What should I pay my attorney?

Like all professions the practice of law mostly involves activities that the client never sees. And it is the quantity and quality of work by the attorney that is the largest factor in getting a good result.

The best result is having the foreclosure dismissed or vacated with findings of fact that make it virtually impossible for the foreclosing party to try again. To get that result you need experienced trial counsel who does all the work he/she thinks is necessary to achieve the goal. Those are at the top of winning food chain.

If you must pay less then you must lower your goal or buy a winning lottery ticket.

Let us help you plan your foreclosure defense strategy, discovery requests and defense narrative: 202-838-6345. Ask for a Consult


Get a Consult and TEAR (Title & Encumbrances Analysis and & Report) 202-838-6345. The TEAR replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).




There are some lawyers to whom I refer clients for representation.  Like me, they like to win — not merely justify a fee. They don’t consider “delaying the inevitable” to be a winning or even viable strategy, mainly because they don’t believe that foreclosure is inevitable. I consider their fees to be very reasonable.

On the issue of attorney fees, I have a story. When I first started practicing law I worked in the law office of what I then considered to be an “older” lawyer — i.e., a little more than 1/2 my present age. His wife was the bookkeeper. She was the one that had to argue with clients to pay the fees that were charged. Eventually people who were complaining or objecting said the obvious — that other lawyers charge less for the “same work” —  which was true. So she put up a sign in the waiting room that said the following:

“If you want nice fresh oats we can give them to you at a reasonable price. But if you are satisfied with oats that have already been through the horse, you can get them for a lot less.”

Moral of the story: It’s not the hourly rate you should be shopping for. And it’s not the length of time it takes to get there that counts. It’s the result. The only way to get legal representation is to pay for it. The question is cost of services vs cost of losing the home.

I hear many complaints from homeowners about how the lawyer didn’t do all the things that could have been done — discovery, motions, trial preparation etc. They are right in most cases that the lawyer did not do the work that now, in retrospect, the client would have liked. But in almost all cases, the problem was not with the lawyer; it was with the client who couldn’t pay or didn’t want to pay for the full work load.

To put numbers to this issue, if you are paying the equivalent of $100 per hour, don’t expect the lawyer to drop everything and concentrate for days on developing a defense narrative that the lawyer thinks he can “sell” to the trial court. If you are paying a few hundred dollars per month the result is the same. The lawyer owes you nothing except to provide the services you pay for.

If your retainer agreement calls for billing at $450+ per hour, you have every right to expect the full job to be done. Likewise if you are paying $2500+ per month, you can expect the full job to be done.

If you are paying $300 per month and expecting services worth $2500 per month you are mistaken. Those services will not be delivered which means that discovery, motions to compel, motions for summary judgment, depositions, trial preparation will either not get done at all or will be perfunctory.

I generally don’t litigate in court anymore. I serve as consultant, writer, researcher and expert witness on cases involving the securitization of debt. I have been actually licensed by government agencies and securities trade groups to do business literally on Wall Street in Manhattan and I did so. My hourly rate is $650 per hour for my time and $150 per hour for paralegal time. The fee is justified not only by our past successes but because we can actually accomplish more in less time and we win (not all the time). So while our customers are paying $650 per hour, in many cases it only takes an hour for me to do my work because I have so much experience with similar cases and fact patterns. Other less experienced lawyers either take much longer for the same job (thus increasing the cost of the project) or they might not take time to do what lawyers are really paid to do — think.

I am not engaging in a discussion about what our judicial system should look like. I am merely dealing with reality. In a capitalist economy where everything is measured in monetary value, everything happens because of money. It’s the fuel that pushes things along. Without the fuel, the horse simply lays down and takes a nap.

“Participants” in False Claims of Securitization

What do you think the average homeowner would have said if he was told “Look, the actual lender is someone else but we want you to name us as the lender.”

