Illusion of Confusion: Dealing with Unresponsive “Responses” in Discovery

The bank playbook is very simple: keep it as complicated as possible. That way the court and even the homeowner will come to rely on what the banks and so-called servicer say about names, places, documents and money. That’s how they sold the initial fraudulent MBS and around 10 million foreclosures.

If you had a high success rate and you succeeded in scaring most homeowners off from contesting fraudulent foreclosures, what would you do? You would keep going based upon a strategy of creating the illusion of complexity. The only really complex thing is the fact that the foreclosing parties make inconsistent assertions not only from case to case but from one pleading to another in one case.

What is simple? That the only two real parties in interest in this whole affair have been investors on one side and homeowners on the other side. Everyone else is an intermediary with little or no authority to do anything — a fact that has not stopped them from nearly destroying our financial system.

For reasons that have been discussed elsewhere on this blog, the acceptance of the illusion of confusion by the courts is NOT rooted in law, as it is required to be, but rather in politics. This isn’t the first time the courts made political decisions and it won’t be the last. But through persistence and good litigation techniques homeowners who went all the way to the end have often prevailed — probably because the judge was too uncomfortable once the real nature of the asserted transactions was revealed.

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I was writing an article on discovery when by coincidence Dan Edstrom who has been our senior most forensic analyst since 2008 forwarded some questions and comments about the discovery process. He understands full well that the discovery process does NOT consist of just asking a question or asking for a document and the other side then gives you all you need to win.

No, the response will be framed to confuse, which is generally enough to make the homeowner or the foreclosure defense walk away. The foreclosure goes though even though it is most likely completely fraudulent.

And the message that goes out to the world is the banks are winning a huge percentage of foreclosures when in fact they pretty much don’t win when the foreclosure is ably contested.  The issue is obvious — not enough people are ably contesting foreclosures.

In discovery it usually starts with interrogatories. And the first question is who is answering the interrogatories. So in one example, the answer was Sally Torres. The response was that Torres was “from” Ocwen Financial Corporation (OFC). She is described as a “representative” of OFC, which leaves open the question of the identity of her employer.

Back to basics — A corporation is a legal person. And THAT means it is not the same as another legal person, as for example Ocwen Loan Servicing (OLS).

So you need to read carefully and not skip the parts that nobody pays attention to — like the answer to the question and the verification where Torres signs the response. There she signs as a “representative” of OLS not OFC. That ,eaves open the same question but also adds another — is she a representative of both legal persons (OFC and OLS)? If so what is the nature of her “agency” for either legal person? If she is not an employee is there a contract?

The answers further state that she is a “Senior Loan Analyst” for OFC and a “Senior Loan Analyst” for OLS. Is it both? How does that work? And of course that gives rise to yet another question — What is a Senior Loan Analyst? Google it.

Job Summary. Responsible for analyzing financial and supporting documents on incoming applications consistent with internal and insurer policies. Evaluate property values based on appraised market prices and recommend or deny mortgages to clients after examining financial status.

Hmmmm. This sounds like a made-up title to impress a judge. The industry definition of a loan analyst describes a job that ends with the approval of a loan. What would a loan analyst know about foreclosure — years after the alleged origination of the alleged loan? More specifically, what did Torres actually know or do with regard to the subject loan? It doesn’t take a genius to speculate about a number of questions:

  • Did Torres actually sign the verification?
  • Why was a loan analyst necessary in the litigation of a foreclosure?
  • Is Ocwen a lender? Why need a loan analyst?
  • What as it that Torres analyzed?
  • Did she review the work of a “Junior” Analyst ?
  • Did someone else draft the answers?
  • Was there anyone who had personal knowledge of the loan history involved with answering the interrogatories?

The kicker in the case I reviewed, was that the notice letters were sent not by any Ocwen entity but by Wells Fargo. The problem here is that most lawyers do not wish to confess their ignorance and therefore don’t follow through with obvious questions. Everything they are seeing is incomprehensible and confusing.

Here is another example right out of a hearsay treatise: The “Plaintiff” in an unlawful detainer (eviction) action makes the assertion that the rental value of the subject property is $1,800 per month and that the only way they know that is from a website called “Rentometer.” How this number is calculated by the website is unknown. Nor do we know if any person was involved. But Judges regularly take this representation to be true, even though it comes from a declarant not present in court.

Here is the rub. If the attorney for the homeowner fails to raise an objection and motion to strike that assertion or representation the objection is waived. But on cross examination of the robo-witness it is fairly easy to show that there is no appraisal or opinion rendered by the witness, nor could there be. It is also fairly easy to establish that the witness has no idea who runs, operates, owns or is otherwise involved with Rentometer.

Like Zillow and other sites, Rentometer does not employ people. It employs computer algorithms that may or may not work in any given situation.

