New York Judge Orders Release of Hidden Documents

This is just the beginning of what I have been predicting for 10 years. When the public finds out that the government itself is addicted to the false scheme of securitization — and that this has led to abandonment of policies and rules of law that have continued to depress the U.S. economy — the “movements” of Sanders and Trump will look like garden parties.

The mortgage loan schedules, assignments, and endorsements are all pure fabrication, illusion smoke and mirrors. This is why 10 years ago the banks were denying the existence of the trusts. They created a void between the investors and their money on the one hand and the homeowners and their homes on the other. They stepped into the void acting as principals when they were in fact rogue intermediaries.

“In the discovery battle in these suits, the government’s pleas for secrecy were so extreme that it asked for, and received, “attorneys’ eyes only” status for the documents in question. This meant that not even the plaintiffs were entitled to see the raw papers. This designation is usually reserved for cases involving national security or proprietary business secrets.”

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

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see http://www.rollingstone.com/politics/news/why-is-the-obama-administration-trying-to-keep-11-000-documents-sealed-20160418?utm_source=email
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Matt Taibbi is one of the few journalists in existence who has actually taken the time to gain some real understanding of the financial crisis that was revealed in 2008-2009. I would only add that this is like the tobacco litigation where the states became addicted to revenue from the tobacco companies in order to pay their “fines.”
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There are many reasons why the Bush and Obama administrations moved to “save” the TBTF banks at the expense of the rule of law and on the back of homeowners who were lured into unworkable debt masquerading as mortgage debt.
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And the outcome of this leadership by example is that the mortgages are treated as valid encumbrances, the mortgage bonds are treated as viable assets on the balance sheets of banks, and the one source that could save the economy — consumers — is being cutoff from any form of relief.
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This is like the Fortune 500 companies who have decided that their stock is their product, and the higher their stock price the better they are doing — even if it means that they artificially inflating their stock price by purchasing the stock at high levels with company funds. It’s like oil companies who continue to value the oil in the ground as though they were going to suck it all out and make a profit when we all know that oil is largely going to be left intact and not subject to sale or use. The bubble is here and this decision by a federal judge forces the hand of the Obama administration to lift the veil of secrecy on the pact between the TBTF banks and the U.S. government.
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THE SIMPLE TRUTH: The “Trusts” were nothing but names on paper. And the paper allegedly issued by the “Trusts” was as worthless as the Trusts themselves. The investors advanced money under the belief that it would mean their money was going through a “pass-through” entity to be managed by the Trust; but the money never went to the trusts and the trusts never acquired any assets from any source, leaving the trusts at best “inchoate” and at worst nonexistent depending upon the state.
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The mortgage loan schedules, assignments, and endorsements are all pure fabrication, illusion smoke and mirrors. This is why 10 years ago the banks were denying the existence of the trusts.
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They created a void between the investors and their money on the one hand and the homeowners and their homes on the other. They stepped into the void acting as principals when they were in fact rogue intermediaries.
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And to cover their tracks they funded loans with money they stole from investors, thus stealing the money and the debt, while at the same time defrauding the borrower and the courts with false claims of ownership leading to the pinnacle of their scheme — a forced sale of property that in fact they had no interest in, based upon a loan that they never funded or acquired. Getting to that auction is the first legal document in the whole fabricated illegal chain of documentation — and it gives them the right to use that foreclosure sale as proof that everything that went before the sale was true and valid. It wasn’t.
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About Those PSA Signatures

What is apparent is that the trusts never came into legal existence both because they were never funded and because they were in many cases never signed. Failure to execute and failure to fund the trust reduces the “trust” to a pile of ashes.

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

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From one case in which I am consulting, this is my response to the inquiring lawyer:

I can find no evidence that there is a Trust ever created or operational by the name of “RMAC REMIC Trust Series 2009-9”. In my honest opinion I don’t think there ever was such a trust. I think that papers were drawn up for the trust but never executed. Since the trusts are phantoms anyway, this was consistent with the facts. The use of the trust as a Plaintiff in a court action is a fraud upon the court and the Defendants. The fact that the trust does not exist deprives the court of any jurisdiction. We’ll see when you get the alleged PSA, which even if physically hand-signed probably represents another example of robo-signing, fabrication, back-dating and forgery.