Get a consult! 202-838-6345

https://www.vcita.com/v/lendinglies to schedule CONSULT, leave message or make payments.

see http://bpinvestigativeagency.com/beware-the-lsf9-master-participation-trust-is-operating-as-a-secret-agent/

Bill Paatalo has uncovered another layer of onion skin revealing the emptiness of the claims of participants who say they were involved in either the lending of money to homeowners or involved in the transfer of the obligation to repay the alleged loan. As he points out, some refer to “participants” who are ill-defined and essentially unknown quantities. There are many such entities lurking behind the curtain. The one thing they have in common is that they are all making pornographic amounts of money that ultimately comes out of the pockets of investors who were deceived into buying, hedging or insuring bogus and worthless MBS.

The essential fact is that those mortgage backed securities are (a) not backed by anything (b) issued by an empty SPV (Trust) entity existing only on paper (c) completely unrelated to any actual transaction and (d) completely unrelated to the documentation that was fabricated and executed at the “loan” closing.

GASLIGHT: None of the “participants” are who they appear or claim. What is emerging is that in addition to playing musical chairs with actual entities, the banks have created musical terms to the multiple players who are in constant motion switching roles on paper. Several judges have either mused from the bench or confided their discomfort as to why the servicers keep changing and the ownership goes through so many iterations.

The good news is that this is leading to inconsistencies between their correspondence with the borrower, their pleading in court and their proof — often with last minute Powers of Attorney. It appears that all of them are sham conduits for the the ultimate sham entities — the underwriter (“Master Servicer”) of MBS issued by the empty trust and the Seller of those securities. Revealing those inconsistencies often leads to victory (successful defense) in court. And it often can lead to large cash awards for damages arising from violations of FDCPA, FCCPA, RESPA and common law doctrines like wrongful foreclosure — with aggravating circumstances permitting the award of punitive damages.

The reason for all of this chicanery is simple: the party who gave the homeowner money didn’t even know it was their money on the “closing” table. But the moral and legal view on this is that he who gave the money is owed the money in return (unless it is a gift). This is true regardless of what documents are drafted or even executed by homeowners whose signature was obtained by fraud in the inducement.

What do you think the average homeowner would have said if he was told “Look the actual lender is someone else but we want you to name us as the lender.” THAT is a cause of action for common law rescission and cancellation of the instrument — once the homeowner finds out that he made the “check” out to the wrong person. Since the designated “lender” gave no money of its own and assumed no risk of loss the homeowner cannot be required to give “back” what he or she never received from the fake lender.

Adam Levitin might be right in calling it “Securitization Fail” because the securitization never happened; but it assumes that the intent was to have securitization succeed. This is not the case. The entire business model of the banks, as confirmed by industry insiders, was to take the money out of the securitization chain that had been created on paper.  Actual securitization of debt in residential “transactions” was never intended to happen. It was always supposed to be an illusion to cover criminal and civil theft.

PRACTICE HINT: Assume none of the transactions that are represented, assumed or presumed ever happened. Aim your discovery, motions, trial objections and cross examination at that and you will have the best shot at hitting the bulls-eye. That is exactly how Patrick Giunta and I won our cases.

Peaking Inside the Mind of a Trial Lawyer

Knowing that there was fraud, robo-signing, fabrication, forgery is not enough. The trial lawyer must know how to prevent admission of false facts into evidence and how the robo-witness testimony will be discredited.

Get a consult! 202-838-6345

https://www.vcita.com/v/lendinglies to schedule CONSULT, leave message or make payments.
People often ask us to do a title and securitization report, as though that is going to be the golden keys to the kingdom. We tell them that a flat title report and a flat securitization report is not only incomplete it is misleading. For example, when documents are uploaded by an unidentified person to http://www.sec.gov, many people respond by “Found it!!”
In truth all that has been found is the CLAIM that the loan was securitized and the CLAIM that a Trust exists and the CLAIM that the Trust actually acquired the loan. There is no restriction on what can be posted to http://www.sec.gov. Many a fraudulent foreclosure has been the result of a legal sleight of hand — uploading what appears to be trust documents even if they are unsigned and lacking the exhibits referred to in the Pooling and Servicing Agreement. THEN they ask the court to take judicial notice or at least to presume that a copy of the document produced in the courtroom is an authentic, valid document giving the Trust the right to appoint servicers, agents etc.
Like everything else in 95% of all foreclosure proceedings, they are based upon self serving documents fabricated by undisclosed third parties who have nothing to do with the creation of the trust, the activities of the trust, the acquisition of loans or the foreclosure of mortgages that were never owned by the trust.