For all we know it is a site set up by the banks that looks professional but is used specifically to extract outsize rents from people defending their property. (thus cutting off income that could be used for an attorney).  It looks like it might be useful but no presumption should arise from the projection by Rentometer unless someone from Rentometer can lay the foundation for the estimate. But that would mean putting a person on the witness stand who is not a robo-witness so the foreclosing party is going to fight against that tooth and nail.

And of course any site that leis exclusively on algorithms could not possibly take into consideration whether the subject property is habitable, the school district, and other factors that apply to both marketability and price. In the case presented it appears that the rental value is zero or in fact negative. That is because the property’s condition is such that nobody would move into it without extensive major repairs and because taxes and maintenance of the exterior would still need to be paid.

And then there is this example: You ask for the documents that support the authority of the alleged new beneficiary to substitute the trustee on the deed of trust. You get back an assignment. But it turns out later, in court, that they are relying upon some additional unrecorded assignments. So you ask for the additional unrecorded assignments and the response is essentially “We already gave you the assignments.” In  this case with 1 recorded assignment and 2 unrecorded assignments their answer is exactly 1/3 true and 2/3 untrue. And THAT is why you need to be prepared to compel their response by a specific court order pointing to those documents and any others that pertain the request for production.

The most challenging thing after the foreclosure sale is to prove it should never have taken place. But it is possible and necessary to do that if you want the property or you want leverage for a settlement. You are challenging circular reasoning.

Their argument is that they followed the rules and appointed a substitute trustee who sold the property. Your answer is that the new ‘Beneficiary” was not a beneficiary, had no right to substitute the trustee and thus no right to file a notice of sale (nonjudicial states).

Here is where legal presumptions point the court in the wrong direction. Because the sale took place and it was “facially” valid, the presumption adopted by the court is usually that there was a sale even though you are contesting that narrative. You say that a sale didn’t take place, particularly where there was “credit bid” on behalf of an entity that had no interest in the debt and therefore could not possibly submit a credit bid.

Lastly the sleight of hand trick that is so successful for the banks is the assertion or inference that there is a trust. In this case US Bank is asserted, probably without tis knowledge, as the trustee of certificates which is no trusteeship at all. Even if you slip in “the holders of certificates” they still have not named a beneficiary.

So the common error being made out there is to ask for answers and documents and so forth and accepting the response from the servicer or alleged servicer. Back to basics: the  first question should be “please identify the person or entity that is the [Plaintiff (judicial state or any eviction action) / beneficiary on the deed of trust (nonjudicial states)].

Then the next question should be “Is the party executing the verification of these interrogatories an employee, officer of said Plaintiff/Beneficiary? They will respond with gibberish because the real party in interest is a remote “Master Servicer” of a trust that doesn’t exist.

And of course “Where are the records of the Plaintiff/Beneficiary that relate to the subject alleged loan?” Once again they will respond with gibberish because they want the court to accept the fabricated records of Ocwen as though they were the records of the Plaintiff/Beneficiary whose books and records do not exist. The closer you get the more likely they are to walk away or offer a settlement that includes a seal of confidentiality. And yes I have seen this scenario thousands of times.










Garmin factors: Proving Your Need to Force the Opposition to Respond to Discovery Requests

For further information please call 954-495-9867 or 520-405-1688


see Garmin Factors to Justify Order Compelling Discovery

Lawyers Practice Note: Compelling discovery is the most important part of foreclosure defense. The current strategy of the banks is to object to practically everything. Set down their objections for hearing and file a motion to compel. But in your motion to compel you need to establish both facts and law entitling you to the answers to interrogatories, production of documents and answers to requests for admissions. The last thing these banks want is to open up their books and show there was no consideration for any of the paperwork that pretends there was funding of the original loan or that there was no consideration for any alleged sale — because in the absence of that there was no loan and there was no sale. That would make them strangers to the transaction clearly lacking standing.

The first Garmin factor requires that the party requesting discovery should already be in possession of evidence showing, beyond mere speculation, that something useful will be uncovered by the discovery requests. Here, the patent owner had only established the “mere possibility” that something useful would be found, which was not enough.

[Editor’s Note: If no holder in due course has been alleged or there is an absence of documentation proving the essential elements of a party entitled to enforce, that might be enough to convince a judge to compel discovery. If you can show conflicts in the documentation already provided by your opposition, that should close the deal.]

the third Garmin factor, provides that it is not in the interest of justice to require a party to produce information the other party can reasonably figure out or assemble on its own without additional discovery of the opposite party.

[Editor’s Note: The actual best evidence of the existence of a true transaction is the canceled check, wire transfer receipt or ACH confirmation. This is solely within the care, custody and control of a party seeking to foreclose — and if it isn’t available, they should not be in court because they cannot prove standing]

the fifth Garmin factor, which provides that any additional discovery should be “sensible and responsibly tailored according to a genuine need.”

[Editor’s Note: Since most defenses are predicated on the real ownership of the debt, the real status and identity of the creditor, and the real rights to the note and mortgage, if you state your narrative in your motion it is apparent that this goes to the core of your defense. By denying the request to compel discovery the court is effectively denying your defense even after it has survived legal attack by your opposition when they moved to strike your affirmative defenses.]