I think it will not show signatures — and remember digital or electronic signatures are not acceptable unless they meet the terms of legislative approval. Keep in mind that the Mortgage Loan Schedule (MLS) was BY DEFINITION  created long after the cutoff date. I say it is by definition because every Prospectus I have ever read states that the MLS attached to the PSA at the time of investment is NOT the real MLS, and that it is there by way of example only. The disclosure is that the actual loan schedule will be filled in “later.”

 

see https://livinglies.me/2015/11/30/standing-is-not-a-multiple-choice-question/

also see DigitalSignatures

References are from Wikipedia, but verified

DIGITAL AND ELECTRONIC SIGNATURES

On digital signatures, they are supposed to be from a provable source that cannot be disavowed. And they are supposed to have electronic characteristics making the digital signature provable such that one would have confidence at least as high as a handwritten signature.

Merely typing a name does nothing. it is neither a digital nor electronic signature. Lawyers frequently make the mistake of looking at a document with /s/ John  Smith and assuming that it qualifies as digital or electronic signature. It does not.

We lawyers think that because we do it all the time. What we are forgetting is that our signature is coming through a trusted source and already has been vetted when we signed up for digital filing and further is backed up by court rules and Bar rules that would reign terror on a lawyer who attempted to disavow the signature.

A digital signature is a mathematical scheme for demonstrating the authenticity of a digital message or documents. A valid digital signature gives a recipient reason to believe that the message was created by a known sender, that the sender cannot deny having sent the message (authentication and non-repudiation), and that the message was not altered in transit (integrity).

Digital signatures are a standard element of most cryptographic protocol suites, and are commonly used for software distribution, financial transactions, contract management software, and in other cases where it is important to detect forgery or tampering.

Electronic signatures are different but only by degree and focus:

An electronic signature is intended to provide a secure and accurate identification method for the signatory to provide a seamless transaction. Definitions of electronic signatures vary depending on the applicable jurisdiction. A common denominator in most countries is the level of an advanced electronic signature requiring that:

  1. The signatory can be uniquely identified and linked to the signature
  2. The signatory must have sole control of the private key that was used to create the electronic signature
  3. The signature must be capable of identifying if its accompanying data has been tampered with after the message was signed
  4. In the event that the accompanying data has been changed, the signature must be invalidated[6]

Electronic signatures may be created with increasing levels of security, with each having its own set of requirements and means of creation on various levels that prove the validity of the signature. To provide an even stronger probative value than the above described advanced electronic signature, some countries like the European Union or Switzerland introduced the qualified electronic signature. It is difficult to challenge the authorship of a statement signed with a qualified electronic signature – the statement is non-reputable.[7] Technically, a qualified electronic signature is implemented through an advanced electronic signature that utilizes a digital certificate, which has been encrypted through a security signature-creating device [8] and which has been authenticated by a qualified trust service provider.[9]

PLEADING:

Comes Now Defendants and Move to Dismiss the instant action for lack of personal and subject matter jurisdiction and as grounds therefor say as follows:

  1. The named plaintiff in this action does not exist.
  2. After extensive investigation and inquiry, neither Defendants nor undersigned counsel nor forensic experts can find any evidence that the alleged trust ever existed, much less conducted business.
  3. There is no evidence that the alleged trustee ever ACTUALLY conducted any business in the name of the trust, much less a purchase of loans, much less the purchase of the subject loan.
  4. There is no evidence that the Trust exists nor any evidence that the Trust’s name has ever been used except in the context of (1) “foreclosure” which has, in the opinion, of forensic experts, merely a cloak for the continuing theft of investor money and assets to the detriment of both the real parties in interest and the Defendants and (2) the sale of bonds to investors falsely presented as having been issued by the “trust”, the proceeds of which “sale” was never received by the trust.
  5. Upon due diligence before filing such a lawsuit causing the forfeiture of homestead property, counsel knew or should have known that the Trust never existed nor has any business ever been conducted in the name of the Trust except the sale of bonds allegedly issued by the Trust and the use of the name of the trust to sue in foreclosure.
  6. As for the sale of the bonds allegedly issued by the Trust there is no evidence that the Trust ever issued said bonds and there is (a) no evidence the Trust received any funds ever from the sale of bonds or any other source and (b) having no assets, money or bank account, there is no possible evidence that the Trust acquired any assets, business or even incurred any liabilities.
  7. Wells Fargo, individually and not as Trustee, has engaged in a widespread pattern of behavior of presenting itself as Trustee of non existent Trusts and should be sanctioned to prevent it or anyone else in the banking industry from engaging in such conduct.