Title and securitization reports should neither be (a) a straight up report on title history (going back 2-3 owners) and securitization search and/or (b) analysis of the real story PLUS ways to undermine the foreclosure case and win the day. I have a track record of winning those cases and the method I used is the basis for all our work.


What lay people do not understand because they have no education and training to understand it, is that trial work is like brain surgery. The brain surgeon knows that genetics and bad life choices are what caused the patient to be in need of his services. He might even believe that companies should not be allowed to push the foods and medications on people that undermine health. But when he/she steps into the operating room, he/she has a much narrower scope — drilling and cutting into the scull to get to the part of the brain where he can perform effective repairs. All the rest doesn’t matter at that moment.


A trial lawyer prepares for trial from the moment he receives a case. A good trial lawyer develops two narratives — one is the internal narrative that he/she knows and will serve as the basis for making decisions and assumptions in discovery and at trial and the other is the external narrative which is the limited story and is directly related to the (a) the things he/she wants to block from evidence and (b) the things he/she wants in evidence. When he/she steps into the court room the internal narrative is good to know but is mostly irrelevant to the issues that will be heard at trial.


So for example, people say securitization is bad or illegal. Actually it is not and there is no reason why it should be. Diluting risk among many investors is the cornerstone of capitalism.


The internal narrative is that the way securitization was practiced in real life was wrong, illegal and probably criminal. The internal narrative is that the Trust was never funded and therefore could never have purchased any loans. These facts are known in the mind of the trial lawyer but he/she will make no attempt to prove them because the Court in all likelihood would not allow it. But KNOWING the internal narrative leads to conclusions about weaknesses in the case of the opposing attorney. If the Trust never acquired the loan, the Trust had no right to be appointing servicers, agents, etc. and the Trustee had no power or relationship to the loan in litigation. The internal narrative is also that the loan contract never existed.

The external narrative (the one used in court) is that there is insufficient evidence that the Trust owned the subject loan, and insufficient evidence that the so-called servicer had any right to service the loan.


Using the external narrative the trial lawyer attacks the inconsistencies between the testimony, the trust documents (paying special attention to the exhibits to the PSA which are frequently blank), and the attempt to hop over those defects by suddenly coming up with a Power of Attorney that STILL comes from the Trust (or a third party who was never in the alleged chain of documents proffered by the attorney for the foreclosing party).


The trial attorney attacks by using objections and cross examination to reveal the defects in the position of the party alleging it has the right to foreclose and in the position of the servicer who sends a representative of the servicer to court as a robo-witness who in truth knows nothing.


We help by preparing the best possible route for discovery strategy and preparation for trial.


For a long time we provided a flat report that was put into the hands of pro se litigants and lawyers who really were not trial lawyers and therefore did not have an adequate strategy for using the reports.  There are many vendors who produce a 2 dimensional report promoted as 3 dimensional. It is a flat report that tells the customer nothing about how to use the report and gives unfiltered opinions about potential defects in the foreclosure case.


We provide guidance as to what services should be ordered but we cannot provide legal advice unless it is (a) me on the phone and (b) a case pending in Florida. That is why we strongly recommend that when booking a consult, you have on the line an attorney who is licensed to practice in the jurisdiction in which the property is located.


After attempting to drive down the price of services by commoditizing the reports, it is now apparent that such reports are at best helpful only in the hands of a good trial attorney and at worst, misleading in that inexperienced pro se litigants and lawyers take the report into court as though it is evidence and attempt to get the court to rule upon what is obviously a document, which is hearsay.