Livinglies Recalibrates Forensic and Litigation Support Services

Responding to specific requests from lawyers and homeowners, the livinglies store has changed its offering.

You can still get the old Combo of just a title and securitization report, but we have added some levels and services to meet the demand for our services. Of course pricing has been adjusted to reflect the increased workload. Actual litigation support is provided throughout the country to any attorney by Garfield, Gwaltney, Kelley and White (GGKW) with offices now in Broward County and Leon County. We will soon have offices in the Florida Panhandle and Dade County. I’ll be posting separately on each office and the attorneys we have selected to litigate in accordance with our requirements.

GGKW represents homeowners throughout the state of Florida. Do not ask us to provide the full range of litigation support if you are a pro se litigant, even if your case is in Florida. You would be asking us to provide services that might be the unauthorized or unethical practice of law in states where we are not licensed. It would also be a bad idea because you cannot expect an attorney from another state to know the laws of your state, how they are applied in your courts, and the differences between individual judges. Sometimes local rules are dispositive of cases. Florida homeowners can get some additional assistance from GGKW or the livinglies store, but there is no good substitute for an attorney who knows and can argue rules of procedure and laws of evidence as they relate to your case.

The first additional the Combo offering is the Qualified Written Request and Debt Validation Letters. These are rising in importance and an increasing number of lawyers are asking us to prepare these. We can’t send them out but we can prepare them for the signature of the homeowner. We ask more pointed questions about whether the originator actually loaned money to the homeowner — that is, whether there was any transaction between the homeowner and the party stated on the note and mortgage (or deed of trust). This has grown in importance because of the absence of a fundamental allegation by the pretender lenders — that someone in their chain of paper actually entered into an actual transaction (offer, acceptance, consideration and execution) with the alleged borrower. It appears in many cases that the actual funding of the loan was a stranger to the paperwork and that the parties on the paperwork are strangers to the actual transaction.

We also are offering affidavits and declarations from the auditors or experts, including myself, together with a consultation to answer questions on the methods used and the conclusions to be drawn. Where an attorney for the homeowner is available during the consult, the homeowner will hear suggestions on specific strategies and tactics for the battle in court.

We are also just now adding to the package, Freedom of Information requests to the FDIC, OTS, OCC and the Federal Reserve, where applicable. In all likelihood the request you make about the results of their investigations against the banks that led to the Consent Orders and any filings after those orders were entered will be met with some sort of stonewalling. After all, the investigator grilled by Senator Warren admitted to finding thousands of wrongful Foreclosures but refused to tell her or anyone else in Congress which mortgages were effected or the names of homeowners who were illegally thrown out of their homes. It is important to note that these investigations, like the San Francisco study, found serious defects in which the foreclosure should never have happened.

The the response to FOIA requests will undoubtedly require you to push the agency in court to make the disclosures. And interrogatories directed at compliance with the Consent Orders may reveal the actual findings and the names of homeowners who are living outside the homes they still should ow and possess.

We recommend that the other companies providing these services follow our lead. We believe it will lead to better results and a more comprehensible presentation in Court.

Of course I need to remind you that nothing in this article nor the services and products on the store are a substitute for a licensed attorney. You should take no action at all without consulting with a licensed attorney, hopefully one that is familiar with the issues of securitized loans. Most of these cases are being resolved on the basis of the the rules of civil procedure and the laws of evidence. This is above the head of most pro se litigants. Failure to at least consult with an attorney licensed interest state in which your property is located could well result in losing a case you could have otherwise won.

A New Set of Interrogatories:






  1. Please identify the financial institution, contact information and account manager and contact information for any accounts maintained in any checking, savings, or investment account in a demand deposit account or otherwise in the name of U.S. Bank as Principal Trustee for any entity claiming an interest in the subject loan, on behalf of the holders of any certificated or uncertificated interests in J.P. Morgan Acquisition Trust 2–6-CH1, Asset backed Pass-Through Certificate series 2006-CH1 (hereinafter the Pool) with sufficient specificity that fulfills the requirements for you to identify and produce documents or witnesses related to such account(s) upon subpoena.
  2. Please state whether the Pool is a trust and if so, under the laws of which state the trust was created, registered or otherwise lawfully created.
  3. Please state the address and phone number for the Pool or its manager.
  4. Please identify the original document by which U.S. Bank claims to be Trustee for the Pool, including the current location of said documents and the name of the party, person or entity that has current possession of said document with sufficient specificity.
  5. Please state and identify the source documents that reflect the transactions relating to the Pool as to all receipts and disbursements.
  6. Please identify all parties or entities that engaged in any transaction in which a guarantor, co-obligor, or other third source of payments was created in any way related to the subject loan or the subject Pool.
  7. Please identify the person or persons, including contact information, telephone number, address, employer, and email who provided any information that was used to compute the claim of the amount due on the subject alleged loan.
  8. Please identify the source documents utilized by any party or person who participated in computing the amount claimed as due for the subject loan.
  9. Please identify the person or persons serving as the record-keeper and bookkeeper for the Pool, including contact information, phone number, address and employer.
  10. Please identify the name of the auditing firm that reviewed or audited the financial information relating to the subject loan or the Pool.
  11. Please identify the documents by which the closing agent on the subject loan received instructions, wire transfer receipts, or any other documents or instruments that would show the source of funding for the loan, including the location of such documents, the person who serves as record keeper of those documents, their contact information, address and phone number.
  12. Please state whether or not the payee on the promissory note proffered by Plaintiff was the source of funding of the loan. The source of funding means the party or parties who provided the actual money that was sent to the closing agent for the closing of the loan.
  13. Please state whether the source of funding and the payee on the alleged note were the  same parties.
  14. Please state whether the source of funding and the mortgagee on the alleged note were the same parties.
  15. Please state whether the party identified as the “lender” on the promissory note in the subject alleged mortgage loan transaction performed due diligence in accordance with industry standards for the underwriting of the loan.
  16. If Your answer is in the affirmative to the previous question please identify the persons who were responsible or who provided services or performed any tasks with respect to performing said due diligence including their contact information, telephone number, address and employer.
  17. Please state the name and contact information of the person or persons in possession, care custody or control of the underwriting file for the subject loan.
  18. Please state whether the underwriter, Master servicer, subservicer or any other party relating to the pool received or disbursed any funds relating to the pool, and if so identify the receipts or disbursements by generic type — i.e., payments from borrower, funding from from lending source, insurance, credit default swaps, buyouts, buy-backs,, insurance premiums, fees or costs.
  19. Please state the name of the person or persons who decided how such third party payments or disbursements should be allocated to or against the pool.
  20. Please state the policy for treatment of receipts of proceeds from the above-stated third party payments and disbursements as to how such money was or was not allocated to the pool.
  21. Please describe any insurance policy issued with respect to the pool or the securities issued by the pool including the location, person in custody of said policy and their contact information, phone number, address and employer.
  22. Please describe any credit default contract issued with respect to the pool or the securities issued by the pool including the location, person in custody of said contract and their contact information, phone number, address and employer.
  23. Please describe any other contract, policy or instrument that resulted in payments or disbursements with respect to the pool or securities issued by the pool including the location, person in custody of said policy and their contact information, phone number, address and employer.
  24. Please state whether a current loan receivable account has been maintained by any party with respect to the subject alleged loan other than the subservicer who received payments from the borrower.
  25. Please state the party or parties to whom payment was directed by the subservicer, when such payments started, and when such payments stopped.



New Workshop on Motion Practice and Discovery




May 23-24, 2010 2 days. 9am-5pm. Neil F Garfield. CLE credits pending but not promised. Register Now. Seating limited to 18. INCLUDES LUNCH AND EXTENSIVE MANUAL OF FORMS, NARRATIVE AND CASES. An in-depth look at securitized residential mortgages and deeds of trust. Latest cases on standing, nominees, splitting note from security instrument, bankruptcy strategies, expert declarations, forensic analysis reports.

Lawyers, paralegals, experts, forensic analysts will all benefit from this. This workshop includes monthly follow-up teleconferences and continuing on-going support with advance copies of articles, cases and analysis.


Sample Interrogatories



——————————————————————X                Civil Action

Deutsche Bank National Trust Company, As Trustee Of

Argent Securities, Inc. Asset Backed Pass Through Certificates, Series 2004-PW1

Docket Number: XXX





XXX; John Doe,

Husband Of XXX                                                                            XXX Avenue

Rosedale, NY 11422

Defendant(s)/Pro Se ——————————————————————X


i). Defendant, XXX, serves these interrogatories on Deutsche Bank National Trust Company, as authorized by Case Management Order dated September 30, 2009, and by the Federal Rule of Civil Procedure 33. Deutsche Bank National Trust Company must serve an answer to each interrogatory separately and fully, in writing and under oath within 30 days after service to: XXX, XXX Ave., Rosedale, NY 11422.


ii). These requests for interrogatories are directed toward all information known or available to Deutsche Bank National Trust Company – not its lawyer, Ralph F. Casale, Esq. – including information contained in the records and documents in Deutsche Bank National Trust Company’s custody or control or available to Deutsche Bank National Trust Company upon reasonable inquiry.

iii). Each request for interrogatory is to be deemed a continuing one. If, after serving an answer, you obtain or become aware of any further information pertaining to that request, you are requested to serve a supplemental answer setting forth such information.

iv). As to every request for interrogatory which an authorized officer of Deutsche Bank National Trust Company fails to answer in whole or in part, the subject matter of that request will be deemed confessed and stipulated as fact to the Court.