WHEREFORE Defendants pray this Honorable Court will dismiss the instant complaint with prejudice, award attorneys fees, costs and sanctions against opposing counsel and Wells Fargo individually and not as Trustee of a nonexistent Trust for falsely presenting itself as the Trustee of a Trust it knew or should have known had no existence.

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The Mortgage Loan Schedule: Ascension of a False Self-Serving Document

At no time were the Trusts anything but figments of the imagination of investment banks.

As an exhibit to the alleged Pooling and Servicing Agreement, the Mortgage Loan Schedule” appears to have legitimacy. Peel off one layer and it is an obvious fraud upon the court.

The only reason the banks don’t allege holder in due course status is because nobody in their chain ever paid anything. The transactions referred to by the assignment or endorsement or any other document never happened — but they are  wrongly presumed to be true.

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

Our Services: https://livinglies.me/2016/04/11/what-can-you-do-for-me-an-overview-of-services-offered-by-neil-garfield/

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I’m seeing more and more cases where once again the goal post keeps moving, in order to keep the court and foreclosure defense counsel off balance. Now it is the attachment of a “Mortgage Loan Schedule” [MLS] to the PSA. As an exhibit to the alleged Pooling and Servicing Agreement, the “Mortgage Loan Schedule” appears to have legitimacy. Peel off one layer and it is an obvious fraud upon the court.

Here is my thought. The MLS supposedly attached to the PSA never has any proof as to when it was attached. It has the same problem as the undated endorsement on the note only worse. It is not a facially valid document of transfer. It relies, derivatively on the PSA that was created long before an MLS existed even if they were telling the truth (which they are not — the trusts are empty).

The securitization process is described in the Pooling and Servicing Agreement along with the parties who are involved in the purchase, Sale and ownership of the alleged loans that were “purchased” by the Trust. But there was no purchase. If there was a purchase the bank would assert status as a holder in due course, prove the payment and the borrower would have no defenses against the Trust, even if there were terrible violations of the lending laws.

First you create the trust and then after you have sold the MBS to investors you are supposed turn over the proceeds of the sale of mortgage backed securities (MBS) to the Trustee for the Trust. This never happened in any of the thousands of Trusts I have reviewed. But assuming for a moment that the proceeds of sale of MBS were turned over to the Trust or Trustee THEN there is a transaction in which the Trust purchases the loan.

The MLS, if it was real, would be attached to assignments of mortgages and bulk endorsements — not attached to the PSA. The MLS as an exhibit to the PSA is an exercise in fiction. Adhering strictly to the wording in the PSA and established law from the Internal Revenue Code for REMIC Trusts, and New York State law which is the place of origination of the common law trusts, you would THEN sell the loan to the trust through the mechanism in the PSA. Hence the MLS cannot by any stretch of the imagination have existed at the time the Trust was created because the condition precedent to acquiring the loans is getting the money to buy them.

The MLS is a self serving document that is not proven as a business record of any entity nor is there any testimony that says that this is in the business records of the Trust (or any of the Trust entities) because the Trust doesn’t have any business records (or even a bank account for that matter).

They can rely all they want on business records for payment processing but the servicer has nothing to do with the original transaction in which they SAY that there was a purchase of the loans on the schedule. The servicer has no knowledge about the putative transaction in which the loans were purchased.

And we keep coming back to the same point that is inescapable. If a party pays for the negotiable instrument (assuming it qualifies as a negotiable instrument) then THAT purchasing party becomes a holder in due course, unless they were acting in bad faith or knew of the borrower’s defenses. It is a deep stretch to say that the Trustee knew of the borrower’s defenses or even of the existence of the “closing.”By alleging and proving the purchase by an innocent third party in the marketplace, there would be no defenses to the enforcement of the note nor of the mortgage. There would be no foreclosure defenses with very few exceptions.

