Weidner: Perjury is Acceptable Practice

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

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

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

Weidner Takes Court System to Task

Why Are We having So Much Trouble Connecting the Dots?

Matt Weidner reports that he went to court on a case where IndyMAc was the plaintiff. IndyMac was one of the first banks to collapse. It was found that they owned virtually zero mortgages and had “securitized” the rest which is to say they never loaned the money or got paid off by a successor. Now the servicing rights on IndyMac have been sold. So when the time came for trial he finds the lawyer fighting with his own witness. It seems that she would not say she worked for IndyMac because she didn’t. That meant there was no corporate representative present to testify for the plaintiff. case over? Not according to what we have seen where IndyMac foreclosures continue to be rubber stamped by Judges who do not understand the gravity of the situation.

The precedent being set is for anyone who knows about a default to race to the courthouse with a complaint to foreclose after fabricated a notice of default and asserting themselves as the successor to whoever the borrower was paying. The borrower doesn’t know the difference and generally doesn’t care because they mistakenly think they are screwed no matter what. So the pretender lender that was collecting takes it time partly because they are simply collecting fees on “non-performing” loans. Meanwhile our creative criminal goes in and alleges that he is the holder of a lost note, submits affidavits, but of course stays away from the essential allegation that there ever was a transaction between himself and the borrower. These days Judges don’t seem to require that.

Judgment is entered for our creative criminal and he becomes by court order, the creditor who can submit a credit bid at auction. He makes the non-cash bid at the auction and presto he just got himself a free house which he sells at discount on the open market. He only needs to do a few of those before he vanishes with a few million dollars. In fact, we have learned that such “foreclosures” are going on now sometimes creatively named such that it looks like the name of a bank. That is why I have been saying for 7 years that  the foreclosures, if they are allowed to proceed, will eventually create chaos in the marketplace.

You might ask why the banks don’t raise a big stink about this practice. The answer is that there are only a few such scams going on at the moment. And the banks are relying on the loopholes created in pleading practice to get their own foreclosures through the same way as our criminal because they really don’t own the loan or even the servicing rights. Yup! That is called a syllogism: if the creative criminal is a criminal for doing what he did, then the bank or anyone else who engages in the same behavior is also a criminal.

And that is why the justice department and regulators are ramping up their investigations and charges, getting ready to indict the bankers who thought they were untouchable. If you read the reports of securities analysts, you will see three types of authors — those who obviously have drunk the Kool-Aide and believe Bank of America and Chase hinting the stock is a good buy, those who are paid to plant pretty articles about the banks, and supposedly declining foreclosures and increasing housing prices, and those who have looked at the jury conviction of Countrywide, looked at the pace of settlements, and looked at the announcements that there are many more investigations and charges to be resolved, and who have seen the probability of indictments, and they conclude that BOA is soon going to be on the chopping block for sale in pieces and the same will happen with Chase, Citi and maybe even Wells.

While the media is not paying attention to the impending doom of the mega banks, the market is discounting the stock and the book value of these companies is dropping like a stone because real investment analysts under stand that much of what is being carried on the books as assets, is really worthless garbage. Charges of fraud are announced practically everyday, saying that the banks defrauded investors, defrauded Fannie and Freddie, and defrauded each other, as well as insurance companies and counterparties on credit default swaps. In other words it is pretty well settled that the sale of mortgage bonds was a sweeping fraudulent scheme and that the word PONZI scheme is accurate, not some conspiracy theory as I was treated back in 2007-2010.

So now that we know that there was complete fraud at one end of the stick (where the funding for the origination and acquisition of mortgages took place), the question is why is anyone looking at foreclosures as inevitable or proper or even possible. It is the same stick. If one end is burning then it is quite likely that the other end will be burning soon and that is exactly what I predict for the coming months.

Having been in court multiple times over the last month representing clients seeking to retain their homes it is readily apparent that the Judges are changing their minds about whether the foreclosure is inevitable or that collection by these creative criminals is wise or legal — i.e., whether the enire exercise involves an arrogant willingness to commit perjury. Since the mortgages were part of the scheme and the part where the lender appeared with the money is covered in fraud, it is certainly reasonable to assume that the the fraudulent schemes included the origination and transfer of mortgage paper. And that is exactly the case.

If it wasn’t the case there never would have been fraud at the top because the investors would be on the note and mortgage and some some nominee of the broker dealer (“BANK”) or they would have been on a recorded assignment closed out within 90 days of the start of the REMIC trust, which would have been funded by money from investors paid to the investment bank (broker dealer) who then forwarded the net proceeds tot he Trust. None of that ever happened, though, which is how the fraud was enabled.

Practice Hint: I like to demonstrate by drawing a large “V” where the bottom is the closing agent, the left side is the money trail and the right side is the paper trail — and showing that they never meet. That means the paper trail is a fictional story about transactions that never occurred. The money trail is actual facts and data showing actual transactions where money exchanged hands but there was no documentation. The “Trust” was never funded with money or assets, so the money went straight down the left side from the investors at the top of the left side to the closing agent, who applied the investors money to close a transaction that was documented as though the originator had loaned the money. The same reasoning applies to transfers and assignments.

The core of the cases filed by the banks is that the Note is prima facie evidence that a transaction occurred. It is entitled to a presumption of validity. But where the borrower denies the transaction ever occurred, and files the right discovery to get evidence of the wire transfers and canceled checks, the banks go wild because they know their entire case will not only fall apart but subject them to prosecution.

Which brings us to Marshall Watson, who seeks to be licensed again to practice law, and David Stern who is about to be disbarred forever. The good news is that they were disciplined for fabrication and forgery of documents. The bad news is that the inquiry stopped there and nobody ever asked why it was necessary to fabricate or forge documents.