So we are now concentrating on providing highly interactive paralegal services to support lawyers and their clients when litigating a foreclosure case. Yes we still provide reports, but our focus is now on actually drafting the operable pleadings, motions and memoranda needed to properly litigate a case and to provide actual scripts that can be used as guides for what actually happens in court.


Watch these pages for further assistance. We are re-starting our seminar series — “Garfield Continuum” with a short inexpensive seminar called “OBJECTION!” for lawyers and their clients.


If you are seeking legal representation or other services call our South Florida customer service number at 954-495-9867 and for the West coast the number remains 520-405-1688. In Northern Florida and the Panhandle call 850-765-1236. Customer service for the livinglies store with workbooks, services and analysis remains the same at 520-405-1688. The people who answer the phone are NOT attorneys and NOT permitted to provide any legal advice, but they can guide you toward some of our products and services.


The selection of an attorney is an important decision  and should only be made after you have interviewed licensed attorneys familiar with investment banking, securities, property law, consumer law, mortgages, foreclosures, and collection procedures. This site is dedicated to providing those services directly or indirectly through attorneys seeking guidance or assistance in representing consumers and homeowners. We are available TO PROVIDE ACTIVE LITIGATION SUPPORT to any lawyer seeking assistance anywhere in the country, U.S. possessions and territories. Neil Garfield is a licensed member of the Florida Bar and is qualified to appear as an expert witness or litigator in in several states including the district of Columbia. The information on this blog is general information and should NEVER be considered to be advice on one specific case. Consultation with a licensed attorney is required in this highly complex field.

EDITOR’S NOTE: One good thing about House Bill 87 recently passed in the Florida legislature is that homeowner associations, condominium associations, and cooperative associations can force a bank to proceed with foreclosure. The problem they have is that once a homeowner knows that foreclosure is “inevitable” they stopped paying the Association dues as well as not making any payments on mortgage debt.

But I think the lead story is that these associations could stop the foreclosures altogether. As I have previously stated on these pages arguments that are frequently rejected by both the trial and appellate courts when they are proposed by homeowners are accepted and even augmented when the same argument is made by an institutional opponent to the foreclosure.

The associations may be included in the institutional category. In my opinion they should take advantage of the new portion of House Bill 87 when appropriate, but their focus should be on filing foreclosures on the homeowners who have not paid their dues. In that same foreclosure it is my opinion that the alleged mortgage that was recorded should be attacked as to both validity and priority.

When I was practicing law in South Florida in the 1970’s and 1980’s I represented hundreds of associations as general counsel and of course as trial counsel for the foreclosure of liens. generally foreclosures were not as pandemic as they are now but there were still plenty of them. The procedure is the same as the mortgage foreclosure.

  1. You plead that the association has the right to a lien as per the the Declaration of Condominium or other enabling document for the association.
  2. You plead that you gave adequate notice in accordance with the statutes.
  3. You plead the amount of monthly dies and special assessments due from this homeowner and you plead that no payments were made (not merely that the homeowner failed to pay). You might want to phrase it as “neither the homeowner nor any other stakeholder has made any payment to the association or its agents on this debt.” (This is to require the Bank to plead the same words).
  4. You plead that you filed the lien to secure past dues and future dues until the foreclosure judgment is entered and the property is sold.
  5. You plead that the dues were so much for monthly maintenance, so much for special assessments, and that the expenses of filing the lien and enforcing it with an attorney should also be awarded.
  6. You plead that all other lienholders are junior to the lien of the association unless you know otherwise. You plead that the mortgage lien recorded at page XX Book XX in the Public Records of the County is junior to the lien of the association.
  7. When the trial or Motion for Summary Judgment comes along you have a witness that verifies that they are the records keeper for the condominium as set forth under the Condominium Statutes, they have personal knowledge regarding the receipts and disbursements with respect to the account of this homeowner, they verify or testify what was received from all sources on this account, and that the balance due to the association, as a receivable, is a specific total amount arrived at through simple addition and subtraction.