There is no rational business or legal reason for NOT asserting that the Trust is a holder in due course because the risk of loss, if an innocent third party pays for the paper, shifts to the maker (i.e., the homeowner, who is left to sue the parties who committed the violations of lending laws etc.). The only reason the banks don’t allege holder in due course status is because nobody in their chain ever paid anything. There were no transactions in which the loans were purchased because they were already funded using investor money in a manner inconsistent with the prospectus, the PSA and state and federal law.

Hence the absence of a claim for holder in due course status corroborates my factual findings that none of the trusts were funded, none of the proceeds of sale of MBS was ever turned over to the trusts, none of the trusts bought anything because the Trust had no assets, or even a bank account, and none of the Trusts were operating entities even during the cutoff period. At no time were the Trusts anything but figments of the imagination of investment banks. Their existence or nonexistence was 100% controlled by the investment bank who in reality was offering false certificates to investors issued by entities that were known to be worthless.

Hence the bogus claim that the MLS is an attachment to the PSA, that it is part of the PSA, that the Trust owns anything, much less loans. The MLS is just another vehicle by which banks are intentionally confusing the courts. But nothing can change the fact that none of the paper they produce in court refers to anything other than a fictional transaction.

So the next question people keep asking me is “OK, so who is the creditor.” The answer is that there is no “creditor,” and yes I know how crazy that sounds. There exists a claim by the people or entities whose money was used to grant what appeared to be real residential mortgage loans. But there was no loan. Because there was no lender. And there was no loan contract, so there is nothing to be enforced except in equity for unjust enrichment. If the investment banks had played fair, the Trusts would have been holders in due course and the investors would have been safe.

But the investors are stuck in cyberspace without any knowledge of their claims, in most instances. The fund managers who figured it out got fat settlements from the investment banks. The proper claimant is a group of investors whose money was diverted into a dynamic commingled dark pool instead of the money going to the REMIC Trusts.

These investors have claims against the investment banks at law, and they have claims in equity against homeowners who received the benefit of the investors’ money but no claim to the note or mortgage. And the investors would do well for themselves and the homeowners (who are wrongly described as “borrowers”) if they started up their own servicing operations instead of relying upon servicers who have no interest in preserving the value of the “asset” — i.e., the claim against homeowners for recovery of their investment dollars that were misused by the investment banks. An educated investor is the path out of this farce.

 

US TRUSTEES ATTACKING PRETENDER LENDER STANDING IN MLS

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

In his experience, Mr. Shaev said: “The attorneys who represent the banks invariably state that they will get the collateral file for us and prove that the banks had possession of the documents at the appropriate time. But then when we review the file it doesn’t show that at all.”

“The Central Question rising to the surface and now unavoidable is whether a party claiming to be a secured creditor would prevail if there was a normal adversary hearing on the merits where the normal rules of evidence apply” — Neil F Garfield

EDITOR’S NOTE:  In bankruptcy courts across the country, pretender lenders have been able to rely upon an unwritten code wherein a motion to lift stay (MLS) filed by a secured creditor would be unopposed by the trustee. The pretender lender would not only be free to continue with judicial or nonjudicial foreclosure and sale, they would also have the appearance of a court order  apparently confirming their right to foreclose.

When I first broached the subject with various US trustees around the country in 2007 and 2008 they were extremely skeptical. I proposed a business model to them which would provide the protection to the debtor that was intended by the Constitution and the statutes governing the substance of bankruptcy petitions.  I showed them that the US trustee, the attorney for the US trustee, the creditors, and the attorney for the debtor would all be able to share in a larger estate and thus earned more fees than was currently the case where a home was in foreclosure.

It was my opinion then and it is my opinion now that not only do the pretender lenders lack standing to pursue a foreclosure, but that there does not appear to be any credible party in the securitization chain who would possess such standing. It was my opinion that the participants in the securitization scheme had hopelessly obscured the obligation and split the obligation from the note and mortgage as well as splitting the note from the mortgage.