FRAUD! In Foreclosure Court Indymac/Onewest Doesn’t Own Notes and Mortgages, But “They” Continue To Foreclose Anyway

Suspended Ft. Lauderdale foreclosure mill head seeks return

Florida Bar referee calls for ex-foreclosure king’s disbarment


It is axiomatic that if you borrow money, you must pay it back, which is why most borrowers don’t fight foreclosures and most judges consider the defenses of borrowers a waste of time. The people who think that are half right. Foreclosures are a colossal waste of time – but for the opposite reason that is thought to be axiomatically true — there was a legitimate loan, properly documented, sold and then foreclosed by the owner of the loan. Nothing could be further from the truth.

The logjam in the Court is self-imposed by a judiciary that refuses to follow its own rules — especially requirements of pleading that the loan was made by the originator and proving that the actual sales of the loan occurred as set forth in the PSA. In most cases the loan was NOT made by the originator, which is why dubbed them pretender lenders 6 years ago. No loan? Then the note and mortgage mean nothing. No injury? Then the foreclosure is void from the outset because the court lacked jurisdiction.

Mark Stopa, Esq., an innovative litigator in foreclosure defense, has expressed here (see link below) the frustration and disgust and yes, contempt for the Courts that has been expressed in private by attorneys on both sides. Judges are irritable because of the backlog of cases. But instead of looking at the root cause of the problems — namely bad rulings — the legislature and the Bench are essentially blaming the victims of the greatest economic crime in human history.
The Judges are irritable because they have married themselves to a failed group of assumptions and continue to issue rulings inconsistent with due process and the realities of loans subject to claims of securitization. This is turning into a body of law that will allow a convicted felon for economic crimes to commit a variety of acts for which he can argue are not punishable.
Using the assumptions of many judges on the bench, anyone can initiate a foreclosure on a home claiming to be the Servicer and claiming some vague authority to represent the lender. You don’t need to allege that you loaned any money. You don’t need to allege that you bought the loan. You just need a copy of the recorded mortgage and allege a lost note. Fabricating the lost note for copying is easy using photoshop. You allege a date when the borrower stopped paying, demand judgment and poof, it is awarded and a sale date is set.
At the auction, as the party to whom judgment was awarded, you submit a credit bid (no cash) and a deed is issued to you on foreclosure that is hard to attack. If history is any example, most of your cases will be entered by default, because the homeowner knows they stopped paying, but didn’t know he was paying the wrong party and didn’t know that his identity was stolen when the loan was originated.
The result is a free house for anyone who wants one.
If the Bench wants to be less irritable, and far less back logged, then all they need todo is to establish a threshold that eliminates the cries of foul from the homeowners. Foreclosure defense was never a specialty before. The reason it is now is that there are real defenses, including third party payment, that never existed before.
If the Bench was to require the forecloser to produce an affidavit and copies of the money trail, and if the Bench were to follow the most commonplace rules of pleading, there would be no backlog because there would be no Foreclosures.
How did pleading requirements evolve such that no loan need be alleged? Really? You can sue to collect on the note without pleading that the loan (i.e. actual advance of money from THAT lender) stated in the note actually happened? How did pleading evolve such that the foreclosing party does not have to plead and prove economic injury? Really? Hasn’t it been well settled for centuries that the court has no advisory role? Isn’t it true that no court has jurisdiction over a controversy in which neither party alleges injury or financial damage?
The entire foreclosure season, extending over 7 years and expected to last another 7 years, was manufactured by lies, fraud upon the court by foreclosers. The Banks relied on the fact that the Bench would react by grouping all the foreclosure victims as deadbeats “You didn’t make the payments. What do you expect? A free house?”
Instead of taking each case and requiring compliance with standard rules of pleading and proof, the Courts allow deviant legal practices that have clogged the courts with hundreds of thousands of homeowners who correctly proclaimed they were being victimized but who were blocked by the Judge from obtaining discovery that would have proven their case.

I intend to do something about that. And I must say that my experience so far is that Judges will listen if you are not shy. They may not agree with me yet, but they are allowing me to proceed to show the failure of consideration, the defects in the chain, and the absence of injury. And let’s face it, part of the problem is poor preparation that produces timid argument from attorneys. Lawyers would do well to follow the examples set by Weidner and Stopa.

Foreclosure Court: The Erosion of the Judiciary by Mark Stopa, Esq.

Yang vs. Sebastion Lakes 4th DCA Florida

Requirement of Pleading Injury

Matt Weidner Shows Lawyers How to Do Good Lawyering

The difference between Weidner and many other attorneys is that he goes into a case believing he can win it — and he’s right. Other attorneys believe their position is hopeless and seek only delays or modification — and they are wrong. Weidner has resisted the knee jerk reaction to these cases to believe that if the borrower ceases payment that all elements of a foreclosure are presumed met. He understands that the Banks are playing a shell game to conceal the fact that neither the named plaintiff nor the alleged creditor are in fact the real servicer and real creditor.

Matt Weidner has published his summary of essential issues raised in a hearing in which he was the attorney of record for the homeowner. He shows that knowledge of securitization, good preparation and articulate objections that are logically consistent with the proffer of evidence results in a good record and a good result. This transcript — shown on the link below — should be studied, not merely read. Then read it again. Weidner skills are formidable but they can be learned.

Editor’s Note: The background issue here is the conflict between the law permitting the servicer to commence the action and reality. The Servicer might be able to start a foreclosure but they cannot finish it. They can claim they have authority or power of attorney but the fact is they are not a creditor. And only a creditor can submit a credit bid.

So why is this case being brought this way? Is the creditor aware that their right to the title of the house and their right to sue for collection is being stripped from them. Does the creditor have notice? How do we know? Even if the pleading is not required, the proof demands the evidence that the Trustee of the REMIC testify that they have notice, they own the mortgage, they have not resold it, they have received no augments, directly or indirectly to reduce the balance of the account receivable, and that the investor approves of the Servicer/bookkeeper taking title with a credit bid and getting a judgment in its own name despite the obvious fact that the creditor is entitled to judgment. What authority does the Trustee have to let anyone take away property and assets? What reasonable purpose would be served? Doesn’t this show or at least suggest that the Trust does not own the loan? Maybe it never did, but the investors in the “Trust” know it was their money that funded mortgages — they just don’t actually know which loans they funded.

