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Falling Into the Traps Set By the Banks

Posted on December 19, 2016 by Neil Garfield

For the past 15 years there has been a huge chasm between what a document says and what actually occurred. In foreclosure settings, the conscious decision has been made to ignore the Truth and proceed on the falsehoods promulgated by the banks. This arises from the “national security” fear that if the banks are not allowed to continue their fraudulent behavior, the entire financial system will collapse taking the entire society down with it. This myth is promulgated by the Banks, who supply the government with people to regulate the banks. Even as a theory it is untested, and unsupported by any real evidence. Unfortunately for Americans, too many people believe it.

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THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.

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We are constantly analyzing the documentation that is produced by the banks or their surrogates. But we are failing our clients when we say that something actually occurred just because a piece of paper says it occurred.

“Prepared by” is just a hearsay statement that the document was prepared by the entity identified after those words. It does not mean that the document was in fact prepared by that entity — usually a title or closing agent — nor does it necessarily mean that the identified entity actually even handled the document.

Too often, and virtually the rule, is that facially valid documents are telling the truth about what occurred. In the present context of “lending” the facially valid documents relied upon by foreclosing parties are usually fabricated, forged, robosigned and prepared by entities who create and maintain the records upon which the foreclosure proceeds — separate and apart from the alleged “Trust” or other “owner” and separate and apart from the party identified as the servicer but who actually do nothing except lend its name for use in a foreclosure.

We don’t want to be saying (and therefore admitting) that the title or closing agent DID prepare the document — but rather admit the obvious: that the document says that they prepared it. It is the same with other documents.

We don’t want to say that an assignment was made; in our reports we say that the document labeled “assignment” says there was an assignment. It is easy to fall into the trap of assuming that basic references are truthful when in fact they are not. We do a disservice to our customers if we submit a report that plays right into the hands of the banks. It also misdirects the lawyer or pro se litigant into failing to object to the references within a facially valid document because then those defenses are probably waived.

But looking at the “prepared by” and “return to” instructions on an instrument may give you another lead to a witness who is unwilling to lie about the the alleged transaction.

The closing agent or escrow agent may be willing to state that they received money, as they were instructed, and that they dispersed the money as instructed. They might be willing to admit that they did not prepare the documents but rather received them from a source that also might not have prepared them. And they might be willing to admit that they have no knowledge of from whence the money came for the alleged “closing.” Thus their testimony could be that they can provide no foundation to the assertion that a loan was made by the named mortgagee or beneficiary.

A facially valid document, particularly if it is recorded in the public records, normally carries with it a presumption of truthfulness unless there is evidence to suggest that the document was fabricated, forged, robosigned or that there are other indications that the document is just a self-serving fabrication. But the admission of such a document into evidence should be the start of the argument not the end.

Once the document is admitted into evidence, hopefully over the timely objection of foreclosure defense counsel (lack of foundation), the statements within the documents are hearsay unless the hearsay objection is waived. Those statements, without foundation testimony cannot be used as foundation for other testimony about the authority of the “servicer”, the “trustee,” or anyone else posing as owner or servicer of the DEBT.

A simplified example: A warranty deed executed by John Doe, executed with the formalities required by statute is a facially valid instrument. The recipient Jane Roe received title ownership of the property according to the provisions stated on the face of the deed. If the deed is then recorded in the County records, it establishes notice to all the world that Jane Roe is the owner of the property described in the deed.

But if John Doe never owned the property then the deed conveys nothing. It is a wild deed. It can be ignored by the world and everyone else. It can be removed from chain of title generally by a quiet title action (lawsuit in local jurisdiction) or simply an affidavit saying that John Doe mistakenly executed the deed describing the wrong property or whatever situation arose to cause the recording of a false deed in the chain of title to someone else’s property.

But if Jane Roe insists that she does own the property described in the false deed and acts on that assertion, that is where things get messy. If Jane Roe files a quiet title or other lawsuit and presents the facially valid warranty deed from John Doe, the deed will be admitted into evidence, probably over the objections of the real property owner. It is admitted to prove only that the document exists in the county records and NOT to prove that the truthfulness of representations on the deed (“Grantor is full seized and owner of the property”), which is still the burden of proof for Jane Roe. There is also generally a representation as to the payment of good and valuable consideration, which we will presume Jane Roe never paid and obviously can’t prove. And THAT is where Jane Roe’s case should fail.

The mistake made by pro se litigants and lawyers defending foreclosures is that they don’t go back to these basics. The original note and mortgage may indeed have been signed by the present homeowner. But the representations concerning payment of good and valuable consideration by the party named as mortgagee (or beneficiary under the deed of trust) are untrue as to most of the original “transactions” and therefore all succeeding documentation purporting to “sell’ grant bargain and deed” the note and mortgage to another party. Even where the originator does fund the initial “loan” (a small minority of originated documentation) the assignments are mysteriously missing any actual payment and therefore there can be no proof of payment of good and valuable consideration.

In plain language, the fact that the homeowner owes SOMEBODY doesn’t mean that they owe just ANYBODY.

For the past 15 years there has been a huge chasm between what a document says and what actually occurred. In foreclosure settings, the conscious decision has been made to ignore the Truth and proceed on the falsehoods promulgated by the banks. This arises from the “national security” fear that if the banks are not allowed to continue their fraudulent behavior, the entire financial system will collapse taking the entire society down with it. This myth is promulgated by the Banks, who supply the government with people to regulate the banks. Even as a theory it is untested, and unsupported by any real evidence.

It is this policy of presumptive national security that has sacrificed the lives of 20 million people thus far.

Questionable Documents: Investigation and Discovery Required

NOTE: Analytical reports on title or securitization are not evidence without foundation testimony and/or affidavit, as the court permits. Our analytic summaries represent our observation and opinion as to issues regarding Chain of Title, Authenticity, Forgery, Fabrication or Robo-signing. Actions to be considered include sending a Qualified Written Request (QWR) under RESPA, Debt Validation Letter (DVL) under FDCPA, letters/complaints to State Attorney General and Consumer Financial Protections Board, and legal claims and defenses as to Legal Standing.

Filed under: foreclosure | Tagged: assignments, DEED OF TRUST, forensic analysis, FOUNDATION, hearsay, information, infrastructure, National Security, Prepared by, Return to, TRUTH, warranty deed | 20 Comments »

Evidence: No Magic Bullet

Posted on November 8, 2016 by Neil Garfield

Information is not the same as Evidence. It’s only evidence if the Judge (1) rules it is evidence and (2) admits it into evidence into the court record. Once admitted, the Judge is free to consider the information with as much or as little weight as it chooses.

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THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.

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Nearly all pro se litigants and too many lawyers combine a shotgun approach on legal argument and a single focus on unprovable facts. More than judicial bias, the presentation of information in court lies at the heart of “bad” decisions by the the courts. Combining presentation deficiencies with bad pleading and an utter failure to control the narrative, such litigants and their lawyers are doomed to failure.

This is a summary of the subject of evidence at trial, as I see it. Information, testimony, documents and the public domain are the sources of information from which litigants and their lawyers draw conclusions and develop a narrative of the case. None of these constitute “evidence” and will therefore be ignored or ruled irrelevant by a court of law unless a court rules that the data or information is somehow connected to the case at hand. Even allegations of patterns of conduct are insufficient to support the proffer of such information unless the information is coupled with direct evidence (testimony, documents) connecting the behavior of the bank or servicer with the case at hand.

Nothing is evidence that can be considered by the trier of fact (Judge, jury) unless the judge rules that it is evidence AND that it is admissible in the case at hand. Unless the homeowner can show that the preferred evidence is relevant to a defense or avoidance, the Judge has no choice but to exclude the information from evidence and thus from the Court record.

My observation is that there are four levels of “EVIDENCE:”

General information not directly related to the case at hand
Specific information that is relevant to the defenses raised.
Persuasive evidence supporting either defenses or avoidance
Conclusory evidence that inescapably leads to a result either by logic or rule of law.

