happening here and it is beginning to bother me more and more. A number of people have attempted to file papers in the county recorder’s office  in order to preserve their ownership rights to property that is either in foreclosure or has been the subject of a foreclosure sale. As I’ve stated on these pages most foreclosure sales are an illusion. Credit bid is submitted by a non-creditor  on behalf of other parties who are also non-creditors.

I might add that many pundits, writers, bloggers and lawyers have actually recommended to clients that they file any legally defensible document in opposition to a change in title or possession that would result from enforcement of fraudulent bank documents that are recorded in the public records. Our view is that the very existence of MERS is proof enough of fraudulent intent by the banks, their attorneys, the trustees on deeds of trust, and the other parties involved in the foreclosure and securitization scheme. Our view, like the oath that every attorney takes before becoming licensed, is that every effort should be made to advocate for the position of someone who is in an adversarial position. This does not include making false statements or recording false documents. But the issue becomes very cloudy when one side is allowed to file false documents and the other side is not.

The banks, and the law firms that represent the banks, have used their influence with local politicians and officials to snare these homeowners into a  legal nightmare. It is true that the documents that were filed are of dubious value, but that doesn’t mean that substantively they are wrong or false. The same could be said for the documents that were filed in support of the foreclosure and the foreclosure sale, except that we have ample evidence that many if not most of those documents are fabricated, probably forged, and refer to transactions that never occurred.

The hypocrisy here is beyond comprehension. We have proof and admissions by the banks that they fabricated, forged and illegally signed documents that were then recorded with the County Recorder’s office. The County recorder in Maricopa, Arizona for example, admits that the title records have been corrupted by the banks but for political reasons refuses to use her administrative powers to remove or tag the offending bank documents that were filed electronically from “trusted sources” which it turns out are only on the side of the banking industry including the banks themselves, their attorneys etc.

So we have, like the Bratton case, $250,000 bond placed on a person who filed a “Corrective deed” using her own name, and perhaps fabricating the existence of a twin sister. I agree. That was wrong. Any document that recites facts that are untrue should be corrected in the county records. Any document containing false statements that are known to be false at the time of the filing shows criminal intent. That is also unavoidably true.

The hypocrisy is that for the banks that filed documents containing false statements that were known to be false when the document was recorded, there not only is no action by law enforcement, but you have statements like: (1) the Arizona Attorney General who says that it is an acceptable shortcut and (2) Attorney general Holder who admitted that he didn’t prosecute because the banks were too big to fail.

I see novel defenses here (check with criminal lawyer in your jurisdiction before you use this):

  1. Estoppel and related constitutional argument of equal protection:  if law enforcement has decided not to prosecute a particular crime against a particular segment of the population then it should be stopped from enforcing that particular crime against any portion of the population. It might well be said that a homeowner could reasonably conclude that although a statute exists declaring a particular behavior to be a crime, that the state and local law enforcement agencies through a pattern of conduct have waived their right to enforce the statute. This is akin to an estoppel argument in civil litigation.  In criminal litigation the lack of prosecution by law enforcement as a matter of state policy can only be seen as a failure of due process and a violation of equal protection.
  2. Self Defense:  This might sound like a stretch and it probably is, but it is nonetheless accurate and applicable. If the banks are allowed to attempt to steal property through the use of fraudulent documents and the state policy prevents law enforcement from prosecuting those crimes, then out of necessity it may be said that a homeowner is exercising a right of self-defense by filing fraudulent documents in opposition to the fraudulent documents of the banks.

One way or the other needs issues are going to have to be addressed. If you look at each case on a strictly individual basis you will come to the conclusion that the homeowner did something wrong and should be punished. If you take a broader view, you will see that the homeowner did the only thing that was possible to stop the steamrolling banks from stealing her home. 

From Hopegirl2012 on Facebook
The powerful mortgage industry, that almost brought down the entire global economy with their casino mentality, continues to generate mountains of fraudulent documents to kick families out on the streets and steal years off of innocent citizens lives by keeping them entangled in ludicrous legal shenanigans.