And as this case suggests, the intervention of the investment banks caused a fatal defect in the chain of title. If they wanted to stay out of trouble all they had to do was name the Trust on the note and mortgage or the assignment and record it as such. But they didn’t because they were playing with OPM (Other people’s money) and they still are playing the same game.

Residential funding gets into trouble. This is a very worthwhile read.

Foreclosure Defense Trial SECRETS EXPOSED! A WEIDNER Transcript of a Foreclosure Trial That Shows How A Homeowner Wins Foreclosure!

“Materially Less”: The Foreclosure Deficiency Standard in Tennessee

How the Bank Lobby Loosened U.S. Reins on Derivatives

Lending Giant Offers Short Sale Webinar

CONSUMER ACTION REQUIRED NOW!!! Banks Try for Amnesty at State level in Florida

Editor’s Note: Matt hits the nail on the head so there is no need to do a whole essay on the problem — just read his piece shown below. The Banks are getting itchy because like the economic crash they see a political crash coming. The Florida legislature is looking to “expedite” foreclosures. Republican controlled it is more likely that the banks will have their way with them — unless you do something NOW!

The whole premise, as Matt points out, is completely wrong. The problems with the pace of foreclosures is not that there are dilatory tactics being used by borrowers. In fact in many cases, it is the borrower who is more aggressive than the forecloser in pursuing an end to the case. The length of time it takes a process a foreclosure is caused by the illegal paperwork submitted by the banks. And the reason why they need to resort to doing something illegal is that they already did something illegal and are trying to cover it up.

If a borrower actually owes money on a loan, it should be clear in any setting how much money is owed to each stakeholder. The Florida legislation ignores this basic premise. AND if the paperwork was procured by fraud in the inducement, fraud in the execution or forgery followed by perjury of a “witness,” then nobody should be surprised why it takes so long. Requests for discovery are met with stonewalling. Before the mortgage meltdown, the lender would have been only too happy to lay down everything in their books and challenge the borrower to admit or deny it.

If it wasn’t for the deficient debts, notes and mortgages, the courts would not be clogged with foreclosures that should never have been initiated. Disclosure of the receipts and disbursements from an identified creditor (and their agents) who has proof of payment and proof of loss would end the foreclosure mess in a flash. But the banks refuse to do that because they can’t come up with a credible injured party with standing and they don’t want to reveal how much they took out of the flow of money advanced by investors in a PONZI scheme.

If you really want to stop foreclosures then pass a law that merely encapsulates what is already law in evidence, procedure, real estate and contracts — identify the creditor, show proof of payment, show proof of loss, proof of default to the CREDITOR and show documents that link up the borrower with the party who is injured.

Proof of loss and proof of payment can ONLY be established by producing a witness providing foundation for a copy of the wire transfer receipt or cancelled check. This is essential unless we are going to have two trials — one whether the foreclosure is valid on its face and the other whether the initiator of the foreclosure is a creditor (injured party) and the extent to which they were injured — or else they can’t submit a credit bid at the foreclosure auction.

If those conditions precedent to filing for foreclosure are required, either the borrower will drop out when those items are produced and alleged in the foreclosure complaint, or the case will not be filed at all. Case Over.

Send your email or letter now and by the way, send a copy to AG Bondi.

Posted by Matthew Weidner, Esq.

Every citizen who cares about justice, public policy and the rule of law should take an interest in what’s happening in Tallahassee.

The Florida House Subcommittee on Civil Justice will hear, and will likely pass, House Bill 87, a bill that aims to speed up foreclosures.  CALL THESE MEMBERS NOW AND URGE THEM NOT TO SUPPORT THIS BILL! This bill is wrong for many reasons, but let’s start first with the premise upon which it is founded….a premise which is totally false and misleading:

As a preliminary matter, public policy decisions should not be made relying upon data and information from industry sources, particularly when the methods and meaning of said data is not revealed.  In the house report on House Bill 87, they cite heavily to RealtyTrac data and other data which is not properly explained or put into proper context.  For instance, the report reads:

The average length of time between the first foreclosure filing and bank repossession is 853 days.

This statement ignores the fact that the primary reason for banks not completing foreclosures is the federal lawsuits into their crimes and wrongdoing and the related holds.

The banks, either because of the litigation or for their own business purposes are reviewing many more files for modification than before and many of the foreclosures that are “stalled” are not moving because the homeowner is in a long term modification.  A foreclosure case that has a loan that is in modification will just be “stalled” out, not moving at all in court, but this is not at all reflected in the case progress.

Current law provides for an alternative procedure that is designed to speed up the foreclosure process in uncontested cases or cases where there is no legitimate defense.

This is correct, there already exists an expedited procedure that the banks could use if they chose to….but they are choosing not to….and they cannot be forced to use this process.  Currently there are a significant portion of the foreclosure caseload for which the homeowner has not responded.  In these cases, a bank could move for judgment and get title in a matter of 60-90 days.  Before voting on this bad bill, members should consult with their chief judge and find out what percentage of cases currently pending could be quickly moved to judgment because it is investment or abandoned property or property for which no homeowner has responded to the lawsuit.

If the property is not residential real estate, the plaintiff may request a court order directing the defendant to show cause why an order to make payments during the pendency of the proceedings or an order to vacate the premises should not be entered.

This already exists in statute, but it is not being used.  Why add to a statute that the industry chooses not to use?  What percentage of current foreclosure filings in a circuit use this process currently and why has it not been used?  Why add a companion to this existing if the industry does not use it?

Provides finality of a mortgage foreclosure judgment for certain purchasers of a property at a foreclosure sale while allowing for damages in some instances.