INFORMATION AND BELIEF: Pro se litigants understandably don’t understand the difference between general information and the rules of evidence. They come to court with information from the media or other sources showing what they think is evidence of wrong-doing and they are frequently right. But information about wrong-doing in OTHER cases is not evidence of wrongdoing in your case.

RELEVANT INFORMATION and EVIDENCE: Testimony, such as those cases where the bank or servicer mislead the homeowner by steering them into default through assertions that a workout or modification is only possible if they are 90 days behind is information. It is also evidence that the court will generally allow in evidence. But allowing it into evidence doesn’t mean that the trier of fact will give it any weight when coming to a decision. The well-versed lawyer will ask for the recordings of the conversations in which such misleading representations were made. More often than not the recordings are said not to exist. Their alleged nonexistence can be challenged by information, ruled as evidence by the court, that all other conversations had been recorded. The absence of conversations regarding the modification MIGHT be used as evidence of concealment and corroboration of the homeowner’s testimony that he/she was mislead into stopping payments and thus going into default.

PERSUASIVE EVIDENCE: Just because information is allowed into the record as evidence doesn’t mean the trier of fact will use it in making a decision. As related in the preceding paragraph you can see how raw information becomes relevant evidence and then evolves into persuasive evidence. You are always working against the beginning supposition that no bank would want a loan to become non-performing. And you probably can’t prove that policy, although there have been occasions where testimony or recordings were admitted into evidence showing that the purpose of the alleged servicing company was to obtain a foreclosure judgment and foreclosure sale. Even then, the Judge is left wondering why such a policy would exist, using the reasonable man foundation for believing that the rational thing to do as a lender is to collect on a debt, not to waste the collateral or the debt. Thus the level of persuasion in order to win is much higher in that context.

CONCLUSORY EVIDENCE: This falls into two categories — legal presumptions that are outside the judge’s scope of discretion and “weight of the evidence”that remains within the scope of the judge’s discretion. It is rare that you can introduce anything that requires the judge to rule in favor of the homeowner. But the reason why “greater weight of the evidence” is the rule is that the trier of fact is receiving evidence that cumulatively leads inescapably to the conclusion that the foreclosure is defective. Evidence does not rise to this level unless the robo-witness on the witness stand acts or says irrational things. I call this the “Perry Mason moment.” This is eminently possible in a proper cross examination because the robo-witness’ knowledge is intentionally limited and usually nonexistent as to the workings of the REMIC Trust, the distribution of income from servicer to the “creditor”, and the agreements in which servicing has been created or changed.

Actual Example from My Recent Trial in Orlando:

Q: Here is the Power of Attorney you introduced as evidence that is signed by Chase. And here is the Pooling and Servicing Agreement. Can you show me where Chase is mentioned as being in the chain of ownership or authority?

A: NO.

Q: NO?

A: NO.

Q: Don’t you want to look?

A: NO.

At that moment the court was left with the inescapable conclusion that Chase had no authority to execute the POA and that the Plaintiff’s case had failed.

Filed under: foreclosure | Tagged: evidence, information, persuasive evidence, relevance | 5 Comments »

Getting the RIGHT Report: Rebutting the Presumptions That the Original Note and Transfers Had Any Legal Effect

Posted on June 11, 2012 by Neil Garfield

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Editor’s Comment: The biggest problem to knocking the banks on their ass is the feeling deep down inside the homeowner that the loan is valid and so is the mortgage. So people are thinking in terms of buying time rather than winning the case. Lawyers are saying the same things to themselves even as they take your money to represent you which is why I started http://www.garfieldfirm.com — so we would have lawyers who are NOT thinking that way and to get hundreds of other firms to compete with passion in their hearts that the homeowner is the victim.

The current state of affairs is that in most cases, misguided Judges are forcing investors to take bad loans that do not conform with their agreement (e.g. cutoff required under Internal revenue Code and express PSA terms and conditions) in a process that does not conform to the process of origination and transfer expressly stated in the PSA (as expressed in the prospectus and Pooling and Servicing Agreement), thus enabling the investment bank to throw the loss onto the investor in a newly fabricated (see Congress decision from June 8 in Alabama Appellate Court) — and the kicker is that investor knows nothing about the transaction or litigation and is presumed to have accepted the assignment of a non-existent loan. The borrower is being forced to pay on a non-existent loan or lose his or her house. And still the borrowers persist on thinking they are getting what they deserve, thus leaving the banks with the money while the investors and homeowners get nothing.

Only 2% of the mortgage loans are contested in any meaningful way and 80% go about it in the wrong way. I mean to change that 2% to 75% of the mortgages being contested, and reduce the number of mistakes such that only a small fraction of mortgage contests are done incorrectly.

Have you heard the term “Master Servicer”. Yes, well they are the ones actually orchestrating events on behalf of the investment bank that put up this illusion that we call securitization. They sold the pension funds on what? The pension funds advanced money to the investment banking firm which was placed into a super fund account from which closing money found its way to the closing table with the so-called borrower.

The real reports and accounting are those that are given to the creditor, not the borrower. The reports to the creditor come from the Master Servicer whereas the reports to the borrower come from the subservicer which doesn’t have access to to creditor’s accounts so it is in no position to report, account or testify through affidavit or in person what the creditor’s ending balance is as of the day of the declaration of default or the day of the testimony. The subservicer’s proffer of testimony should be subject to voir dire in which they admit that there is a master servicer that keep the accounts for the creditor and the subservicer has no knowledge or access tot hat.

This is followed by an objection to the competency of the witness to testify as to anything other than transactions in which it received money from the borrower and transactions (never included) in which it paid out those moneys to the creditor.

Take great care here not to suddenly find yourself carrying the burden of proof on facts that are exclusively within the hands of the pretender or the agents of the pretender. Your motion should be directed at the incompetency of the witness to tesify as to the conclusion that there was a default and the fact that they declared the default without gaining access to the information from the Master Servicer. Hence the objection also to any documents being proffered to the court as evidence, since they clearly do not and cannot by definition establish the default.

You don’t want to find youself in the position of having the Judge rule that the proffer of that evidence is sufficient for a prima facie case and that if you wish to rebut it you must come forward with proof of other payments. Since THEY are the party seeking affirmative relief, the burden should ALWAYS be on them to produce all relevant accounting and reports nefore they take the home away from a homeowner.

What the borrower and the Courts are getting are simple subservicer reports which amount to no more than a printout from a computer that may or may not have the right data, the right loan or the right starting figures. It may or may not have charges that are permissible or not permissible against the account. But the real information about the account balance is what the creditor is showing on its books and that information comes from the distribution reports and discovery of the accounting records of the Master Servicer and the Tax statements for the creditor.

But here is the kicker. The investment bank (Master Servicer) is NOT reporting the receipt of proceeds from insurance, credit default swaps, and other credit enhancements — not even to the investor. So they are manufacturing (fabricating) a loss that does not exist, at least in part. This is relevant to everything in a foreclosure including the identity of the creditor who is allowed to declare the default, and the identity of the creditor and the amount due so that real creditor can submit a real bid that is called a credit bid because it is the equivalent of the amount due ON THE ACCOUNT.

The magic sleight of hand trick being played is that the subservicer is giving the court an accounting of transactions with the alleged borrower when in fact the creditor is getting a completely different report, many of which show continuing payment from the subservicer or Master Servicer.

The borrower and borrower’s counsel are unaware and in most cases don’t even know enough to ask for these reports. The creditor is entitled to payment on his account — once and only once. The fact is that insurance and credit default swaps are right there in the pooling and servicing agreements, and so are credit enhancements like overcollateralization and cross collateralization.