Below is one of the latest stories of one woman, Barbara Bratton.

For Immediate Release
UPDATE: Barbara Bratton – Out On Bail                                                                    Defrauded Homeowner Jailed As Domestic Terrorist
Friday, June 28, 2013: San Bernardino, CA.
Homeowners’ rights advocate Barbara Bratton was released on bail early this morning after spending two weeks detained as a felon on charges of forgery, burglary and offering false documents for allegedly filing a corrective deed at the San Bernardino County Recorder’s office. Homeowners sometimes use corrective deeds as a preliminary step towards court recognition of systemic land title fraud on their home.
At a Wednesday hearing in San Bernardino Superior Court, Ms. Bratton’s attorneys argued that she showed no criminal intent, had no criminal record and posed no flight risk. Bail was reduced from $250,000 to $150,000. Terms require Ms. Bratton and her associates to stay away from her family home of 40 years as well as from the couple who wrongfully obtained the property from her.  A preliminary hearing is set for August.
Since 2008, Barbara Bratton, a native of the City of Ontario, CA. and life-long member of Mt. Zion Baptist Church in that city, has been engaged in a determined legal battle to win back her home. In an apparent attempt to intimidate her, the office of San Bernardino County District Attorney Michael Ramos accused Ms. Bratton of being a domestic terrorist associated with the “sovereign citizens” – a charge wholly without merit. She has never identified herself as a sovereign citizen, nor does she support their views.
At least six officers were assigned to assist the District Attorney’s office with the case. FBI agents were also present in court. Ms. Bratton’s arrest comes at a time of growing public dissatisfaction with domestic surveillance and other gross violations of civil and human rights since passage of the Patriot Act after 9/11.
Barbara Bratton believes in and is in full compliance with the U.S. Constitution, which is why she is fighting a strictly legal battle to win back her home. These trumped up charges appear to be a desperate attempt by county and city officials to divert public attention from the real crimes:  the powerful home mortgage industry [[1] ] that has generated mountains of fraudulent documents that continue to pollute property records in San Bernardino County – a county with some of the highest foreclosure rates in the country. Until land title fraud is weeded out from public property records, judges will continue to sanction illegal foreclosures and bankers and home loan servicers who nearly brought down the U.S. economy will go unpunished.
Look, they’ve tried to make this “too complicated” for most of us to understand for a reason. Let me break it down for you. But first I have to warn you. This is going to upset a lot of people, especially if you own a home, and most especially if you’ve recently lost it in foreclosure.
The titles to our homes are in our names and on the public record. When we “borrowed” our own money we gave a promissory note to the bank. The bank exchanged the deed and possession of the house for the promissory note. A simple exchange and an executed complete contract paid by Operation of Law. At that point you have a valid contract with consideration and exchange of valuable property.The bank then sells the promissory note, our value and property which we gave to the bank, into the open market in the form of a “security”. 70% of these securities are guaranteed or backed by Fannie Mae or Freddie Mac, or FHA, all government-sponsored enterprises (GSE’s). These GSE’s are now being held, insolvent (deemed unable to pay a debt), under the Federal Housing Finance Agency which has legal control over the BAIL OUT.So in other words, the bank took our value, sold it, decided that our value was a debt that we would never be able to pay and therefore worthless, and now our value is being held by the branch of our government – our employees – that gave even more of our value back to the banks in the bail outs.
When the bank sold the promissory note as a security, they were paid. The value of our promissory note was passed from the bank to the party that bought the security. But somehow, the banks still act like they are the ones with our promissory notes, and they proceed in making us pay 20+ years of mortgage payments for a value that they were already paid for, which they then deemed worthless after they were paid, not once – from the sale of the security – but twice, from the bailouts. The only party that could have any claim against our homes are the ones that bought our promissory notes from the bank. Yet the banks foreclose on us and throw families out of their homes out onto the street? Why? Because they need to be paid with our value a third time? How does that work??????
Honestly, I’m just stumped and at a loss here. Why are we not rioting over this? Why are we not outraged? How is it that women like Barbara Bratton and so many more of my close personal FRIENDS AND FAMILY are STILL going through this nonsense in court, when it is so OBVIOUSLY AND BLATENTLY WRONG????? INHUMANE!!!
Pass and share this story please. Help me help others to see the fraud here so that hopefully we can stand up to this and do the right thing! It’s time to take our value back from the casino lords!
Hope