The title insurance industry was more than willing to accept premiums knowing full well that many of their agents were engaging in improper conduct.  To allow the title insurance industry to evade their existing contracts and responsibilities to policy holders is misguided. And you cannot replace property which is unique, with any amount of money. This is a backdoor bailout to the title insurance industry and it rewards conduct that was either criminal, reckless or grossly  improper.
Amends the expedited foreclosure process to allow all lienholders to use the procedures, instead of just the mortgagee; reduces the number of hearings from 2 to 1; and prohibits service by publication when using the expedited process, unless the property is abandoned.

Only a party who initiates the litigation can make that litigation proceed.  There is no way that a junior lienholder can force the primary plaintiff to proceed with their case to judgment if they choose not to.  It is the Plaintiff’s case to proceed as it choose, and the existing law and court resources permit them to do so.
Allows any party to request a case management conference to expedite the lawsuit.

Any party to litigation may already demand that a court have case management, and the courts will do so…the court already has resources and the law gives them tools to move cases along.  And while a party cannot be forced to take a judgment, a judge can impose sanctions or enter orders that move cases toward resolution…..IF THAT’S WHAT THE PLAINTIFFS WANT!

Defines adequate protections where there is a lost, destroyed or stolen note.

The Uniform Commercial Code, adopted across the United States, and in Florida already provide protections.  This is totally unnecessary

Florida has the largest share of foreclosure inventory of any state in the nation, with 305,766 properties in some stage of foreclosure or bank-owned as of the end of 2012.1 Seven of the top 10 highest foreclosure markets in the nation are in Florida, with Palm-Bay-Melbourne-Titusville having the highest rate of foreclosure of any metro area in the nation.2
Foreclosing on a mortgage in Florida is an unusually long process. Florida trails only New York and New Jersey in terms of the length of time between the first foreclosure filing and bank repossession, at 853 days. The national average is less than half that, at 414 days.3.

Relying on all this data from RealtyTrac, which data is not adequately explained and which contains other factors and reasons should be disfavored.  Our state policy makers should only rely on data that comes from our judges and from Clerks of Courts.

Upon proper notice of default to the defendant, the mortgage servicer files a foreclosure complaint, which must allege that the plaintiff is the present owner and holder of the note and mortgage, [Editor’s Note: what happens if the allegation is made but the borrower denies it?]

Unfortunately, the underlined statement is wrong….the appellate courts across this state have made a disaster of the distinction between Owner and Holder such that it is not uniformly required anymore…this is a major problem….but this legislation does not address this….if the legislation were to change making that element a requirement would be positive

This bill is just wrong in so many ways, and making policy decisions based on flawed, and unclear data just makes no sense….call your representative and tell them to reject the bill.


Email Them Here:


Contempt of Court: U.S. Bank President Rejects Court Order to Appear


What’s the Next Step? Consult with Neil Garfield

For assistance with presenting a case for wrongful foreclosure, please call 520-405-1688, customer service, who will put you in touch with an attorney in the states of Florida, California, Ohio, and Nevada. (NOTE: Chapter 11 may be easier than you think).

Editor’s comment: What do you think would happen if the Judge ordered you to appear in court for the next hearing and you simply did not show up and sent your cousin instead saying you were to too busy to see the Judge? My guess is that at a minimum you would be fined and you might even get free room and board in the County Jail without bond.

That is what U.S. Bank and its president are facing soon when they confront a very angry Judge in Sarasota, Florida. Playing fast and loose with the money, the documents, the forgeries and the lies in court, U.S. Bank stands out as the poster child of Bank Arrogance.

This is the same bank that allowed a foreclosure to proceed in its name without ever having specifically requested or authorized it. The attorney admitted in that case that he didn’t represent U.S. Bank and had never spoken with anyone there either. So the Bank was able to assert plausible deniability when the foreclosure was deemed wrongful. At this point the anecdotal evidence strongly suggests that if U.S. Bank is involved in a foreclosure the deal is dirty and should be scrutinized carefully.

Matt Weidner continues to keep up the pressure and the vast wall is cracking, the shrouds are tearing and the banks are being revealed for what they are: fairly common criminals with “get of jail free” passes. Thanks to Matt and other attorneys around the country, the tide is turning and those passes are going to expire. U.S. Bank will be the first one to see a bank executive behind bars. You see the problem is that they don’t want to commit perjury directly. They want to do it through surrogates. Matt understands this as well as I do. He knows that once the Judge things the forecloser is dirty, they are cooked. Settlement offers start popping out of the woodwork.

Contempt of Court: U.S. Bank Ignores Judge’s Order for President to Appear

Weidner: Notes Are Not Negotiable Instruments

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Editor’s Notes:  

Matt Weidner appears to have mastered the truth about securitization and how to apply it in foreclosure defense cases. The article below is really for lawyers, paralegals and very sophisticated pro se litigants. His point about being careful about how you present this is very well taken. This is for lawyers to do and lawyers should read this and get with the program. Securitization turned about to be virtually all SHAM transactions with the real financial transaction hidden away from the view of the borrower, the courts and even securitization analysts. The operative rule here is that the existence of a financial transaction does not mean that strangers to that transactions can claim any rights. 

These loans were nearly always funded by other parties who had made promises to investors whose money was used to fund the mortgages. The very existence of co-obligors and payments by them defeats the arguments of the banks and servicers. I’d like to see ONE investor come into court and say that yes, they would ratify the inclusion of a defaulted loan into their pool years after the cutoff date which negates their tax benefits. There is o reasonable basis for an investor to do or say that. That leaves the loan undocumented, unsecured and subject to offset for predatory and wrongful lending practices.