That is money that (a) should be reported and paid to the investor creditors and (b) allocated to the loan accounts’ principal reduction as an additional payment. In many cases the creditor’s balance is zero because the creditor has been paid off in total, settled or traded the bogus mortgage bonds for something else of value — which is to say that the “pool” or “trust” proffered by the attorney fro the pretender lender does not even exist anymore.

All this money came from “players” who knew the Wall Street game and were gambling with pension money, depositors money etc, contrary to law and common sense. In no way was any homeowner even mentioned by name much less offered the opportunity to look at the terms offered to the lender, which were substantially different that the terms offered to the homeowner. The homeowners’ signature on “loan papers” was in actuality the issuance of a security that was traded furiously even if it was procured by fraud in the inducement and fraud in the execution.

The result of this frenzy is that through multiple channels including the Federal discount window and the TARP bailout, together with the maiden-lane disposal of toxic waste loans, the creditors were satisfied leaving the homeowner owing nothing to the creditor that loaned him the money. The insurer and the issuer of the credit default swap expressly waived any right to enforce against the homeowner.

AND the homeowner was the innocent bystander who thought he was borrowing money from one party, received it from another and then issued negotiable paper that was filled with misrepresentations. So the pretenders have nothing but dirty hands and the borrowers are clean.

So there is an obligation out there that the homeowner might owe — but the debt that was created at the time of receipt of the funds was never described in any document. In fact, the debt described in the promissory note and mortgage never arose because there was no loan transaction between the homeowner and the originator. This actual debt arising out of an actual transaction in which money was received by or on behalf of the borrower came from a pipeline outside the transactions described in the origination documents and outside the scope of transactions referred to in allonges, assignments and endorsements all fabricated in order to keep the Judge’s eye on the wrong ball.

The real transaction was NOT subject to, described in or referred to in any deed of trust or mortgage and therefore was not secured. If not secured, no valid foreclosure could occur without some sort of waiver by the homeowner that was clear and unequivocal or some order of the court based upon a judicial proceeding in which the terms of the loan are established by court order as of a date that the order says it is effective. Every document relied upon by the pretender lenders was a lie. It described transactions that never occurred. Thus every foreclosure based upon such documents was also a lie.

Interrogatories, requests for Admission and especially requests to produce (not just the documents but the financial records showing that consideration was paid by the party or to the party stated in the instrument), Motions to set aside, vacate, recuse, remove counsel, sanctions, discovery, and reconsideration are being filed to (a) obtain relief and (b) allow the record to be created for appellate review. Without a good record on appeal, the appellate court is hamstrung to affirm a decision it thinks was wrong.

Distribution reports are your first clue that they left out an accounting that they had and we didn’t and they refused to give up. Notice that WF is the party reporting and disclaims the accuracy. Then who DOES know what went on, where are they and was the loan balance even computed on the day that the loan was declared in default — i.e., what did the CREDITOR (not the subservicer) show as the balance due? Getting the “accounting” from the subservicer is useless. If you had 10 children and you gave them each $100 with the responsibility to account for the money, why would you only take the accounting from one of them?

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Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud | Tagged: appeals court, appellate court, borrower, Darrell Blomberg, discovery, due process, evidence, evidentiary hearing, homeowner, information, pretender lender, Wells Fargo, Wells Fraudgo | 21 Comments »

Information vs. Evidence: Challenge to Affidavit in Support of Summary Judgment

Posted on June 11, 2012 by Neil Garfield

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Editor’s Comment:

I’ll be appearing soon at one of Darrell Blomberg’s Strategy Meetings (which take place every Tuesday evening at Macayo Restaurant in Central Phoenix) to do a session on evidence on June 19. The analysis below is the type of thing I do to support lawyers and litigants when the pretender lender submits a bogus “affidavit” in support of some action, usually a Motion for Summary Judgment. Among other things this is what we’ll be talking about on June 19 and this will be subject of much more discussion on July 26 at my 1/2 day seminar overview for Lawyers.

Analysis of Declaration in Support of Motion for Summary Judgment

“These facts are personally known to me to be true.” How does he know them? — was he there, did he hear, did he see or was he told and he believes them and therefore he means “personally known” as meaning he knows the people who told him the facts. NOTE: if he was a supervisor of a specific department dealing with the past factual issues leading up to the foreclosure and related issues, and if he can prove that the documents or statements were made in the ordinary course of business and at that time they had no fear or thought of being used in litigation, then it MIGHT be an exception to the hearsay rule.
Otherwise anything he was told or shown are excluded because they (OBJECTION:) lack FOUNDATION because he is not a competent witness to establish the authenticity of the document nor the truth of the matters asserted therein.
In this case the entire affidavit should be struck, it should not be considered to support the motion for summary judgment, and the motion for summary judgment MUST be denied unless they have other affidavits timely filed from people who can establish that they have personal knowledge.
He is the President which most likely means that he had nothing to do with any of the facts of this case and only became aware of the the existence of the case when he was called to execute an affidavit. In fact he identifies himself as the President of a company whose function was to be (1) the “foreclosure trustee” and (2) limited signing agent for the beneficiary under “the deed of trust” without identifying the deed of trust.
Unless he was doing the work himself he is admitting that he is relying upon the word and work of others and is subject to a hearsay objection.
The business records exclusion to the hearsay rule must be proven by the proponent of the exemption, not the objector which means he must prove with documents and testimony how the facts upon which he is testifying became known to him in the ordinary course of business which means that he reviews all documents as they come in, which of course he does not. Neither does he perform the work involved. The trap door to avoid here is that even if he were to satisfy all the requirements, which he obviously cannot, his knowledge is ALL limited to events that occurred before the decision was made to foreclose and there fore the receipt of an accounting from the sub-servicer, no account from the master-servicer and no accounting or instruction or authority from the creditor to go ahead with the foreclosure and submit a credit bid in the name of the identified creditor.
Since his company is the “foreclosure trustee” he is admitting that they only have knowledge on their own as to matter that occurred AFTER they received the file or instructions and we ought to know which it was — the file or the instructions.
Since he identifies his company as the foreclosure trustee he is admitting that the sole purpose of the company, even though it was called a trustee, was to foreclose on the property after the substitution of trustee.
They were ordered to foreclose and NOT to perform due diligence or to take any action to protect BOTH the homeowner and the purported creditor, who in this case is a stranger to the transaction as required by statute.
The Trustee is a substitute for the court and if the facts are in dispute the trustee has no power to decide the merits of competing claims (trustee is a not a special master who can conduct hearings and rule on evidence or make recommendations of findings to the court), which means that the his company was duty bound, upon learning of competing claims, to take the matter to court if the parties could not resolve their differences.
Specifically the “trustee” should have filed an interpleader action in which the trustee would have stated that they had no stake in the transaction (something that was untrue since they were a controlled or owned entity by the party pretending to be the creditor) and that that there is a dispute of facts concerning the procedure and substance of the foreclosure and that the court must rule on the competing claims of the parties — after BOTH have submitting pleadings stating their positions and then proving the claims in accordance with the rules of civil procedure, due process and the rules of evidence and the doctrines concerning the burden of proof.
If you sign this response as an affidavit, then the burden shifts to them to show that they are truly a trustee and not just an agent of the pretender creditor.
Since the party seeking affirmative relief is the pretender creditor seeking to take the house using a credit bid instead of cash when they are not the creditor, the pretender creditor would be required first to submit the pleading and exhibits upon which they depend, and second the homeowner would be required to file responsive pleading — motion to dismiss, motion to strike, etc. or answer, affirmative defenses and counterclaim.
He identifies the COMPANY as the limited signing agent for the beneficiary. There is no definition of limited signing agent. A review of statutes and common law reveals that this term has never been used in any legal document or case EXCEPT where it refers to a notary who is identified by name and license number. It does NOT refer to the authority of any company or person to sign on behalf of another party or company without a separate document providing said authority properly executed and binding under the laws of the state in which the grantor is located and the laws in which the document is to be used. LIke MERS was a naked nominee and the “lender” was a “naked nominee” a limited signing agent is a naked nominee meaning, in the parlance of the industry a bankruptcy remote vehicle that will perform acts which might otherwise subject the principals to criminal or civil liability. It is also used to conceal the the identity of the principals.
Which deed of trust? The one allegedly executed by the homeowner which may or may not be the one produced as the original but without scrutiny cannot be authenticated as anything more than a fabricated document utilizing modern technology and a color printer?
“I have personally reviewed the files.” This phrase has been repeatedly thrown out as establishing the business record exception. The fact is that somehow he saw documents without establishing how they came into his possession and who the parties are (why are THEY not testifying?) and what knowledge THEY had, who prepared the documents in the file, what security was used for the posting of data to the files, and what security was employed in maintaining the security of the files?
This is layers upon layers of hearsay without any valid exemption. Motion to strike the affidavit.
Motion to remove NDEX as trustee,
Motion to void the substitution of trustee and install the original trustee as the trustee on the deed of trust or some other actually independent party.
Objection in title registry office to the recording of the substitution of trustee because they knew that NDEX was not a trustee but rather was the foreclosure agent, as admitted by this affidavit, masquerading as the substituted trustee
Motion for sanctions and cause of action for slander of title for filing false substitution of trustee directed at parties named on the substitution of trustee and the parties who prepared it and the lawyers who presented it knowing that it was a falsified, fabricated and forged fraudulent document.
“My experience as the officer of the company provides the foundation for my knowledge referenced herein.” This is an outright admission and should be the leading the point. He is saying that he has been in the business a long time so looking at the the records of the homeowner in this case is like looking at the records of thousands of others where he made the same decision (but we must emphasize that he undoubtedly did not and specifically does not say that he reviewed other documents). It is an admission that he has NO PERSONAL KNOWLEDGE of the documents, that therefore the affidavit is worthless, and that therefore the affidavit is not the required foundation for admission of the documents because he, the affiant is not a competent witness (look up competent witness in CA statutes and common law requiring OATH, PERSONAL perception sight,hearing etc., MEMORY and the ABILITY to COMMUNICATE. In fact, he has disqualified his entire firm as a foundation witness since by definition (foreclosure trustee) they received the documents after the decision was made by parties outside the chain of title to foreclose.
“I have personal knowledge of the accuracy of the records.” He already said he doesn’t and that he (a) received the documents when they were to be foreclosed and (b) relied upon his experience when he reviewed the documents, but still fails to state who prepared the data or documents, how they were kept, when they were kept, where they were kept and who was involved. ALl of this could be easily resolved had they chosen the people who actually DID have knowledge, But they didn’t do that. Why? Because either those people refuse to testify to the facts that they want or those people are MIA after being downsized.
At no time does he say that his company acted as the servicer, creditor, or master servicer. He merely says that they received data and documents from unknown undisclosed sources AFTER the decision to foreclose was already made. By definition neither he nor his company would be competent to testify to facts or documents or data that occurred PRIOR to the time that his company was the “foreclosure trustee”
There is no reason to believe that any unauthorized person had access. Nor is there any reason to believe that unauthorized access didn’t occur on a regular basis, just like MERS.
The rest of the paragraphs say what I said above — he knows nothing, saw nothing, heard nothing and was never in any contract with borrower or anyone else as a servicer, never handled any money, and posting, or anything else.
Paragraph 16 is a particularly interesting because to corroborates the argument that they were NOT acting as trustee, they were acting as agent. He says that his company acts ONLY as a limited signatory agent to sign and record the Notice of Default (why doesn’t the creditor do that if this company is not the service nor the conduit or collector of any funds) and that the ONLY other function was to serve as “foreclosure trustee.”
The last paragraph says it all. They foreclosed because they acted on instructions from the loan servicer without any regard for what the homeowner had to say in objection to the allegations of the loan servicer. (see discussion on interpleader above).