 

Filed under: CDO, CORRUPTION, Eviction, foreclosure, GTC | Honor, Investor, Mortgage | Tagged: , , , , , , | 24 Comments »

California Bar Throws Baby Out with Bathwater

Posted on December 10, 2012 by Neil Garfield

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Hat tip to Darrel Blomberg who brought Mandelman’s article (below) to my attention.

Editor’s Analysis: In case you you ever wondered where that expression came from, it is pretty simple. It was once the practice to allow the man to bathe first, then the wife then the children in order of their age — all in the same tub without changing the water. By the end of this process the water was so murky that it was actually possible to throw the baby out with the bathwater.

The banks are attempting every maneuver to keep the mortgage and foreclosure process as murky as possible with considerable success, especially when it comes to modification where they are required to “consider” modifications although they are not required to accept a modification proposal.

The truth is they don’t consider it, they intentionally “lose” the paper work a half dozen times before they realize that the person is likely to escalate to litigation, and then they send a notice of rejection.

This rejection, few people realize, is subject to challenge if your allegation is that they rejected it without considering it. If your allegations contain proper pleading about the details you submitted with your modification proposal, including the proceeds to investor under your plan versus foreclosure, and it is an obvious no-brainer, I have evidence that such suits are settled very quickly usually along the same terms as those proposed in the original modification proposal from the borrower.

Now it is true that hundreds of companies have started claiming to do modifications without being able to spell it, and without any license that provides any evidence that they know anything about property rights, mortgages, notes,  lending, HARP, HAMP, TARP, TILA or RESPA and it is equally true that these bogus companies have compounded predatory lending with predatory services (fraud). So the states have enacted various laws that ignore the real problem and did what the banks want — prevent access to those who are licensed and who can effectively advocate for their client, before, during or after modification attempts, foreclosure or eviction.

The basic thrust of most such laws is to prevent any such company from collecting fees until the end of their services which means that such companies would need to invest in a mortgage deal, the benefits of which go solely to their client.

The proper way of handling this is through the existing web of lawyers, HUD counselors, realtors etc. who are all properly regulated and if they charge fees that are too high or fail to do the work, their license if disciplined with fines, suspension and even revocation. There are hundreds of thousands of such professionals around that would gladly assist homeowners, but who have no interest in loaning the expenses of representation to clients whom they barely know.

California has now extended this idiotic approach to lawyers as well, which means if the retainer smells like there is a modification possible, they are not allowed to charge any fees until the end. This obviously denies the homeowner from access to counsel, access to the courts, due process and equal protection under the law. Hopefully that rule, passed around November 12, 2012 will be brought before the California Supreme Court will be treated summarily. It’s bad for homeowners, lawyers, and all other licensed professionals who could provide valuable services in litigation, settlements, modifications, short-sales and wrongful foreclosure suits.

So right now, in California, the banks and pretender lenders can all use attorneys, realtors and others and pay then up front, salary, or anything else but the people against whom they are pressing illegal foreclosures are not allowed to hire such professionals because it could end up in a modification, which everyone agrees is the proper end to this mess.

PRACTICE HINT: Any lawyer or group of lawyers may file a rule challenge which MUST go to administrative  hearing and then (after exhaustion of administrative remedies) can go to court for contest or confirmation. Hearing officers are not ordinarily allowed to rule on constitutional issues, so you’ll end up in court pretty quick.

http://mandelman.ml-implode.com/2012/12/california-state-bar-recent-decision-to-cause-more-harm-to-homeowners-in-foreclosure/

Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud | Tagged: , , , , , , | 31 Comments »

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