The wrong way of approaching this is any way in which you are going into court to disclaim the obligation when everyone knows you received the money or the benefit of the money. The obligation exists. And the only way to discharge that debt is through payment, waiver (or bankruptcy) or forgiveness. Anything that smells like “I don’t owe this money anymore” is going to be rejected in most cases. But an attack on the lien and the reality of the true creditor is a different story. That needs to be presented as simply as possible and I think I good way to start is to deny the loan, obligation, note, mortgage etc on the basis of an absence of any financial transaction between the borrower and the party named on the documents upon which the foreclosers rely. Any discovery at all will reveal that the money never came from the payee on the note or mortgagee or beneficiary on the mortgage or deed of trust. 

by Matt Weidner:

Let’s start with real basic stuff here.  Sometimes law is complex, nuanced,difficult.  Other times it’s black and white…you just read the words, look at the facts and the answer is unavoidable.  Such is the case with the simmering dispute over the fact that the notes that are part of nearly every residential foreclosure case are not negotiable instruments.  Oh sure, too many courts won’t take the time to consider the argument and…just yesterday I heard an appellate court argument where the judges just kept repeating the mantra, “this is a negotiable instrument” without ever doing any analysis at all and without any finding of that “fact” from the trial court.  The attorney needed to stop the appellate judge right there and say, “No Your Honor, it’s Not A Negotiable Instrument”.

Just last week, in a trial court, here’s exactly the way it went down.  Now, keep in mind, this argument in court was supplemented by a long and detailed memo similar to the one attached here.  The best part it was in front of one of Florida’s most respected and brilliant judges.  He’s been on the bench longer than I’ve been alive, he knows more law in the tip of his finger than most lawyers get in their whole bodies in an entire lifetime, he’s presided over tens of thousands of foreclosure cases. It was a beautiful thing to see an argument before a dedicated jurist whose seen and heard it all before that really made him sit up, dig in to those decades of judicial wisdom and then do the heavy lifting. That’s one of the beautiful things about this job….despite decades of work and hundreds of years of law, out of nowhere something new and exciting can still get the intellect and wisdom fired up and shooting like a cannon. Here’s how it goes down:

Your honor, I’ve highlighted and present for you the statutory definition of a “negotiable instrument”.  Because it’s a statutory definition, it’s black and white. We cannot alter or weave or color it with shades of gray….here’s what it is:

673.1041 Negotiable instrument.—
(1) Except as provided in subsections (3), (4), and (11), the term “negotiable instrument” means
an unconditional promise or order to pay a fixed amount of money, with or without interest or other
charges described in the promise or order, if it:
(a) Is payable to bearer or to order at the time it is issued or first comes into possession of a
(b) Is payable on demand or at a definite time; and
(c) Does not state any other undertaking or instruction by the person promising or ordering
payment to do any act in addition to the payment of money.

FL Article 3

Now, we’re all stuck with exactly that definition. Before we examine the note in this case, let’s first think about what a negotiable instrument is….a check made payable to a person for $100. An IOU for $100.  Bills of lading with a total included.  It’s all real simple.

So now that we’re fixed about what a negotiable instrument is, let’s examine what it ain’t.  What ain’t a negotiable instrument, as defined by Florida law is the standard Fannie/Freddie Promissory note and the following paragraphs are the primary reasons why.  Read each one carefully and ask, “Are these sentences conditions or undertakings other than the promise to repay money?” (Of course they are)


I have the right to make payments of Principal at any time before they are due.  A payment of Principal only is known as a “Prepayment.”  When I make a Prepayment, I will tell the Note Holder in writing that I am doing so.  I may not designate a payment as a Prepayment if I have not made all the monthly payments due under the Note.

I may make a full Prepayment or partial Prepayments without paying a Prepayment charge.  The Note Holder will use my Prepayments to reduce the amount of Principal that I owe under this Note.  However, the Note Holder may apply my Prepayment to the accrued and unpaid interest on the Prepayment amount, before applying my Prepayment to reduce the Principal amount of the Note.  If I make a partial Prepayment, there will be no changes in the due date or in the amount of my monthly payment unless the Note Holder agrees in writing to those changes.

5.         LOAN CHARGES

If a law, which applies to this loan and which sets maximum loan charges, is finally interpreted so that the interest or other loan charges collected or to be collected in connection with this loan exceed the permitted limits, then:  (a) any such loan charge shall be reduced by the amount necessary to reduce the charge to the permitted limit; and (b) any sums already collected from me which exceeded permitted limits will be refunded to me.  The Note Holder may choose to make this refund by reducing the Principal I owe under this Note or by making a direct payment to me.  If a refund reduces Principal, the reduction will be treated as a partial Prepayment.


This Note is a uniform instrument with limited variations in some jurisdictions.  In addition to the protections given to the Note Holder under this Note, a Mortgage, Deed of Trust, or Security Deed (the “Security Instrument”), dated the same date as this Note, protects the Note Holder from possible losses which might result if I do not keep the promises which I make in this Note.  That Security Instrument describes how and under what conditions I may be required to make immediate payment in full of all amounts I owe under this Note.  Some of those conditions are described as follows:

If all or any part of the Property or any Interest in the Property is sold or transferred (or if Borrower is not a natural person and a beneficial interest in Borrower is sold or transferred) without Lender’s prior written consent, Lender may require immediate payment in full of all sums secured by this Security Instrument. However, this option shall not be exercised by Lender if such exercise is prohibited by Applicable Law.

If Lender exercises this option, Lender shall give Borrower notice of acceleration.  The notice shall provide a period of not less than 30 days from the date the notice is given in accordance with Section 15 within which Borrower must pay all sums secured by this Security Instrument.  If Borrower fails to pay these sums prior to the expiration of this period, Lender may invoke any remedies permitted by this Security Instrument without further notice or demand on Borrower.


So, the deal is, if we were sitting in a law school classroom, there’s not a chance in the world but that every student in the room and the professor would agree and understand that the document being examined side by side is not covered by the definition provided.  The problem is we get into courtrooms and we get infected by considerations that are beyond and above the operative law.  Judgment gets clouded by preconceived notions and prejudices against our neighbors and favoritism for the criminal banking institutions that caused all this mess. Even to this day, years into this, years into all the fraud and the lies and the deceit, it’s like we’re still hypnotized by the banks and their black magic and voodoo.