Thus while the obligation clearly exists, subject to offsets and counterclaims, there is no law or legal theory under which the obligation was in fact secured. The US trustees in bankruptcy were not only skeptical, they were actually opposed to my plan because they did not want to be part of any procedure by which a borrower abused the judicial process in order to gain a windfall or undue advantage.

In a major change of policy, US trustees in bankruptcy court are now challenging the standing and viability of the claims made by the pretender lenders. The premise was that if a lawyer came to bankruptcy court claiming to represent a lender that was secured by a mortgage on the property it was presumed that the representation to the court was true. As we have seen in various news reports there are good reasons to question whether the attorney represents anyone, whether any of the parties to whom the attorney refers is an actual creditor, and whether the claim is secured by a mortgage on the home.

The wrongful foreclosure damage actions are giving pause to everyone involved in the closing of these deals and in the processing of the “foreclosures.” Invariably, the old trustee on a deed of trust is substituted with one with whom the pretender lender has an ‘arrangement” concerning going forward, regardless of the obstacles.

The employment of  intermediaries used to obscure the fraud in the sale of the bogus mortgage bonds and the bogus mortgage loans are the business model for the employment of intermediaries used to obscure the fraud on the court in foreclosures.

These intermediaries — originators, brokers, title agents, escrow agents, appraisers, trustees, and foreclosure companies are all in the cross hairs of lawyers across the country who are suing for individual or class action relief. Any party moving forward at this point can be held to the “knew or should have known” status required for a fraudulent foreclosure or slander of title action. If it is negligence, there might be insurance coverage. If it is viewed as an intentional act of fraud, the insurer for errors and omissions might decline coverage for even the defense of the action.

The megabanks have intentionally and in so many words set up various “bankruptcy remote” vehicles that are intended to insulate them from liability in case this thing explodes in their faces. They wish to protect their claim of plausible deniability and point the finger at the actual people who got the hands dirty — as the recent closing of  David Stern’s office in Florida demonstrates. These remote vehicles are submitting credit bids at auction which are by all accounts not only illegal, but void.

Any issuance of a title document reflecting a “credit bid” is essentially a “wild deed,” — i.e., one that can and would be ignored by a title examiner. This leads to the inevitable conclusion that nearly all REO property is still legally owned by the homeowners who believe their home was foreclosed and sold.

The central question that is gradually rising to the surface is simply whether or not a party claiming to be a creditor could sustain its burden of proof in a normal evidentiary hearing. The presumptions that were used before the securitization of residential mortgage loans made sense when the transaction lacked the complexity and duplicity inherent in the scheme of securitization as it was practiced by Wall Street. It is now apparent to many judges, many lawyers, many people in the media, many homeowners, and now US trustees in bankruptcy, that the old presumptions do not apply.

In plain language, the parties claiming to be creditors are not creditors, because the bankruptcy estate does not owe them any money. The same is true in federal and state civil court. The mega banks took advantage of their appearance of propriety and the old presumptions and made the judicial system of vehicle for fraudulent conveyances. The resulting chaos in the chain of title, claims under title insurance, and the inability to obtain a satisfaction of mortgage from a party that is authorized to execute it is the major challenge confronting the legal system.

This has thrust an enormous burden on the offices of the  property appraiser and County recorder across the country. 66 million transactions involving “wild deeds” are now in the chains of title in tens of millions of homes.

The resolution to this crisis is obvious even if it is odious. It has happened in the past that title records have been corrupted beyond repair. It becomes necessary to push a figurative “reset” button with a window of opportunity for those affected to present their claims in a manner required by the court and the legislature of each state. It is in this process that the homeowners will receive an opportunity to obtain some relief while the investors who advanced the funds for the loans recover as much as possible.

LLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLL

November 27, 2010

Don’t Just Tell Us. Show Us That You Can Foreclose.

SYSTEMIC CHANGE NEEDED

By GRETCHEN MORGENSON

NY TIMES

AFTER examining their foreclosure practices for flaws in mortgage documentation and other procedures, many of the nation’s largest banks have resumed — or will soon resume — trying to evict defaulted borrowers.