When the HOA files such an action it is setting the standard for a foreclosure proceeding and it has the full authority of Florida Statutes behind it. Since in most cases the alleged owner of the mortgage lien is no longer the party named on the instrument, the Association can plead truthfully that this party has no interest in the debt and therefore is not entitled to enforce it nor argue for its validity or priority relative to the Association’s lien and foreclosure.

Any OTHER party would be required to intervene and prove that they can make and prove the SAME ALLEGATIONS AS THE ASSOCIATION — something they clearly cannot do. And if they try, depositions of the leading witnesses for the new guest to the party would occur revealing that they have no money trail to show that they funded either the origination or acquisition of the loan and that if they have any claim, it is unsecured and subject to a separate right of action against the borrower. Instead they have a bunch of fabricated paper that refers to financial transactions that never occurred in reality.

The usual end result, if the HOA is successful, and my firm is prepared to demonstrate this to any association that wants to hire us (or who wants to instruct their association attorneys to do it) is that the Association wins, the homeowner redeems the Association lien because it is a small fraction of the presumed lien of the mortgage and everyone is happy except the bank that tried to foreclose who finds itself foreclosed out of the mortgage.

Or the Association becomes the owner of the property at a foreclosure sale or some other person outbids the association WITH CASH and the association lien is satisfied, along with a new owner who pays the monthly and special assessments.

This is going to cause all the players in the false securitization scheme that masked a massive PONZI scheme a lot of trouble because the investors, insurers, government agencies, counterparties to credit default swaps and others who paid on this debt are going to find out through a Court Order that the whole thing was a sham and that the real lenders, the investors never had the bond secured nor was the mortgage debt ever subject to a valid claim through the bond, nor was it properly perfected and secured, so the mortgage filed in the county records was a sham.

HOAs have good reason to follow this strategy for themselves, their distressed homeowners who can be restored to ownership of the property without the illegal encumbrance filed by the the Wall Street players, and for the other homeowners whose property value decreases each time another foreclosure is filed.

John C. Goede: Can HOAs file for a court order requiring lenders to complete stalled foreclosures?

The Sneaky Game Banking Giants Are Playing to Suck More Money From the Foreclosure Crisis

WHY WOULD A BANK OF ALL THINGS PAY 6 TIMES WHAT THE PROPERTY IS WORTH UNLESS THEY WERE COVERING SOMETHING UP? Big banks sometimes pay 600% above value to retain Sarasota foreclosures

WHERE ARE THE CONVICTIONS OF THE BANK OFFICERS WHO TURNED THIEVERY INTO POLICY? More than 40 convictions in mortgage fraud scheme involving Florida properties, Ohio straw buyers

WHY DO BANKS WANT US HOMELESS? Our bank wants us homeless

Does Your Mortgage Receive Your Full Attention?


Trick Questions From the Judge

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I had a question from a reader recently that got me to thinking about the rules of civil procedure for which I received the book award when I was in law school. I’m not boasting, I’m apologizing for not thinking of this before. If you have a hearing on a motion to quash, motion to dismiss, motion for summary judgment or any other hearing in which it has not been specifically noticed as an evidential hearing at which witnesses and exhibits will be proffered as evidence, then you should challenge the Judge if he asks you a factual question.

The appropriate answer is something like this (Check with local counsel): “Judge, this hearing was noticed as a hearing on the motion filed by XXXX, and relates to oral argument regarding the legal sufficiency of YYYY. I am reluctant to answer your question because it turns the hearing, over my strenuous objection, into an evidential hearing, for which I have had no notice, no opportunity to prepare and no opportunity to gather witnesses. Your question further presumes a fact that is not in evidence which is whether or not I ever had any financial transactions with these people or their predecessors — a fact that I have denied.”