Now, if you really want to take it a step deeper, Margery Golant makes a very credible argument that in doing this analysis we cannot just look at the note alone, but that we must also examine the mortgage that follows with it.  They truly are two integrated documents and you can see from her highlights that so many of the provisions in the mortgage have nothing to do with security and everything to do with conditions on the payment of money….these provisions are just jammed into the mortgage and kept out of the note to try and prop up this artifice of negotiability.  Read her highlights with this analysis in mind:

Fannie Florida Mortgage with Golant Highlights

Further supported by this case Sims v New Falls

Now, understand the industry never intended these notes and mortgages to transfer via endorsement.  The industry set this whole system up so that the notes and mortgage would transfer via Article 9 of the UCC.  It’s just so plain and simple.  They never set it up or intended that million dollar notes and mortgages would transfer via forged endorsements, undated squiggles and rubber stamps or floating allonges.  Of course not…that’s just crazy.  The entire system was created such that notes and mortgages and all the servicing agreements and rights and liabilities would transfer via far more formalized Assignments, with names and dates and notary stamps and witnesses.  The Article 9 transfer regime had nothing to do with protecting consumers, but everything to do with protecting the players in the industry from the scams, the lies, the cons that they all like to play on one another. (Hello, LIBOR anyone?)

But when the shifty con artists that set this whole securitization card game up, they were so focused on how much money they were making, they never considered what would happen when the whole house of cards blew down.  When it blew down, they threw their Article 9 intentions out the window and adopted the whole Article 3 negotiable instrument delusion.  Isn’t it an absurd argument when they cannot answer the question, “if assignments don’t matter, why do you still bother to do them?”  It’s because they do matter….assignments were and remain the foundation of their transfers.  The problem is Assignments, what with their pesky dates and legible names and notaries and all reveal the lies and the fraud and the con that developed once the system came crashing down and they all started stealing from one another. (With the explicit approval of our state and federal government to do so….too big to jail you know.)

Anywhoo, there’s still some faint glimmer of hope as long as we still have good judges out there that are willing to think these things through and do the heavy lifting, we might be able to rescue our nation’s judicial system and in fact our nation as a whole from this deep, dark black pit that we’ve all descended down.

I urge everyone to be very careful with these arguments.  I’m a very big supporter of pro se people and consumers being integrated into their courtrooms and being fully engaged in the public spaces they own. I’ve also seen some very good pro se people go into courtrooms and do some very beautiful things.  In some ways it’s like a “From the mouths of babes” experience.  Language and arguments stripped away from all their lawyerly pretense can have a magic effect on a judge’s ear and thoughtfully and well-prepared arguments are often received with great enthusiasm from our circuit courts….particularly those judges that recognize the roots of our civilian circuit justice system.  The danger is that ill-prepared and poorly presented arguments will taint the ears and poison the minds of judges that might otherwise accept with an open mind…..keep that in mind.  Max Gardner is the Obi One Kenobe of all this and there’s just something about the way he lays it out so clear and clean and simple that has it all make sense.  I really encourage everyone to get all his material and invest in the week long bootcamp before you go trying any of this out…..MAX GARDNER BOOTCAMP

And now my briefs:







Wells Fargo Compounds Misbehavior with Retaliation

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Bank Closes Accounts of Critics

Editor’s Notes:  

Wells Fargo’s story has been as bad or worse than many of the stories that have been published about banks committing crimes (forgery), misrepresentations is court, and fraudulent foreclosures. But Wells escaped a lot of media attention even with mammoth fines and penalties imposed by enraged Judges. We shouldn’t be too surprised by all this bullying and intimidation — after all, it is even a huge problems in schools which makes one wonder what is happening in the homes.

Their strategy seems to be to say anything that gets the job done (foreclosure) regardless of the facts or the law. It starts off with them having their attorney represent them in court, proffering “facts” that are not in evidence and turn out to be completely untrue. More specifically, they tell the court and the borrower that they are the creditor and then later, when it turns out the representation was completely untrue, and it is time for the homeowners to get attorneys fees and costs, they tell the Judge that they made a mistake and that they are not really the creditor, just the servicer, through America’s Servicing Company, which is not even a legal entity but simply a department within the Bank.

Now they are striking back through their commercial banking operation finding excuses to close or freeze accounts of those organizations that are critical of Wells Fargo behavior. We can expect more of this bullying and intimidation, rather than less. I expect that the other big banks will start doing the same thing. We have already seen how our own effort here at LivingLies have been hampered in getting simple title reports, because the sources of this on-line data, while open to the public, often mislead any inquirer into “plans” that won’t give them the right data.

Matt Weidner has cataloged some of the events in the article below. Hat tip to him for the effort. The media problem will heat up against the banks when the investigative reporters finally get the point: the mortgages are invalid, there was no financial transaction between the parties recited on the “closing” documents, and the terms of repayment shown to the lender (pension funds etc., who advanced the money for the loans) were different from the terms shown to the borrower.

And when the media realizes that the money never followed the document trail from beginning to end the fun will really start. The transaction was between the homeowner and the pension funds through an undifferentiated commingled escrow account where there were no decisions on “bundling” (which never actually took place). It was just money in an account that was used to fund mortgages without getting a signature from the homeowner borrower on the actual transaction and without the investor lender knowing the true nature of the underwriting and funding process.

In order for these proceedings to start leaning toward the borrower, the borrower and their attorney must educate themselves enough to deny the debt, deny the default, deny the note, deny the mortgage and everything else that is being presumed by the would-be forecloser. It is the borrower’s job to to argue passionately and persuasively that there are material facts in issue on which the borrower is entitled to a fair hearing on the merits. Instead borrowers and attorneys are reading the pablum fed to them by the banks’ publicists and they are failing to object to misrepresentations in court without facts in evidence, failing to object to lack of foundation, competency of witness and hearsay.