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Information vs. Evidence

Posted on June 7, 2012 by Neil Garfield

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Editor’s Comment:

I’ll be appearing soon at one of Darrell Blomberg’s Strategy Meetings (which take place every Tuesday evening at Macayo Restaurant in Central Phoenix) to do a session on evidence. And in fact, I am thinking about a half-day seminar on evidence, with Darrell as a co-presenter, he may not be a lawyer but he gets it — there is a huge difference between information (data) and evidence. And there is a huge difference between evidence and admissible evidence. And in discovery, you have the right to pursue information in interrogatories, requests for admissions and requests to produce for INFORMATION that might lead to the “discovery” of admissible evidence.

I am adding this overview into the 2d edition Workbook, Treatise and Practice manual. I want to get this lesson out to lawyers and litigants as quickly as possible. And the reason is that these people have forgotten or never knew the difference and they certainly are confused about the procedure. Take a look at the appeals court decisions that slap down the borrower. There is almost always a statement in the opinion that appellant argues XYZ but we don’t see X or Y in the record. In the absence of X and Y being in the record, the appellate court has no authority to find Z and rule in favor of the appellant (borrower).

Every appellate case I have read that ruled against the homeowner falls into this category. Every one of them has a recitation of “facts”, “history” or “background” that is simply untrue but has been made part of the record and which is regarded as “evidence” because it is in the record.

Example: The primary recital in these appeals usually says something like, “The appellant is John Jones. John Jones applied for and received a loan from Mama’s Money Farm on October 16, 2008 in the amount of $869,000. Jones promised to repay the money in monthly installments as set in the promissory note and mortgage (or Deed of Trust) which he signed. Wells Fraudgo is the current holder of that note and seeks enforcement through the power of sale (or in judicial states, through a foreclosure lawsuit) seeking collection of the money due and sale of the home at auction to the extent that the borrower is unable to make the required payments. Jones defaulted on the note by failing to comply with the schedule of payments in the note he executed for the loan he received, to wit: he stopped making the payments that were due under the note on January 1, 2009.”

How did this recital get into the record so that the appellate court could include it in its opinion justifying the affirmation of the trial court’s decision throwing the borrower out of court and even telling the borrower they were “vexatious” etc (Madison v. MERS et al see previous blog post 6-6-2012 entitled “They Will Get You on Procedure Every time”)? It got there without any evidentiary hearing or without any hearing in which the borrower’s claims and defenses could be given a fair hearing, with full rights of discovery etc.

This could only happen if the litigant was quiet while the lawyer for the pretender lender “proffered” these facts in his opening narrative of each hearing and the homeowner or his attorney failed to object immediately. “Wait your turn” is the polite way of saying let the other guy talk. But if you let the other guy talk and THEN bring up your defenses and claims, your procedural objections, the Judge has already formulated an opinion about the nature of this case. You might buy some time with procedural irregularities but you won’t win the case, force the other side into a settlement, mediation or modification and you certainly won’t get rid of the mortgage that is recorded in the county title registry.

You will be treated like a deadbeat because you have inadvertently confessed to being a dead beat. You have agreed, without realizing you agreed, that everything the lawyer for the pretender lender has said is true, which means that the statements (proffers) of the other lawyer are now evidence in the record, and the rest of the case was you saying “yes but….”

Trial note 101: Never let go of the narrative regardless of who is speaking but always be polite, courteous and respectful in your words even if you make various faces and expressions that the court reporter is missing. Oh yes — if you want a record on appeal you need a court reporter. Your statements about what the Judge said or what happened in court in your appellate brief is useless and will be properly disregarded by any court reviewing the actions in the court below.

So here is what you want the appellate court to see in the record. First a Notice of filing of everything you would offer into evidence that might be rejected by the court. This would include my expert declaration (although I think we found a couple more people with the right credentials to survive as experts located in Maryland) and all exhibits to the reports, opinions and affidavits that you have showing that that you have some reason (not necessarily proof) for denying the debt, denying the default, denying the note, denying the mortgage and denying that the pretender lender is either the lender or anyone who purchased the loan.