The question in one form or another, is going to be something like”why did you buy a house you couldn’t afford?” or “isn’t that your signature on the note?” “When was your last payment” “Why did you stop paying on the note?” and on and on. Your answers should always be the same thread or message. I deny the transaction, I deny the note, I deny the mortgage (Deed of trust), I deny the obligation or debt, I deny the default, I deny these people have any actual viable claim, I deny they ever funded any loan to me (Don’t say ‘the loan’ as that has a different connotation), I deny they ever acquired any obligation due from me.

If they wish to plead and prove a case they can only do so if they have standing, which is a jurisdictional issue which must meet threshold requirements at the commencement of the foreclosure. In the absence of a statement that they entered into a transaction in which this would-be forecloser paid money and that they have a right to recover that money from me, they have failed to establish standing.

There is nothing in the statutes that says in a non-judicial foreclosure that the submissions filed by the beneficiary are presumed true. If challenged, they must prove their claim. Since the trustee is not empowered to conduct hearings, the matter is before the Court.

Since the would-be forecloser is the one seeking affirmative relief and the homeowner is seeking only defensive relief, the homeowner is entitled to know the allegations and documents that will be used to prove a case in foreclosure. The homeowner would then have the ability to admit or deny the facts alleged, assert affirmative defenses and even file a counterclaim.

Otherwise the homeowner is placed in the absurd position of guessing at the allegations and documents and witnesses, and then formulating a defense against what the homeowner supposes would be the allegations from the alleged creditor. The documents from the creditor or alleged beneficiary have in most cases never even been presented to the trustee, who is often entity owned or controlled by the party claiming to be the beneficiary. This explains our denial that the party posing as trustee is nothing of the sort. This is a strawman for the beneficiary. And that is why we deny that either the named trustee nor the alleged substitute trustee nor the beneficiary claimed in the notice of default or notice of sale are real.

If the Court wishes to allow the alleged creditor the opportunity to plead and prove its case, we of course cannot have or maintain any objection. But if the filings of the alleged creditor are presumed to be true by the Court, then the burden of persuasion is unfairly loaded on the homeowner who can defend himself only with facts that are peculiarly in the possession of the alleged creditor and alleged trustee. This again forces the homeowner to speculate on the nature of the claim against him and how it allegedly arose. Such a theory, besides violating applicable rules and statutes, might require or permit a potential defendant to rush to court to file a defense in advance of a claim filed by an injured party.

Unless it was an evidentiary hearing for which you had proper and adequate notice, the Judge has no business asking you a factual question or getting you to admit or deny a fact, regardless of whether you were sworn or not. The fact that he asked you that question is sufficient in itself to take it up on appeal. Your appeal would be based upon the fact that without notice required under CA rules of procedure, the Judge turned it into an evidentiary hearing, leaving the homeowner unprepared and unable to bring counsel etc.

If you appeal — I think you should bring it up on an interlocutory appeal which means an appeal before the case is over. Your argument is that the Judge’s bias was showing, sure, but your main argument is that he committed fatal errors in asking factual questions in a hearing that was never noticed, set or heard. If he wanted a factual hearing then you should have had the opportunity of bringing your witnesses, challenges to their witnesses, voir dire, cross examination and clarification of your answers to a surprise question from the Judge.

Check with local counsel about what that does to the Judge’s jurisdiction once the notice of appeal is filed. It MIGHT automatically stay the action. I don’t know. If you are beyond the time limit to file notice of appeal, you can file a motion for reconsideration and let him deny that too and then file the notice of appeal.

Foreclosure Defense: Motion to Vacate Final Default Summary Judgment


Case No.:
vs.                                DIVISION: 02

Comes now the defendant, xxxxxxxxxxxxxxx, PRO SE DEFENDENT, and hereby files their motion to vacate foreclosure judgment, pursuant to Rules 1.540(b) Fla. R. Civ. P., states:
Florida Rule of Civil Procedure 1.540(b) provides in pertinent part:
On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, decree, order, or proceeding for the following reasons:… (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) that the judgment or decree is void; This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, decree, order, or proceeding or to set aside a judgment or decree for fraud upon the court.