By the time the case gets argued by the homeowner, it is already established in the Judge’s mind that you took a loan, it was from these people who are foreclosing or one of their affiliates, you failed to pay it and you defaulted on the terms of repayment. Now you want that same judge, with those thoughts in his/her head, to start ruling for you because some of the documents were improperly prepared. The biggest mistake homeowners make is trying to win the entire case in the first hearing or in their first pleading. Any good trial lawyer knows that is impossible. The pleading and argument of the homeowner should focus on denial of any facts that would support any lawsuit, foreclosure or sale. You have had lots of loans, but none of them were with these people or their predecessors. Thus the note was procured by trick (fraud in the execution) based upon false pretenses (Fraud in the inducement) and predatory lending practices (violations of TILA).

It was all a living lie. And instead of taking their just deserved punishment, Wells Fargo is leading the way to punish those who tell the truth. Brad Keiser who co-presented in our first national tour liked to quote George Orwell who said something along the lines of “In a world of lies, the most courageous act is to tell the truth.”

WOW- Writing Against The Banks Can Get You Punished…


By Matt Weidner

Scary stuff from Zombeck:

A wrap-up of stories and posts you might have missed or overlooked — the ones below the fold.

For quite some time Wells Fargo managed to stay below the media’s radar and let the other guys like Bank of America and JPMorgan Chase, for example, bear the brunt of consumer and activist outrage. Lately, it seems, they’ve had to prove that they’re equally nasty and contemptible as the others. Foreclosing on priests and temples; closing bank accounts without apparent reason; promoting and profiting from private prisons; and ripping off towns, states and counties with bid rigging that skimmed money slated for schools, hospitals, and nursing homes.

Wells Fargo can’t seem to get enough bad press these days. While working with the “any press is good press” theory may work for loud mouths like Rush Limbaugh and Glenn Beck, it’s not a strategy normally employed by most consumer based businesses.

In a piece I wrote a couple of weeks ago I speculated that Wells Fargo had closed the bank accounts of ML-Implode’s Aaron Krowne out of retribution for Martin Andelman’s articles about Wells Fargo’s egregious and reprehensible track record in respect to homeowners and foreclosures. It’s important to note that Andelman blogs independently, is not paid by ML-Implode, and ML-Implode does not dictate or control what he writes. His blog, however, is hosted on ML-Implode. In essence, it would be like closing Arianna Huffington’s bank account because of something I wrote on Huffington Post.

Wells Fargo took particular offense, asserting that the headline was factually incorrect, but claimed that for privacy reasons they cannot disclose publicly the specifics behind the decision to close accounts. They asked that the title of the article be changed to not use the word “retaliation” and that somehow the original headline, “Wells Fargo Freezes Account in Retaliation,” was inaccurate since one of the articles mentioned, “Husband’s Suicide Yesterday, Wells Fargo to Evict Wife Tomorrow Anyway,” by Martin Andelman was written after they had made the decision to close the account. Andelman’s article was written on May 14 and Wells Fargo made the decision to close Krowne’s account on May 11.





WATCH DYLAN RATIGAN TODAY MSNBC: But Dylan still doesn’t quite get it

COMBO Title and Securitization Search, Report, Documents, Analysis & Commentary COMBO Title and Securitization Search, Report, Documents, Analysis & Commentary

“When you rob the bank you pay for the crime. When you ARE the Bank, you still do the time.”

It’s good that Dylan is highlighting the mortgage mess. He had Matt Weidner on yesterday who did his best in answering a bad question. Ratigan asked Matt why homeowners shouldn’t get off on a technicality when criminals do that all the time. Weidner correctly pointed out that this was about real property rights and stability of the real estate market as a whole and the entire economy without saying that Ratigan had asked the wrong question. He was diplomatic since he was being given a national audience and he didn’t want to offend the host of the show. And getting into it with Dylan over the question would have diluted Weidner’s message so he wisely stuck to his point.

It’s true that there are widespread “technical” deficiencies. Starting with the solicitation of mortgage business from consumers, to the execution of questionable documents and the entirely absent documentation supporting what we all thought was securitization of loans, the deficiencies and defects are many. It is increasingly apparent that the pools are empty and can’t be filled which means the investors received nothing for their purchase of RMBS except occasional distributions that were not the subject of a proper accounting or payments. And it is equally true that those deficiencies are not the fault of the borrower and they are entirely the fault of whoever put these documents together, whoever was supposed to record them, and whoever decided to dispense with legal transfers of loans, notes, mortgages, receivables and obligations.

What is bothering the megabanks now, and increasingly those financial and economic analysts who are finally doing the due diligence that should have been done 10-15 years ago as this scheme was being put together, is not the technical deficiencies that could be papered over or corrected, but the fundamental flaws in the basis of the transactions which were, for the most part, fraudulent. We don’t need new laws to invalidate these mortgages and notes and we don’t need new laws to offset the amount of the obligation. Those laws are already on the books. And THAT is the problem — not some technicality.

The fundamental problem facing the country is that some 60 million+ real estate transactions are fatally defective, meaning they don’t comply with the laws governing transfers of real property. That means we not only have a credit crisis, we have a title crisis that is already screwing up the entire real estate market — both residential and commercial — as well as the financial markets. Weidner explained this quite well but it was not truly understood by Ratigan and he and Weidner are basically on the same side of this issue. This is not some problem that can be resolved by allowing the foreclosures to proceed, because there is no right to foreclose under any scenario and there might not be any obligation left after set-offs and deductions. So the lesson for all lawyers and all homeowners is that if you are looking for relief, you need to make your points short and sweet and not lengthy analyses like the articles on this blog.

Those 60+ million transactions must be settled and we are not headed in any direction yet that will do so. The only way they are going to be resolved is case by case as each one ends up in court or homeowners who have long since sold or been foreclosed out of their property are suddenly asked to sign off on some paper that when the smoke clears admits that they still own the property and could demand money for their signature or even demand the current residents move  out as they take possession of the property they thought they had sold or lost.