Second, a Motion to set discovery schedule together with a SHORT version of your discovery requests.

Third, a transcript showing continual interruptions with proper objections like “Objection your Honor, we demand proof of authority to represent. In cases all over the country this pretender lender and others are represented by lawyers who never speak with the client, don’t get retained by the client and who only know that someone gave them a file that was recently minted from the fabrication factory of fake, forged and fraudulent documents.”

“Objection your honor, counsel is attempting to proffer facts that are not in evidence and that are vehemently denied by the homeowner who is being improperly identified as the borrower.”

“Objection your honor, counsel is attempting to proffer facts or even testify as to matters that are not in the record. If counsel wants to testify then let’s get him sworn in and put in a witness chair where I can cross examine him as to the foundation for his pretender personal knowledge regarding this bogus loan and fraudulent foreclosure.”

Objection: “Counsel is attempting to get into the record that which he could never get into evidence were this an evidentiary hearing. The homeowner vehemently denies that the application on file was filled out by him or that he authorized it. My client denies the signature is valid either because it was forged or it was procured by fraud in the execution in which case he thought he was signing something else while hands covered the true nature of the document.”

“Objection your honor. Counsel is trying to proffer information into the record that will be perceived as evidence. My client rejects that recital and denies that he ever received a loan from Mama’s Loan Kitchen, denies that the promissory note correctly recited the terms of the loan and therefore denies that the mortgage lien was properly perfected. He further denies that there was any default on any loan and therefore denies that any assignment from Mama to Fraudgo could have been valid. He further denies that the assignments stating “for value received” involved any transaction where any value was received and therefore failed for lack of consideration. He further denies that even if the documents relied upon by the Fraudgo were valid, there would still be no default because the creditor was being paid without interruption according to their very own Pooling and Servicing Agreement and he denies there ever was a meeting of the minds (although the Fraudgo agents from Mama’s Money Kitchen made it appear to the homeowner that the proper disclosures were made, that the lender agreed to these terms) when in fact the lender (the actual source of funds) agreed to an entirely different set of terms for repayment.”

“Your honor it is our position that the promissory note described a transaction that never occurred and that the mortgage was an encumbrance based upon the false representations of the note. This is like one lying and the other swearing to it. If they are not afraid of proving their allegations then by all means we don’t want to deprive the pretender lender of an opportunity to be heard in court. But the homeowner is entitled to the same consideration under the requirements of due process. The homeowner denies that he failed to make any payment that was due and he denies that the obligation to the real lenders (creditors) in this case is currently in default.”

Evidence is whatever the Court lets in as evidence in which case the court says it is letting the information in as evidence to prove that ABC happened. Or, as is usually the case in these foreclosure cases, evidence comes from silence of the lambs.

So if you want to box in the trial judge and the appellate court let there be a record that shows you followed the rules, there were genuine issues of material fact and the trial court still would not allow the homeowner to proceed. That’s enough to eventually get a ruling that allows discovery to proceed. And Discovery is the magic key to the kingdom of settlement — but probably not until after 5-6 motions to compel answers or better answers to our discovery requests.

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Filed under: foreclosure | Tagged: appeals court, appellate court, borrower, Darrell Blomberg, discovery, due process, evidence, evidentiary hearing, homeowner, information, pretender lender, Wells Fargo, Wells Fraudgo | 22 Comments »

FANNIE AND FREDDIE BLOCK INFORMATION, PROTECTING BANKS AND FORECLOSURES

Posted on November 6, 2011 by Neil Garfield

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“Fannie and Freddie should be held accountable for (1) failing to check whether the loans were in fact viable, in conformity with GSE requirements and industry standards for underwriting (2) failing to check whether the loans were properly transferred by the actual owner of the obligation and (3) failing to provide easy access to the loan and trust information so that Banks, auditors, regulators and borrowers would be able to determine whether a particular loan was claimed as an asset of the pool (trust) was in fact present.” Neil Garfield, livinglies.me

FANNIE AND FREDDIE DIDN’T MAKE OR CALL FOR LOANS

EDITOR’S ANALYSIS: Fannie and Freddie were not responsible for the housing bubble, nor were they pressuring the Banks to issue more loans, subprime loans or any kind of loans. Contrary to ideological dogma these government sponsored entities didn’t make any loans. They were neither depository nor lending institutions. They merely served as conduits through which the Banks securitized the loans using Fannie and Freddie as a Master Trustee of pools that were supposed to be Trusts holding pools of loans.

As we have seen, the pools were largely empty because the documents of transfer referred to defective or even non-existent loans and the Assignor frequently didn’t own the loan it said it was transferring into these GSE trusts. But Fannie and Freddie should be held accountable for (1) failing to check whether the loans were in fact viable, in conformity with GSE requirements and industry standards for underwriting (2) failing to check whether the loans were properly transferred by the actual owner of the obligation and (3) failing to provide easy access to the loan and trust information so that Banks, auditors, regulators and borrowers would be able to determine whether a particular loan was claimed as an asset of the pool (trust) was in fact present.

This last item, information access should be a no-brainer, but the GSE’s are like a brick Wall when we do our securitization analysis causing much confusion and irritation amongst analysts and borrowers. This information should be totally transparent but it isn’t. When you get to Fannie or Freddie, you are met with an entry on their website that says nothing about any of the questions raised above and which will make the OCC Review process that much more difficult. Either they have the information or they don’t. If they don’t, the entry shouldn’t be made on their website because they don’t actually know anything about particular loan or loan transaction.

“Fannie owns it” is a statement that many are making when not even the agency itself knows if that is true. And in the effort to prove the location of the loan, Borrowers are repeatedly making the same mistake: proving their opponent’s case for them. The burden of proof after any serious question regarding title or loan ownership is raised, shifts to the would-be forecloser. Beau Biden, Delaware AG who just filed suit against MERS, says that at the very least, 25% of the time the Banks are getting it wrong just because of the use of MERS. Add in other reasons and the numbers go sharply up.

I would say to the lawyers who are litigating these issues: don’t get caught in the trap of assuming the burden of the other side. Proving that the loan IS in a pool defeats part of your case. Later you are going to present evidence that they didn’t execute transfer documents properly. How do you expect a Judge to take that seriously when you have already admitted that the loan is in the pool? SUBPOENA THE RECORDS.

Today in doing securitisation research a loan may be discovered on the Fannie and Freddie websites. but this provides little help to the auditor or analyst. The entry onto the website indicates that these now government nationalised entities might be involved and not that the loan documents or mortgage was perfected as a lien, not that a transfer of the loan ever occurred and not whether the GSE’s are or ever were creditors since at no point in time did their charters permit them to act as lenders. It is this Wall of Silence that keeps us from knowing what we really went on.

If Fannie and Freddie show the loan their website the most that can be said about it is that they accepted the filings of the Banks without checking the paperwork, they assisted in the securitisation of the loan but won’t tell the average researcher anything about the name of the trust into which the loan was supposedly placed and they MAY have a guarantee liability to buy or pay off the loans. They demand money to give you any information beyond the website and then they don’t give you enough information.

The entire Fannie and Freddie myth is a Bank spin on private sector loans. The real data shows that it was the private sector Banks who originated ALL the loans — and then those same Banks supplanted the function of then GSE’s by going directly to the secondary Market and no doubt mixing in the GSE trust pools with the private pools so they could claim to investors that their investment into bogus mortgage bonds was guaranteed by the Federal government — a classic sales trick to make the bonds more appealing by reducing the appearance of any risk of loss.

The MO (method operations) was then same one they used in the creation of MERS wherein they privatised the recording system present in all states. By replacing the public system with their own non-secure data they could play with the data and claims and force us into accepting the representations of counsel as to the status of the loan.