The Plaintiff has committed a fraud upon this court which has only become apparent to the Defendant within the last day, upon discovery that the “lender” bank and others have engaged in a pattern of fraud and deception across the country and the state of ————- in attempting to foreclose residential properties AFTER it has already been paid in full PLUS a fee for standing for an undisclosed lender.
Plaintiff’s allegations that the Plaintiff has not been paid are false is easily ascertainable by the 10k and 8k filings with Plaintiff’s sworn filings with the SEC, wherein the description of the instant loan transaction fits exactly with ALL loans that were securitized and eventually sold in shares to investors around the world. It was not until the last day that Defendant consulted with a knowledgeable consultant and attorney who informed him and demonstrated the fraud. Defendant assumed that because the Plaintiff refused to accept payment that the allegation they were making was that they had not received any payment on the note, when in fact, they had already been paid in full long before this action was commenced and contemporaneously with the loan closing. Plaintiff did not disclose that the loan had been paid, and did not disclose that the true holder in due course and the parties in possession of indorsement or the note itself have long since been owners of these mortgage documents, and in fact mislead this Defendant and the Court to believe the contrary. Defendant was only able to discover this fact upon consulting with an expert who advised me that the pattern and policy of Plaintiff was to treat ALL loans in this manner and that by granting Plaintiff the right to foreclose the court was essentially giving Plaintiff the money AND the property.
In fact, based upon the sworn filings of the Plaintiff with a Federal Agency under the Securities and Exchange Act of 1933, Plaintiff admits payment and it is clear that Payment occurred either PRIOR to the loan closing or within days after the loan closing took place. According to those filings full payment PLUS a fee of 2.5% was paid to Plaintiff by a mortgage aggregator, the “lender” never entered the loan on its balance sheet or in its filings with the FDIC, or any regulatory agency or even to its shareholders, because the transaction was classified as a service transaction represented solely on Plaintiff’s income statement.
In plain language, Plaintiff has been paid in full and wants the real property too and is about to get it unless this court allows the case to be tried on its merits.
In plain language, the Plaintiff’s own confusion as to what role they play is apparent in the names of entities used in the complaint, only one of which received judgment. This confusion is easily understood.
Plaintiff filed the foreclosure action and now is intent on taking title to the property in addition to having been paid in full PLUS a fee for standing in for the mortgage aggregator, who was the real lender, unregistered in the State of Florida to do business as an investment  bank.
The aggregator took title as Trustee of a mortgage pool to which many loans were assigned, not necessarily all real estate.
The aggregator purportedly assigned but did not record some interest in the note and mortgage in the instant action to a Special Purpose Vehicle which was owned and operated by an investment bank.
The SPV was established by a CDO (collateralized debt obligation) manager employed by the investment bank.
The CDO manager established what are known as tranches within the SPV and assigned parts of each pool to each tranche within the SPV.
The hierarchy of tranches guarantees and requires a misapplication of funds out of and contrary to compliance with the terms of the subject mortgage security instrument and note.
The subject pieces of the pool, that includes pieces of the subject mortgage and note, were then pledged to the buyers of certificates of debt instruments that were backed by and in substance convertible into equity shares of ownership of the subject mortgage and note.
Each buyer received a share of the subject mortgage and note along with a share of thousands of other mortgages and notes.
Each buyer was shown a AAA securities rating, insurance from AMBAC or similar entity and a credit default swap that guaranteed payment of the revenue flow.
Thus co-obligors were created, which Plaintiff failed to disclose at any time to this Defendant or this Court and failed to plead that the holder of the note had not been paid despite overcollateralization of the negotiable instruments and the creation of a reserve pool to make payment, insurance, guarantees, and credit default swaps.