v). Kindly attach additional sheets as required identifying the Interrogatory being answered.  You have a continuing obligation to update the information in these Interrogatories as you acquire new information. If no such update is provided in a reasonable period of time that you acquired such information, it may be excluded at trial or hearing.


vi). “You” and “your” include Deutsche Bank National Trust Company and any and all persons acting for or in concert with Deutsche Bank National Trust Company.

vii). “Document” is synonymous in meaning and equal in scope to the usage of this term in Federal Rule of Civil Procedure 34(a) and includes computer records in any format. A draft or non-identical copy is a separate document within the meaning of this term. The term “document” also includes any “tangible things” as that term is used in Rule 34(a).

viii). Parties. The term “plaintiff” or “defendant”, as well as a party’s full or abbreviated name or a pronoun referring to a party, means the party and, where applicable, (his/her/its) agents, representatives, officers, directors, employees, partners, corporate parent, subsidiaries, or affiliates.

ix). Identify (person). When referring to a person, “identify” means to give, to the extent known, the person’s full name, present or last known address, telephone number, and when referring to a natural person, the present or last known place of employment. Once a person has been identified in compliance with this paragraph, only the name of that person needs to be listed in response to later discovery requesting the identification of that person.

x). Identify (document). When referring to a document, “identify” means to give, to the extent known, the following information: (a) the type of document; (b) the general subject matter of the document; (c) the date of the document; (d) the authors, address, and recipients of the document; (e) the location of the document; (f) the identity of the person who has custody of the document; and (g) whether the document has been destroyed, and if so, (i) the date of its destruction, (ii) the reason for its destruction, and (iii) the identity of the person who destroyed it.

xi). Relating. The term “relating” means concerning, referring, describing, evidencing, or constituting, directly or indirectly.

xii). Any. The term “any” should be understood in either its most or its least inclusive sense as necessary to bring within the scope of the discovery request all reasons that might otherwise be construed to be outside of its scope.


1. Please identify each person who answer these interrogatories and each person (attach pages if necessary) who assisted, including attorneys, accountants, employees of third party entities, or any other person consulted, however briefly, on the content of any answer to these interrogatories.


2. For each of the above persons please state whether they have personal knowledge regarding the subject loan transaction.


3. Please state the date of the first contact between Deutsche Bank National Trust Company and the borrower in the subject loan transaction, the name, address and telephone number of the person(s) in your company who was/were involved in that contact.


4. Please identify every potential party to this lawsuit.


5. Please identify the person(s) involved in the underwriting of the subject loan. “Underwriting” refers to any person who made representations, evaluations or appraisals of value of the home, value of the security instruments, and ability of the borrower to pay.


6. Please identify any person(s) who had any contact with any third party regarding the securitization, sale, transfer, assignment, hypothecation or any document or agreement, oral, written or otherwise, that would effect the funding, closing, or the receipt of money from a third party in a transaction that referred to the subject loan.


7. Please identify any person(s) known or believed by anyone at Deutsche Bank National Trust Company who had received physical possession of the note and allonges, the mortgage, or any document (including but not limited to assignment, endorsement, allonges, Pooling and Servicing Agreement, Assignment and Assumption Agreement, Trust Agreement,  letters or email or faxes of transmittals  including attachments) that refers to or incorporates terms regarding the securitization, sale, transfer, assignment, hypothecation or any document or agreement, oral, written or otherwise, that would effect the funding, or the receipt of money from a third party in a transaction, and whether such money was allocated to principal, interest or other obligation related to the subject loan.


8. Please identify all persons known or believed by anyone in Deutsche Bank National Trust Company or any affiliate to have participated in the securitization of the subject loan including but not limited to mortgage aggregators, mortgage brokers, financial institutions, Structured Investment Vehicles, Special Purpose Vehicles, Trustees, Managers of derivative securities, managers of the company that issued an Asset-backed security, Underwriters, Rating Agency, Credit Enhancement Provider.


9. Please identify the person(s) or entities that are entitled, directly or indirectly to the stream of revenue from the borrower in the subject loan.


10 Please identify the person(s) in custody of any document that identifies the loan servicer(s) in the subject loan transaction.


11. Please identify any person(s) in custody of any document which refers to any instruction or authority to enforce the note or mortgage in the subject loan transaction.


12. Other than people identified above, identify any and all persons who have or had personal knowledge of the subject loan transaction, underwriting of the subject loan transaction, securitization, sale, transfer, assignment or hypothecation of the subject loan transaction, or the decision to enforce the note or mortgage in the subject loan transaction.


13. Please state address, phone number, and employment history for the past 3 years of Tamara Price, Vice President, Argent Mortgage Company, LLC, “designated as the Assignor” of the mortgage loan to Deutsche Bank National Trust Company (Assignment of Mortgage recorded in Essex County Register’s Office on June 25, 2008).


14. Please state the date on which Argent Mortgage Company, LLC (originator) sold the mortgage loan to Ameriquest Mortgage Company (Seller and Master Servicer).