JPMorgan Chase, for example, told investors this month that it had extensively reviewed its foreclosure controls, trained personnel in the unit and started new procedures to ensure that all legal requirements would be met when it moves to seize a property in default.

“If we find any foreclosures in error, we will fix them,” JPMorgan Chase said.

But while banks may have booted a few robo-signers and tightened up some lax procedures, one question at the heart of the foreclosure mess refuses to go away: whether institutions trying to take back a property can prove they even have the right to foreclose at all.

Some in the industry believe that questions about this issue — known as “legal standing” — are trivial. They say it’s just a gambit by borrowers’ lawyers to throw sand in the foreclosure machine. Nine times out of 10, bankers say, the right institutions are foreclosing on the right borrowers.

Maybe so. But the United States Trustee Program, the unit of the Justice Department charged with overseeing the integrity of the nation’s bankruptcy courts, is taking a different view. The unit is stepping up its scrutiny of the veracity of banks’ claims against borrowers, and its approach is evident in two cases in federal bankruptcy court in Atlanta.

In both cases, Donald F. Walton, the United States trustee for the region, has intervened, filing motions contending that the banks trying to foreclose have not shown they have the right to do so.

The matters involve borrowers operating under Chapter 13 bankruptcy plans overseen by the court in the Northern District of Georgia. In both cases, the banks have filed motions with the bankruptcy court to remove the automatic foreclosure stay that results when a court confirms a debtor’s Chapter 13 repayment plan. If the stay is removed, the banks can foreclose.

In one case, the borrower had her Chapter 13 plan confirmed by the court early last month. About two weeks later, Wells Fargo asked the court for relief from the stay so that it could foreclose.

Responding on Nov. 16, Mr. Walton asked the court to deny the bank’s request because it had failed to produce any facts showing that it was entitled to foreclose — either as the holder of the underlying note or as the agent for the holder.

The other case involves a couple who had their Chapter 13 plan confirmed by the court in March 2009. A month ago, Chase Home Finance, a unit of JPMorgan Chase, asked the court for relief from the automatic stay so that it could start foreclosure proceedings.

Again, Mr. Walton objected, asking the court to deny the request on the same grounds as argued in the Wells Fargo matter — in this case, that Chase hadn’t proved that it controlled the note on the property.

Jane Limprecht, a spokeswoman for the trustee program, confirmed that it was ratcheting up its scrutiny on banks’ foreclosure practices.

“The United States Trustee Program is engaged in an enhanced review of mortgage servicer filings in bankruptcy cases to help ensure the accuracy of the claim to repayment,” she said. She declined to comment on specific filings.

A Chase spokesman said the bank is the holder of the note in the Georgia case, giving it standing to file the motion.

A spokeswoman for Wells Fargo said that in its case, it is the trustee of a mortgage security that contains the loan, not the servicer. In its capacity as the trustee for mortgage loans serviced by others, it says it expects those servicers to abide by all required laws, processes and procedures.

Howard D. Rothbloom, a lawyer in Atlanta who represents borrowers in bankruptcy, welcomed the actions by Mr. Walton and said he believes they show a sea change in the United States trustee’s thinking on the foreclosure mess.

“Until now, what we had was homeowners complaining about a lack of due process,” Mr. Rothbloom said. “Now you have the federal government complaining about the abuse of the judicial process. That’s really what was missing before.”

The judges overseeing these matters have not yet ruled on the banks’ or the trustee’s requests. And Wells Fargo and Chase may indeed be able to persuade the trustee that their filings were proper.

But the trustee’s intervention in these matters indicates that it wants banks to show the courts that they have the right to foreclose, rather than simply telling them they do. That had been the custom, after all. Now, Mr. Walton’s motions may serve as a warning to banks that they need to be better prepared if they want to foreclose on a borrower.

“For years, the trustee would always take the creditors’ side,” Mr. Rothbloom said. “My strong opinion is the U.S. trustee’s perspective is that they exist to stop borrowers from cheating banks. Perhaps they are coming to the realization that banks can also cheat borrowers.”