This was intentionally created by a financial industry that was interested in keeping its options open so they  could move around the receivables and, they thought, the right to enforce those receivables to whomever they designated. In their heads they were the ultimate arbiters on the law of real property, commercial transactions and negotiable instruments. That is how it was when societies were governed by the rule of men but in our society we are governed by the rule of law. If you break it and you can’t fix it you pay for it. The banks broke this system and now they must take responsibility for the corrections required in a manner that affects all of the 60+ million transactions they so gleefully spawned in the first place.

The simple truth is that the fraud backfired and now the homeowners are sitting with all the power. The investors are coming in droves claiming their money back because they recognize this simple fact. And the perpetrators of the fraud are trying to get the law changed to somehow legalize what they did because, understandably, they don’t want to be liable for trillions of dollars, and they don’t want their licenses revoked and the individuals don’t want to  go to jail. When you rob the bank you pay for the crime. When you ARE the Bank, you still do the time.

Trusts, Trustees and Beneficiaries

From http://www.mattweidner.com

These statutes provide numerous regulations and requirements that entities engaging in trust activities should comply with, but the regulations are largely being ignored by the entities engaging in trust activities and both courts and the enforcing agency, the Florida Department of Financial Services,

Editor’s Note: Matt Weidner is onto something here that has been pointed out by many lawyers across the country. His central point is that if you want to call yourself a Trustee in foreclosures then there had better be a trust. If there is a trust the state laws, rules and regulations govern them and the trustees. Most of these laws are being ignored by the pretender lenders with impunity — Judges routinely ignore arguments concerning the authority of the Trust to do business in the state, the right of the Trustee to proceed with foreclosure, and the accountability to both the borrower and the investor, both of whom might be beneficiaries under the Trust. Greenwich Financial filed suit against Countrywide and BOA to underscore the point that the investors are the creditors and that if there is a trust, it is the investor who is the beneficiary. Yet, as Charles Koppa has pointed out numerous times, the prices on the courthouse steps are routinely manipulated against the interests of any beneficiaries.

But the real question in my mind is whether these “trusts” actually meet the definition of that term. for there to be a working trust and an authorized trustee, there must be a trustor (the one who creates the trust), a beneficiary (the one who receives the benefits from the trust) and a “res” which is something of value that is put into the trust and which is owned, rather than passed through the t rust.

The trustor must have some property interest (tangible or intangible) that is being conveyed to the trustee to hold in trust for the beneficiaries. I’ve looked at the pooling and services agreements, prospectuses, assignments and assumption agreement and individual assignments, alleged powers of attorney and the promotional literature of the Special Purpose vehicles that issued mortgage backed securities (bonds) to investors who end up holding a piece of paper called a “certificate.”

In my opinion, there is no trust, even though one is named. In my opinion there is no trustee, even though one is named. Beneficiaries are not named and the res of the trust which supposedly is a pool of loans has been conveyed in percentage slices to the investors who bought the certificates.

There is no Trustor identified in most cases although there have been arguments of the pretender lenders that the investors are the trustors and the beneficiaries. There is also the argument that the pooling and service agreement allocating a “pool” which more often than not initially contains fictitious assets contains a  Trustor somewhere in the document.

In my opinion the party designated as a Trustee is merely a candidate for an agency relationship that might arise if several conditions are met, as defined in the prospectus. The agent has no liability or obligations of any kind until those conditions happen at some time in the future.

And since the res of the trust allegedly includes a pool of loans that was owned by some vaguely defined pool aggregator or “trustee” and since the percentage interests in that pool was conveyed to the investors, it is my opinion that there is no res in the so-called trust (i.e., there is nothing being held in trust). If there is nothing held in trust, then even if the trust technically exists, the trustee has no powers. This is congruent with the REMIC provisions of the Internal Revenue Code that allow the SPVs to be formed as pass through entities in which no tax event occurs and therefore no tax applies.

So back to Weidner’s point, if the trust is real, it isn’t following the laws governing their creation and use, OR, to my point, the trust isn’t real anyway. It is for these reasons, among others, that you MUST identify the investors, get in touch with them, compare notes and get an accounting from them. If the Courts ever force the pretender lenders to disclose the identity of these creditors and allow you to pursue interaction with them, then, and only then, will the alleged default be validated, the demand on the note verified, and the possibility of financial double jeopardy eliminated.

Florida Statutes Chapters 658 which regulates Banks and Trust Companies and can be found at http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=Ch0658/titl0658.htm&StatuteYear=2009&Title=-%3E2009-%3EChapter%20658 and chapter 660, the section of Florida Statutes which specifically regulates trust business in Florida and which can be found at http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=Ch0660/titl0660.htm&StatuteYear=2009&Title=-%3E2009-%3EChapter%20660 are two important consumer protection statutes that are being widely ignored by regulators and courts across the state.

The definition of trust activities provided in statute is very broad and specifically includes many of the activities national banks and foreign corporations engage in related to mortgage foreclosure activities. An analysis of foreclosure cases filed in counties across the state will reveal that a recognizable percentage of the cases are filed “as trustee” for some other party or entity.http://www.myfloridacfo.com/are ignoring the laws and the application of these laws to entities that are violating them. These statutes provide numerous regulations and requirements that entities engaging in trust activities should comply with, but the regulations are largely being ignored by the entities engaging in trust activities and both courts and the enforcing agency, the Florida Department of Financial Services,

Homeowners who are subject to foreclosure and foreclosure defense attorneys are encouraged to carefully review the cited statutes and consider the application of the statutes to each individual case. Lenders who are engaging in trust activities but who are not properly licensed or registered to do business in the state should be prevented from prevailing in foreclosure actions on equitable grounds based on their failure to comply with these important consumer protection and state interest laws.

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