Despite the very active PR machine, the Banks have been shown to have co-opted the role of government in tracking and diminished the assurance from a title record that Buyers of anything are actually getting to legal title to whatever they bought — whether it is real or personal property. THE BANKS WANT TO FORCE THE BORROWERS INTO ACCEPTING THE LOSSES CREATED BY MASSIVE FRAUD AND SCREW-UPS BY THE BANKS. But the borrowers had the least information about the transactions they were tricked into signing and clearly have the least amount resources to pay for the crisis.So the creative spin machine managed to convince our government but not our citizenry that the people as taxpayers should pay if the people as borrowers could not pay on deals that nobody could pay.

If you want to do something, then send a barrage of letters to Fannie, Freddie, and your congressmen about opening up that information on Freddie and Fannie. If they have the information let them say so and then make it available like any other public records request. If they don’t have the information let them explain why they show the loan on their website.

McClatchy Washington Bureau

Private sector loans, not Fannie or Freddie, triggered crisis

David Goldstein and Kevin G. Hall | McClatchy Newspapers

WASHINGTON — As the economy worsens and Election Day approaches, a conservative campaign that blames the global financial crisis on a government push to make housing more affordable to lower-class Americans has taken off on talk radio and e-mail.

Commentators say that’s what triggered the stock market meltdown and the freeze on credit. They’ve specifically targeted the mortgage finance giants Fannie Mae and Freddie Mac, which the federal government seized on Sept. 6, contending that lending to poor and minority Americans caused Fannie’s and Freddie’s financial problems.

Federal housing data reveal that the charges aren’t true, and that the private sector, not the government or government-backed companies, was behind the soaring subprime lending at the core of the crisis.

Subprime lending offered high-cost loans to the weakest borrowers during the housing boom that lasted from 2001 to 2007. Subprime lending was at its height from 2004 to 2006.

Federal Reserve Board data show that:

More than 84 percent of the subprime mortgages in 2006 were issued by private lending institutions.
Private firms made nearly 83 percent of the subprime loans to low- and moderate-income borrowers that year.
Only one of the top 25 subprime lenders in 2006 was directly subject to the housing law that’s being lambasted by conservative critics.

The “turmoil in financial markets clearly was triggered by a dramatic weakening of underwriting standards for U.S. subprime mortgages, beginning in late 2004 and extending into 2007,” the President’s Working Group on Financial Markets reported Friday. [Editor’s note: A weakening standard caused by the fact that Wall Street wanted weak loans because the worse the loan the more money they made in the spread between what was advanced by the investor for funding mortgages and what the amount actually funded in loans to borrowers.]

Conservative critics claim that the Clinton administration pushed Fannie Mae and Freddie Mac to make home ownership more available to riskier borrowers with little concern for their ability to pay the mortgages.

“I don’t remember a clarion call that said Fannie and Freddie are a disaster. Loaning to minorities and risky folks is a disaster,” said Neil Cavuto of Fox News.

Fannie, the Federal National Mortgage Association, and Freddie, the Federal Home Loan Mortgage Corp., don’t lend money, to minorities or anyone else, however. They purchase loans from the private lenders who actually underwrite the loans.

It’s a process called securitization, and by passing on the loans, banks have more capital on hand so they can lend even more.

This much is true. In an effort to promote affordable home ownership for minorities and rural whites, the Department of Housing and Urban Development set targets for Fannie and Freddie in 1992 to purchase low-income loans for sale into the secondary market that eventually reached this number: 52 percent of loans given to low-to moderate-income families.

To be sure, encouraging lower-income Americans to become homeowners gave unsophisticated borrowers and unscrupulous lenders and mortgage brokers more chances to turn dreams of homeownership in nightmares.

But these loans, and those to low- and moderate-income families represent a small portion of overall lending. And at the height of the housing boom in 2005 and 2006, Republicans and their party’s standard bearer, President Bush, didn’t criticize any sort of lending, frequently boasting that they were presiding over the highest-ever rates of U.S. homeownership.

Between 2004 and 2006, when subprime lending was exploding, Fannie and Freddie went from holding a high of 48 percent of the subprime loans that were sold into the secondary market to holding about 24 percent, according to data from Inside Mortgage Finance, a specialty publication. One reason is that Fannie and Freddie were subject to tougher standards than many of the unregulated players in the private sector who weakened lending standards, most of whom have gone bankrupt or are now in deep trouble.

During those same explosive three years, private investment banks — not Fannie and Freddie — dominated the mortgage loans that were packaged and sold into the secondary mortgage market. In 2005 and 2006, the private sector securitized almost two thirds of all U.S. mortgages, supplanting Fannie and Freddie, according to a number of specialty publications that track this data.

In 1999, the year many critics charge that the Clinton administration pressured Fannie and Freddie, the private sector sold into the secondary market just 18 percent of all mortgages.

Fueled by low interest rates and cheap credit, home prices between 2001 and 2007 galloped beyond anything ever seen, and that fueled demand for mortgage-backed securities, the technical term for mortgages that are sold to a company, usually an investment bank, which then pools and sells them into the secondary mortgage market.

About 70 percent of all U.S. mortgages are in this secondary mortgage market, according to the Federal Reserve.

Conservative critics also blame the subprime lending mess on the Community Reinvestment Act, a 31-year-old law aimed at freeing credit for underserved neighborhoods.

Congress created the CRA in 1977 to reverse years of redlining and other restrictive banking practices that locked the poor, and especially minorities, out of homeownership and the tax breaks and wealth creation it affords. The CRA requires federally regulated and insured financial institutions to show that they’re lending and investing in their communities.

Conservative columnist Charles Krauthammer wrote recently that while the goal of the CRA was admirable, “it led to tremendous pressure on Fannie Mae and Freddie Mac — who in turn pressured banks and other lenders — to extend mortgages to people who were borrowing over their heads. That’s called subprime lending. It lies at the root of our current calamity.”

Fannie and Freddie, however, didn’t pressure lenders to sell them more loans; they struggled to keep pace with their private sector competitors. In fact, their regulator, the Office of Federal Housing Enterprise Oversight, imposed new restrictions in 2006 that led to Fannie and Freddie losing even more market share in the booming subprime market.

What’s more, only commercial banks and thrifts must follow CRA rules. The investment banks don’t, nor did the now-bankrupt non-bank lenders such as New Century Financial Corp. and Ameriquest that underwrote most of the subprime loans.

These private non-bank lenders enjoyed a regulatory gap, allowing them to be regulated by 50 different state banking supervisors instead of the federal government. And mortgage brokers, who also weren’t subject to federal regulation or the CRA, originated most of the subprime loans.

In a speech last March, Janet Yellen, the president of the Federal Reserve Bank of San Francisco, debunked the notion that the push for affordable housing created today’s problems.

“Most of the loans made by depository institutions examined under the CRA have not been higher-priced loans,” she said. “The CRA has increased the volume of responsible lending to low- and moderate-income households.”

In a book on the sub-prime lending collapse published in June 2007, the late Federal Reserve Governor Ed Gramlich wrote that only one-third of all CRA loans had interest rates high enough to be considered sub-prime and that to the pleasant surprise of commercial banks there were low default rates. Banks that participated in CRA lending had found, he wrote, “that this new lending is good business.”

Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud | Tagged: bankruptcy, borrower, countrywide, David Goldstein, disclosure, Fannie, foreclosure, foreclosure defense, foreclosure offense, foreclosures, fraud, Freddie, information, Kevin G. Hall, LOAN MODIFICATION, McClatchy Newspapers, modification, quiet title, rescission, RESPA, securitization, subprime, TILA audit, trustee, WEISBAND | 36 Comments »

Robo-signing is no magic bullet

Posted on August 3, 2011 by Neil Garfield

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Research and reporting on robo-signing is no substitute for the COMBO title and securitization search, report and analysis. It is a valuable adjunct to it. The COMBO provides the context in which the presence of robo-signing can be shown to be important — like a substitution of trustee in which the document is shown to be bogus. There, the COMBO report will show that the actions of the pretender were with full knowledge that they were not the creditor and that the document trail and the money trial go into multiple directions, none of which meet. All actions flowing from a false substitution of trustee (and there are many of them, if not most) are voidable if you properly object, keep the burden of proof on the pretender because you know the document cannot be authenticated. If the Judge allows it in anyway then you must bring evidence into court that will destroy the pretender’s prima facie case.