15. Please state the date on which Ameriquest Mortgage Company (Seller and Master Servicer) sold the mortgage loan to Argent Securities, Inc. (Depositor).


16. Did Argent Mortgage Company, LLC (originator) or previous servicers of this account receive any compensation, fee, commission, payment, rebate or other financial considerations from Ameriquest Mortgage Company (Seller and Master Servicer) or any affiliate or from the trust funds, for handling, processing, originating or administering this loan?


17. If yes, please describe and itemize each and every form of compensation, fee, commission, payment, rebate or other financial consideration paid to Argent Mortgage Company, LLC, the originator or previous servicers of this account by Ameriquest or any affiliate, or from the trust fund.


18. Please identify any party, person or entity known or suspected by Deutsche Bank National Trust Company or any of your officers, employees, independent contractors or other agents, or servants of your company who might possess or claim rights under the subject loan or mortgage and/or note.


19. Please identify the custodian of the records that would show all entries regarding the flow of funds for the subject loan transaction prior to and after closing of the loan. (Flow of funds, means any record of money received, any record of money paid out and any bookkeeping or accounting entry, general ledger and accounting treatment of the subject loan transaction at your company or any affiliate including but not limited to whether the subject loan transaction was ever entered into any category on the balance sheet at any time or times, whether any reserve for default was ever entered on the balance sheet, and whether any entry, report or calculation was made regarding the effect of this loan transaction on the capital reserve requirements of your company or any affiliate.)


20. Please identify the auditor and/or accountant of your financial statements or tax returns.


21. Please identify any attorney with whom you consulted or who rendered an opinion regarding the subject loan transaction or any pattern of securitization that may have effected the subject loan transaction directly or indirectly.


22. Please identify any person who served as an officer or director with Deutsche Bank National Company or Argent Mortgage Company LLC commencing with 6 months prior to closing of the subject loan transaction through the present. (This interrogatory is limited only to those people who had knowledge, responsibility, or otherwise made or received reports regarding information that included the subject loan transaction, and/or the process by which solicitation, underwriting and closing of residential mortgage loans, or the securitization, sale, transfer or assignment or hypothecation of residential mortgage loans to third parties.)


23. Did any investor/certificate holder approve or authorize foreclosure proceedings on XXX’s property?


24. Please identify the person(s) involved or having knowledge of any insurance policy or product, plan or instrument describing over-collateralization, cross-collateralization or guarantee or other instrument hedging the risk of default as to any person or entity acting as an issuer of any securities or certificates. (Such instrument(s) relate to the composition of a pool, tranche or other aggregation of assets that was created, included or referred to the subject loan and the pool or aggregation was transmitted, transferred, assigned, pledged or hypothecated to any entity or buyer. A person who “transmitted, transferred, assigned, pledged or hypothecated” refers to any person who suggested, approved, received or accepted the composition of the pool or aggregation made or confirmed representations, evaluations or appraisals of value of the home, value of the security instruments, ability of the borrower to pay.)


25. Please identify the person(s) involved or having knowledge of any credit default swap or other instrument hedging the risk of default as to any person or entity acting as an issuer of any securities or certificates. (Such instrument(s) relate to the composition of a pool, tranche or other aggregation of assets that was created, included or referred to the subject loan.)


Submitted by:  XXX

XXX  Ave

Rosedale, NY 11422


I, I, XXX certify that on this 29th day of the month of October, 2009.

1. A true copy of the 10-page Request for Interrogatories was served on The New Superior Court of New Jersey, Chancery Division – Essex Vincinage, at 212 Wasington Street, Eighth Floor, Newark, New Jersey.

2. A copy of the foregoing was mailed on October 28, 2009 to

Dated: Queens New York

This _________ day of ___________ 2009    XXX


Rosedale, NY 11422

Florida Orders All Homestead Property Foreclosures into Mediation

See AOSC09-54_Foreclosures.

A good step in the right directions.

I would add that you should be very careful that you don’t get trapped into the “lender narrative.” The Judges are going to very receptive and even enthusiastic about referring these cases to mediation, so don’t annoy them with motions, pleadings or hearings that attempt to circumvent the mediation process. As for whether the order will be applied to existing cases, it remains to be seen how Florida Judges react to this Administrative Order.

CAUTION: The “Lender narrative” tries to focus attention exclusively on when you made your last payment and whether the obligation was created when you purchased the financial product (Mortgage Loan). It avoids all issues as to who is the creditor and how you could get a FULL accounting of all financial transactions in the securitization chain that either were or should have been allocated to your loan or the pool to which your loan was assigned. (Their tactic has been to keep the focus on the small window in which one servicer was receiving payments from the homeowner, ignore payments made on behalf of the homeowners, and to effectively bar you from inquiring as to whether they received any money from bailouts, AIG, or even if they turned over the payments you DID make to the creditor).