FEDERAL trustees in other parts of the country have also intervened in borrower cases, but many of these actions have been related to questionable foreclosure fees or to dubious legal or documentation practices. The shift to a broader focus on the issue of standing suggests that the courts may no longer accept at face value the banks’ arguments that they have the right to foreclose or represent the institution that does.

David Shaev, a lawyer in New York who works with troubled borrowers, says the United States trustee there has also intervened in one of his cases, taking up the issue of a bank’s right to foreclose.

In his experience, Mr. Shaev said: “The attorneys who represent the banks invariably state that they will get the collateral file for us and prove that the banks had possession of the documents at the appropriate time. But then when we review the file it doesn’t show that at all.”

As many large banks renew their foreclosure efforts, Mr. Rothbloom says he hopes that the United States trustee will bring about a comprehensive change in bank practices.

“I’ve gotten resolutions for clients in individual cases, but I’m just a flea on the tail of an elephant,” he said. “Resolutions of individual cases don’t bring about systemic change.”

And systemic change is precisely what’s needed.

BANKRUPTCY PRACTICE: NAME ONLY THE ORIGINATING LENDER OF RECORD

submitted by Brian Davies

EDITOR’S NOTE: By naming only the originating lender of record — that is, the only instrument in the title record as per the county recording office, you immediately shift the burden onto any pretender lender to explain what they are doing in court. If you look down into the records in the link below you’ll see Davies objection and some excellent points he raises. My opinion is that the property value is unknown and unencumbered by a mortgage, if you know about the securitization path. Combine that with our loan specific title review, you get a value to put in if you want to, and then name only the originating lender as a creditor under unsecured claims because the mortgage was split from the note and note was split from the obligation. The MERS assignment is icing on the cake.

It’s my opinion that if you show the home as encumbered by the mortgage it is an admission of the validity of the encumbrance. That is an admission of a “fact” that is probably false. Why would you do that? In my opinion, generally speaking, NONE of these securitized “mortgages” are secured, NONE of the obligations are properly or legally described in the note and NONE of them are properly secured with a perfected lien in favor of an actual creditor. The security instrument is an “incident” to the note. But the note neither names the actual creditor nor discloses the true facts of the deal. The note is contrary to the Good Faith Estimate in that respect as well (a TILA violation).

So the obligation that arose when the borrower took the money is NOT described in the note, at least not completely. That means that the note, which is normally presumed to be evidence of the obligation, is not a complete description of the obligation and in fact is not even correct insofar as it identifies the creditor or lender. The note also does not contain the terms of the mortgage bond given to the lender (investor).

The mortgage bond received by the lender (investor) contains terms and parties that are not included in the note. Neither the bond nor the note are complete descriptions of the obligation.

Thus neither the note nor the bond can be accepted into evidence as the complete statement of the obligation. Even together they fail to show the actual path that the money traveled and they provide the context and conditions under which the note or mortgage could be accepted by the pool —- conditions that were in nearly ALL cases unfulfilled. There can be no proper accounting of the amount due nor a determination of whether there is  an actual default (failure of the CREDITOR to receive payment, not merely the the failure of the borrower to make a payment which might not be due).

MOTION FOR RELIEF FROM STAY BY ONEWEST. A PARTY NOT EVEN MENTIONED IN THE CHAPTER 7 FILING. HOWEVER, MOVANT ONEWEST COMES INTO THE COURT WITH 1) NO STANDING, 2) FALSIFIED AFFIDAVITS 3) DISCOLORED NOTES NOT COPIES OF THE ORIGINALS 4) SIGNED AFFIDAVITS BY BRIAN BARNHILL THAT ARE INACCURATE 5) DEED OF TRUST THAT IS FAULTY AND NOT PERFECTED 6) A SECOND ASSIGNMENT OF THE DEED OF TRUST WHICH TRIES TO CORRECT SECURITY INTEREST AND TITLE ISSUES.. DEBTOR ASKS FOR SANCTIONS. READ THE ENTIRETY AS IT IS LISTED AS UNSECURED DEBT, ONLY ORIGINATOR IS LISTED

http://www.scribd.com/doc/39002836/ONEWEST-HAS-NO-STANDING-MOTION-FOR-RELIEF-FROM-STAY-WITH-OBJECTIONS

They will get caught

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