The confusion over robo-signing is causing some mistakes in court. By now there are many lists floating around the internet which name “people” whose name and “signature” have been affixed to legal documents upon which the pretender lenders rely in prosecuting foreclosures. Anyone offering you a magic escape hatch just because one of those robo-names comes up on a list or search is not aware of the court realities in the difference between information and evidence.

Start with the definition: Robo-signing is the act of unknown parties sitting around a table with a bunch of rubber stamps and pens. They receive instructions from the people who hired them as to which name to sign and what stamp to use. They forge the signature of the person whose name has been supplied by their employers, who in turn are working for the Wall Street Banks. Each person who signs a name does so in their own writing and many simply disguise their writing so the forgery is not traced to them.

Robo-signing is not the act of one person signing a lot of documents without reading them. It is the act of falsely presenting a person’s name who has no knowledge their signature is on any particular document.

When you go into court, pointing out the name of a person on the robo-list, you are inviting a dismissal of your claim. Without more, the signature on YOUR documents might be valid. The presumption, especially if it is notarized, is that the signature is valid. So simply identifying the presence of a person whose signature was robo-signed on OTHER documents doesn’t prove and is not evidence that the signature on YOUR documents is not genuine. Several people are making the error of assuming that the Judge will automatically accept the robo-list as evidence of the fabrication and forgery. Like the Banks, you need to lay a proper foundation for the evidence you want to submit with a live witness.

VOID AND VOIDABLE: There is a huge difference between the two. Most lay people regard a robo-signed document as void, and indeed the judge might so decide — but only because all the facts showed that the foundation for authenticity of the document was lacking merit. THAT is an example of a voidable document — i.e., a document whose effect will or might be considered legal in the absence of a successful challenge to the document. Void documents are rare. Those are documents that, under the law of the jurisdiction in which they were found, are declared void on their face because of some defect apparent on the face of the instrument. Even a law that says a document is void usually means that you must challenge it, which procedurally makes it voidable, not void. A void document is one in which any judge or even a clerk would ignore and refuse to consider or record.

The witness must have personal knowledge, under oath, or an expert opinion that will stand up in court. The piece that is missing is the laborious task of digging up not only 18 different signatures attributable to one person, but also the task of showing a signature that has a Presumption of authenticity like the signature affixed to the named person’s own mortgage or other public document. Then you could say to the Judge that you have a signature of Linda Green on the mortgage she has, and that it does not match any of the signatures you found on 18 other documents, INCLUDING THE ONE IN YOUR CASE.

IT IS ONLY WITH THE ADMISSION OF REAL EVIDENCE THAT THE TRIAL JUDGE OR APPELLATE COURT WILL SEE A RECORD OF PROOF SUPPORTING YOUR ALLEGATIONS. A LIST FROM ANOTHER STATE DOESN’T PROVE YOUR CASE. THE PERSON MIGHT HAVE STARTED BY ACTUALLY SIGNING DOCUMENTS AND THEN IT MORPHED INTO DOZENS OF OTHER PEOPLE SIGNING HER NAME. WITHOUT PROOF, THE ANSWER IS MERE SPECULATION AND WILL WORK AGAINST YOU IN COURT.

Then you have the issue of what does this mean, assuming you prove the likelihood of fabrication and/or forgery? You just understand and have a competent report from analyst that traces the chain of title to the property and traces the chain of title to the alleged loan and then traces the money trail in order to show that the securitization of this loan was a faked. Only then if you have made your case regarding the failure of the securitization parties to legally transfer the obligation and legally document the obligation with a legally binding note — only then can you attack the issue of whether the lien was legally perfected or if it is fatally defective.

A statement from an incompetent expert whose credentials cannot withstand cross examination or some other self proclaimed expert or analyst will not be given any weight at all in the proceedings and will likely not be admitted into evidence, a decision that the appellate court is likely to affirm. This is how we reach “bad law” decisions because the litigant, the lawyer or the service provider giving the information has only provided information, not evidence. Additional statements from the service provider that a document is void is not necessarily correct. each state varies, which is why you need to check with an attorney licensed to practice in the jurisdiction in which the property is located.

Robo-signing is most probably an illegal, even criminal act depending upon which state the property is located in. But the existence of robo-signing, even if you find that your documents show the name of someone whose name was used in robo-signing does not prove they did not sign it. Each case has its own evidence. The litigant and their attorney must be prepared to offer the document into evidence along with testimony in which the credibility and authenticity of the document is cast into doubt. Some judges who are already disposed to ruling for the borrower might be more lenient than others.

But it is still true that most judges are not predisposed in favor of borrowers and that they will certainly apply the rules and laws of evidence very strictly, particularly strict adherence to the laws of evidence is the argument that got you to the point that the authenticity of the signature, notary and witnesses is a question of fact, requiring an evidentiary hearing. when it comes down to it, the party who dug up the list of robo-signers is NOT going to be able to defend a statement that the document is void or even that ti was forged or fabricated. This is because the researcher is not an expert in title, not a lawyer and not possessed with any personal knowledge cornering the signature on the document in question.

That said, the work of these researchers is invaluable because it points the way for the litigant and their lawyer to ask questions in discovery, if you can get that far. In most cases, making assumptions from the information you have can, with the help of properly worded discovery requests, convert that information into evidence. You must realize that the mere report does not relieve you of the burden of proving your case.

Research and reporting on robo-signing is no substitute for the COMBO title and securitization search, report and analysis. It is a valuable adjunct to it. The COMBO provides the context in which the presence of robo-signing can be shown to be important — like a substitution of trustee in which the document is shown to be bogus. There, the COMBO report will show that the actions of the pretender were with full knowledge that they were not the creditor and that the document trail and the money trial go into multiple directions, none of which meet. All actions flowing from a false substitution of trustee (and there are many of them, if not most) are voidable if you properly object, keep the burden of proof on the pretender because you know the document cannot be authenticated. If the Judge allows it in anyway then you must bring evidence into court that will destroy the pretender’s prima facie case.

Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud | Tagged: bankruptcy, borrower, countrywide, disclosure, discovery, evidence, fabrication, foreclosure, foreclosure defense, foreclosure offense, foreclosures, forgery, fraud, information, LOAN MODIFICATION, modification, quiet title, rescission, RESPA, robo, securitization, TILA audit, trustee, WEISBAND | 26 Comments »

Statistics, Index, and the Power of Information

Posted on May 17, 2008 by Neil Garfield

CONVERSION FROM INDEX TO REALITY

Obama’s call for “TRUTH” is a simplified statement that calls into question the manner in which information is collected, the way it is presented and the manner in which it is disseminated to the public.

Underlying this simple call for integrity is his assessment that information flow is fundamentally flawed and that a much needed correction will result in smarter policies that people will give credence to and lend their active support; and that the self-fulfilling negative prophecy we are all living can be turned into a positive climb in quality of life. If you already believe this and understand it, there is no need for you to read this article. If you think his statement is mere lofty rhetoric, you might want to consider my presentation here. For those who want further information, look for books by Von MIses and Rothbard.

The tools of power are all based in information. If the information seems reliable, then the policies foisted on us seem reasonable and even “right.” The basic tool in use today is the statistical index. There is something about an index that when published gains the credulity of the public and even those who know better. It is like a self-fulfilling prophecy.

American political and economic history can be viewed from many perspectives and themes. One of them is the ebb and flow of our collective perception of people, regarded sometimes as labor, sometimes as capital and sometimes not at all.