In order to avoid getting trapped into the “Lender narrative” I would suggest a number of possible steps. First, of course is get all your information together. There is an intake form on this blog that gets you to create a narrative of your own mortgage transaction. Second, get a forensic audit or review/analysis or TILA audit. Third, get a declaration from an “expert witness”. Consult with local counsel as this administrative order might be augmented by local rules. Several Circuits have issued their own administrative orders that have not yet been revoked or suspended.

If you are permitted to do so by the Judge, file a motion to dismiss the foreclosure suit and if that is denied then file your defenses, affirmative defenses and counterclaims. You don’t want to put yourself in the position where you are are effectively in default and give the plaintiff an opportunity to petition the court for entry of a default final judgment.

Lastly, in ALL events, I would seek answers to the basic questions: the identity of the creditor and the full accounting for ALL transactions allocated or could be allocated to your loan or the pool that your loan was alleged assigned. The QWR and DVL ought to accomplish this but it is rarely regarded seriously by the Plaintiff and Judges seem reluctant to enforce it because of their unfamiliarity with RESPA, TILA, UCPA etc. So you might need to file interrogatories that are limited to (I think) 25 questions including sub-parts. A Request to produce would also be needed.

Preliminary discovery (Interrogatories, Request to Produce, possibly Request for Admissions) should be directed at the single issue of identifying the decision-maker who could attend mediation for the “lender” side of the case.

Your position should be that as a result of the forensic review and the advice of your expert, an issue of fact exists — conflicting representations between those proffered or plead by Plaintiff’s counsel and the information you have obtained from experts. At this stage you should not try to win your case by having the Judge agree with you that the foreclosure is a fraud. Stay away from that assertion until you can really back it up.

The point is simply that an issue of fact exists that affects the mediation. Only true parties  to the dispute can be decision-makers. Only the creditor is a true party with that power unless it has been legally and irrevocably delegated to another party. Either way you need the idenity of the creditor(s), their contact information and the documentation that shows that the Plaintiff is empowered to make final decisions regarding this loan.

You need to conduct limited EXPEDITED discovery to either confirm the Plaintiff as the creditor or identify the creditor. Recent news reports of suits against intermediaries by bondholders and instructions from bondholders to fire servicers and other intermediaries who breached their fiduciary duties to the investors indicate a question of fact as to whether the party who filed this suit is a creditor, representing a creditor with authority to do so, whether they have decision-making authority and even whether the attorney appearing represents the Plaintiff or any other party.

Your point is that there is a question of fact that must be answered in discovery in order to proceed with compliance with the Supreme Court’s Order and that you are only asking for information the Plaintiff should already have if they properly field the foreclosure suit. You want the creditor’s name and contact information so you can (a) attempt to settle privately (b) comply with Federal mandate on seeking modifications, and (c) comply with Florida mandate on mediation. How can you do this if the creditor is not present? How can you enter into any agreement with a party whose authority to bind the creditor is in question?

You might need to file a motion with the Court and notice it for motion calendar. The motion would simply ask that you be permitted to conduct expedited limited discovery to facilitate the mediation process.

How to Attack MERS and WIN!




This news is irresistible. MERS is all but dead with this single decision (see below). Here are the salient points:


  1. MERS is not a beneficiary even if the mortgage deed or deed of trust states otherwise.
  2. MERS lacks standing in bankruptcy to seek relief from stay.
  3. MERS lacks ANY financial interest in
    1. the obligation
    2. the note
    3. the mortgage
    4. any assignment, allonge (often misidentified as an assignment, indorsement etc.
  4. MERS cannot acquire rights to foreclose unless it acquires a REAL financial interest
    1. In a non-judicial state
    2. In a judicial state
  5. MERS’ Appearance on ANY instrument in the securitization chain clouds the homeowner’s title by extension of the reasoning set forth in the case decision reported below.
    1. MERS’ appearance on the deed of trust renders the mortgage deed or deed of trust invalid
    2. MERS’ appearance on the deed of trust renders the mortgage deed or deed of trust VOID
      1. This means there is no security instrument even if the obligation is still outstanding
      2. This means there is no security instrument even if the note is still outstanding
      3. This means the obligation arising from the funding of the “loan” or”security” to or for the benefit of the homeowner is UNSECURED.
      4. This means that there is no legal procedure to take property — real or personal, tangible or intangible — by virtue of using non-judicial procedure or judicial procedure — unless the creditor (i.e. — the one who advanced actual cash for the funding of the obligation) gets a money judgment against the homeowner — a process which by definition requires the creditor to use exclusively judicial procedures in which they must
        1. A Lawsuit properly served
        2. Allegations that if taken as true would entitle the creditor to a money judgment (e.g. “I gave money for the benefit of this homeowner and I never got the money back from anyone”). By the way this debt, even if they get ajudgment, is dischargeable in bankruptcy.
        3. Attachments to the lawsuit of ALL documents that conform to the allegations
        4. Your Defenses, affirmative Defenses and Counterclaims
        5. Discovery on both sides:
          1. Interrogatories — how they know, what they know, who they know, where did the person signing the interrogatories get their information — when were they hired, by whom, when did they work for MERS, how many paychecks did they get from MERS etc., what documents do they rely upon, what do THEY call those documents, where are those documents, who has them, what is the title of that person, by whom are they employed, what’s their telephone number address etc.
          2. Investigation: on any (AND ALL) signature follow the lead of one of our lead homeowners — find a mortgage or other document filed in the county recorders office and see if the signature matched the one in which they signed, notarized, or witnessed.
          3. Who prepared their website. Where is the source code? Who has the current source code, the prior source codes and any source codes or emails with meta data that will enable you to determine what parties were involved in the preparation of the website, where MERS, for example, advertises that you can use their name but they will never make a claim against the property or for the money.
          4. Request to produce using their answers to interrogatories
          5. Subpoena Third Parties for records with option to give you copies
          6. Request for admissions: VERY POWERFUL weapon when used properly
          7. Notice of deposition
          8. Request for access to their network servers and workstations for forensic examination
          9. Notice of deposition from the people identified in their answers to interrogatories
          10. Motions to compel
          11. Motions for Contempt
          12. Motions to Strike MERS pleadings
          13. Motions to Strike the pretender lender’s pleadings
          14. Motion to enter default after judge orders pleadings struck
          15. Motion to enter default final judgment
          16. Motion for Summary Judgment on your counterclaims including quiet title, money damages for violations of TILA, RESPA, SEC, etc.
          17. Recording final judgment in recorder’s office