The current business, economic and political environment has failed to advance or evolve very much for most of the people of the United States, even though women received the right to vote some 80 years ago, and blacks received the right to vote some 40 years ago.

The tendency of certain people to accumulate great wealth and power in any society of any nature inevitably produces an inequality not only of results, but of opportunity. American voters, deprived of the education and information they need to know to make informed decisions, are easily manipulated into voting against their own interests. An educated voter is a nightmare to any power broker, economic cartel, or political cartel.

When adults cannot find states, cities or even continents on a map displaying all the information with proper labeling, it is not hard to see how such people can be easily deceived. And those with power and wealth are eager to deceive them, gaming the electoral process into a utility to maintain and expand their wealth and their power.

The tools of power are all based in information. If the information seems reliable, then the policies foisted on us seem reasonable and even “right.” The basic tool in use today is the statistical index. There is something about an index that when published gains the credulity of the public and even those who know better. It is like a self-fulfilling prophecy.

Whether it is Libor, the inter-bank lending rate index, the CPI, which supposedly measures inflation for consumers, or the indexes used to measure market dominance, we have drawn artificial lines in the sand which allow those in power to continue on their merry way while the rest of us wonder what hit us.

The reality is that Libor, bond ratings, measurements of consumer prices, measurements of those employed, measurements of those unemployed, measurements of those underemployed, productivity, and unfair trade practices are all at substantial variance with reality. Thus the mortgage meltdown, the recession, and another opening of Walmart that kills thousands of jobs, hundreds of companies, thousands of opportunities for innovation, and diminishes our choices to dangerous or inferior products with virtually no service inside the store and no assurances of fair treatment once a sale has been completed.

Walmart is able to achieve this feat and become one of the largest companies in the world by converting labor back into capital despite the 13th Amendment. As with all companies of great wealth they were able to purchase the rights to make their activities legal. In reality, those of us who live in the world created by this cash carry government policy making, we see that there is complete 100% market dominance by Walmart in each town it hits.

But statisticians for Walmart just like the statisticians for the drug companies, look for a sampling that gives them the arguable position that what we see right in front of us, just isn’t there. We are deceived, or so they say. We are not looking at the “big picture.” True, nor should we look at THEIR big picture if we want OUR lives improved. There should be a healthy competition between accumulation of wealth and quality of life. In truth, we are at the bottom of the barrel on the level of that all-important competitive “index.”

By expanding and contracting the area “affected” by a Walmart store one can present a plausible argument that there is no significant effect on competition. We know different but there it is right there in black and white, by the numbers.

By contracting the sampling on a drug study to a specific period of time where nothing adverse happened to patients taking the experimental drug, the drug is pronounced safe and then tens of thousands of people die because it wasn’t safe, as the REST of the data clearly showed. Management of disinformation is the way we are manipulated into voting against ourselves. Political slogans emanate from false statements from apparently reliable sources. And we are all deceived.

By hiring all graduates of regulatory agencies when they retire, a retailer or drug or oil company guarantees that the regulators will not look too deeply into the manner in which such an index is presented. Plausible deniability is the name of the game. The result is you and I get screwed. That is the story of antitrust, the FDA, and dozens of other agencies serving the business sector to the nearly complete exclusion of the safety and welfare of the taxpayers in whose name they operate. It is the equivalent of a hostile takeover of government where the cash and carry system of legislation perpetuates not merely inequality but threats to the safety and welfare of our citizens.

“Inequality” (regardless of how you define the word “equal”) does and will exist in the most despotic regimes following ideology from Marx to Plato’s progeny producing the likes of John Locke and the scholars of the American Revolution. No regime can provide or assure a specific outcome for the life of one or any of its citizens. This article takes no issue with the inevitability of inequality.

Yet we have an innate sense of right and wrong even when we do wrong. We know that “all men are created equal” has a meaning even if we can’t all agree precisely what that means. We know that the U.S. Constitution was written to provide a framework for liberty and freedom but not for women, native Americans and slaves. Women and native Americans counted as zero and black slaves pulled slightly ahead of women at 3/5 of a person, as stated in our constitution.

When the American Slaves were freed about 160 years ago it was, in an economic sense, a conversion of capital into labor.

Slaves had been purchased and traded like bales of cotton or rice or tobacco; they were property, they were allowed no education, no free will, and of course no bargaining power. How would anyone go about “educating” a bale of cotton? It makes no sense. While mystics ascribe a soul to everything, whether we think it is alive or not not, most of us are quite tolerant at denying rights to a bale of cotton, even if it is burned, torn apart are thrown under a bus. In a word, if the cotton “feels” anything, we don’t care and it isn’t likely that we will care anytime soon or that we should. Something in most of us “knows” that the cotton is not worthy of our sympathy, nor do we sense any obligation to it.

The system made perfect economic sense: the cost of production was reduced to the absolute minimum, repairs of equipment and “other capital” (like slaves) were repaired until they were of no further use at which point they were discarded. And unlike other forms of capital, slaves reproduced, thus continually expanding the potential for production without further capital expenditures.

Society organized around this system in such a way that no actual person worked, without being regarded as disgraced. Plantations were worked by slaves, managed by slaves and the wealth generated went exclusively to the Plantation owner. The threat of removing this system, depriving the owners of their possession of slave capital was a threat to the entire way of life that had evolved over 200 years.

It makes sense only if you look at some data and not look at other information. The slave capital system was missing a key ingredient — a prospering rising middle class. The non-slave states had it and they did far better in the long run than any of the slave states many of which are still, 160 years alter, at the bottom of the barrel economically and in quality of life. Their resistance to allowing education to a significant population of former slaves was the equivalent of shooting themselves in the head. It was an all or nothing mentality. Either the slaves would provide free production or we won’t help them do anything.

The “information” Southerners were working with was that blacks were less than human. They thus deprived themselves of the single greatest resource they had to compete in a national economy and eventually internationally. Politicians looking for power found it easy pickings to tease voters into anger and resentment about the Civil War, about slavery, and about Jim Crow segregation. The politicians objectives were simple: maintain power. The rest of the people be damned. (which at the risk of political incorrectness, makes the Reverend Wright’s comment plausible, even if ill-constructed. He wasn’t wrong in what he said. Yet he missed an important point: 40-160 years ago he would have been tortured and hung for making a statement that passed only as a news story now).

The importing of tens of millions of Mexican laborers who had “illegal” status is an inevitable result of big business’ realization that the lock on the poor white and poor black populations was loosening. The grip of fear of discovery gave the leverage needed to convert these workers from labor to something as close to slave capital as would be tolerated in our society.

The mortgaging of America’s future, with all the inevitable taxes that implies, the culture of debt rather than savings, and the withholding and diminishment of education through all walks of life in America is the policy behind the tools of our re-enslavement. The risk now is higher and more widespread than in the 1790’s when women, slaves and native Americans were already discounted capital. Now the government and the business sector have us all targeted as potential “capital” instead of unhappy black men caught like animals and transported like capital with acceptable losses at 1/3 of the cargo.

And the only thing that can stop them is a reversal of the institutionalization of ignorance. We have accepted too long the notion that we don’t know anything but that’s OK nobody else does either. We should all know more than we do, We should all treat life as an opportunity to educate, train and better ourselves. If we do, then everyone wins, including the business sector which needs the rising prosperous middle class to do business, whether it is here or abroad. Why don’t they know that? Because like you, they are just people trying to get the most they can right now. That’s human nature. That is the American way.

Treat every index with suspicion. Test all information against your own anecdotal experience. And don’t let anyone tell you they know more about your life than you do.

Filed under: bubble, CDO, community banks, CORRUPTION, credit unions, currency, education, Eviction, foreclosure, foreign relations, GTC | Honor, inflation, interest rates, Investor, Mortgage, Obama, oil, politics, securities fraud | Tagged: capital, index, information, labor, Obama, Rothbard, slave, Von Mises | 3 Comments »

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