Foreclosure Defense: Lost Note Shananigans

Jose wrote:

Thanks for the input K, I filed for BK today pro se I was totally unable to find and attorney with the enough guts in Virginia to take on these crooked lenders. There also another issue in our wonderful state, there is a statute that allows for the lenders to provide a lost note affidavit, most of these affidavits are fraudulent, these lenders and servicers never saw or even received this documents, they are being signed and notarized in back room offices, and using them to foreclose on all these families that were lied and cheated of all their life savings. I poured more than $500,000 of my savings into our home, for these lenders to take me to the cleaners. What can realistically be done about these lost note affidavits, contest their validity?. I did my mortgage audit and that is the best tool I have found, most attorneys unfortunately are intimidated by the Rocket Docket here in Virginia.

EDITOR’S NOTE: The answer is that you don’t just ask for it you demand it. And if they don’t give it to you you sue them in your State Court and saying there are numerous misrepresentations that were made to you and then you issue a Request to Produce, along with interrogatories that demand identification of the person who signed the lost note affidavit and when they were hired and where the note was placed and the entire chain of custody.

You are right, most of those affidavit are bogus, signed by people who knew nothing about the closing. Don’t give up on finding a decent attorney. Keep looking. Whether young or old, you want someone who wants to take on the system and draw blood.

Good for you for getting the audit done. You took the right steps!!!


Foreclosure Defense and Offense: Lost Document Affidavit

This is reply to a question which has been posed to us recently by several readers through email and at least one comment. We have advised demanding the alleged lender (the one suing you in foreclosure or who has scheduled the sale) allow you to inspect and provide you copies of original documents so they can prove their standing or authority to proceed — or you can assert they have no standing, no authority because they don’t have the supporting documentation, they don’t own the loan anymore, and they have no written authority to proceed along with bona fide original documentation showing the assignment.  If they do not respond or admit they don’t have the documents, the case is over, you win they lose.

By the way, they are definitely NOT going to want to show you or anyone else that assignment. It has things in it that they don’t want public. 

But what if they come back with something — just not what you asked for, like an affidavit that says the original was lost? The answer is that an affidavit which does not contain an explanation for what happened to the original and does not attach a copy of the original with a person who REALLY knows, signing the affidavit that the copy is indeed a copy of the original, it is worth nothing. You win, they lose.

An affidavit without those components is simply an admission that they don’t have it. Case over.

The explanation must be plausible and be signed by someone who REALLY knows. If such an affidavit is sent in, in all probability is signed by someone who was presented with it along with the instruction “sign this or be fired.”

  • So you want to ask by interrogatory
  • or bluff them with a request for admissions 
  • (or take their deposition), along with a subpoena duces tecum that demands they bring with them all the original loan documents — if they have some of them, they better have a very convincing explanation of what happened tot he rest besides “we can’t find it)
  • that establishes that the person who signed it didn’t work for the lender at the time of the loan closing, and/or 
  • had nothing to do with the loan closing, and/or 
  • never saw the alleged original, and/or if they did see it, 
  • whether they are taking the blame for losing it on themselves with again, a plausible explanation.
  • whether they have been disciplined or if any change in policy was published for the company at the time of the alleged discovery of the “lost document.”

Without a copy of the original, nothing matters. They don’t have it and it is extremely unlikely that will succeed in proving the “lost document” since these documents are copied all over the place. If the copy doesn’t have your signature on it, it isn’t the original. The copy you have probably doesn’t have your signature on it either. Thus they can’t prove it with their records or even yours.


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