This motion is filed because Defendant verily believes he will and should prevail on the merits, that the Plaintiff has been paid, that the holder in due course has been paid, and that the affidavits and representations of counsel were false, known to be false when made, and have been found to be false repeatedly in other cases around the country.
Defendant intends to file affirmative defenses for set off violations to the Truth in Lending Act, and a counterclaim for damages for RICO, TILA violations, usury, fraud in the inducement and fraud in the execution, damages for appraisal fraud, quiet title, and malicious abuse of process among other causes of action.
The failure to disclose the real parties, and all the fees paid to the undisclosed parties is a violation on the face of TILA, the contract between the parties, the Good Faith Estimate provided to Defendant, and fair dealing, in addition to a breach and in fact  total abdication of the fiduciary duty owed by a lender to its borrower in which underwriting standards were reduced to zero because the nominal lender did not perceive itself to be at risk.
This includes the undisclosed purchase of insurance that qualifies as mortgage insurance, credit default swaps that qualify as mortgage insurance, and guarantees from third parties, including but not limited to the mortgagors whose negotiable instruments were also assigned to tranches that had lower priority than that which the subject loan transaction was assigned, and the payments made by Defendant were in fact allocated and given not to the holder in due course of the subject mortgage and note, but to the CDO manager for allocation to tranches and securities which held a higher place in the hierarchy of the tranches within the SPV.
The entire scheme was intended to trick investors into investing their capital into securities that were unregistered and unregulated, using the Defendant’s signature as the issuer of the negotiable instrument which was perceived to give an inflated value to the derivative security purchased by those victimized investors.
This inflation of value was an exact reflection of the inflation of value that Plaintiff and its co-conspirators paid for when they hired an appraiser for the loan closing. Thus the borrower and the investor, the only real parties in interest to the transaction were both tricked, cheated and now, to add insult to injury, are being sued as the villains in someone else’s scheme.
The plaintiff ’s complaint fails to contain sufficient facts to establish who the plaintiff is and its relationship to the defendant and to the claim for foreclosure of a promissory note, including the date of the alleged assignment of the mortgage and note, and the identity of the owner of the subject promissory note. The complaint fails to sufficiently identify who the plaintiff is and fails to allege facts sufficient to determine the standing of the plaintiff.
Florida Rule of Civil Procedure 1.130(a) provides in pertinent part:
“All bonds, notes, bills of exchange, contracts, accounts, or documents upon which action may be brought or defense made, or a copy thereof or a copy of the portions thereof material to the pleadings, shall be incorporated in or attached to the pleading.”
Plaintiff attaches documents to its complaint that conflict with the allegations of material facts in the complaint in which the plaintiff claims that it “owns the Note” and
Mortgage by virtue of an unrecorded assignment that does not allege when the assignment occurred. These allegations conflict with the mortgage attached to the complaint that identifies MERITAGE MORTGAGE CORPORATION, as the lender with the security interest. These allegations therefore constitute serious misrepresentations and could be construed as a fraud upon the court.
Additionally plaintiff makes allegations in its complaint that conflict with the documents attached thereto as to who owned the subject note at the time the note was allegedly lost.
When exhibits are inconsistent with the plaintiff ’s allegations of material fact as to whom the real party in interest is, such allegations cancel each other out. Fladell v. Palm Beach County Canvassing Board, 772 So.2d 1240 (Fla. 2000); Greenwald v. Triple D Properties, Inc., 424 So. 2d 185, 187 (Fla. 4th DCA 1983); Costa Bella Development Corp. v. Costa Development Corp., 441 So. 2d 1114 (Fla. 3rd DCA 1983).
Florida Rule of Civil Procedure 1.130(b) provides in pertinent part: “Any exhibit attached to a pleading shall be considered a part thereof for all purposes.”
Because the facts revealed by Plaintiff ’s exhibit are inconsistent with Plaintiff ’s allegations as to its ownership of the subject note and mortgage, those allegations are neutralized and Plaintiff ’s complaint is rendered objectionable. Greenwald v. Triple D Properties, Inc., 424 So. 2d 185, 187 (Fla. 4th DCA 1983).
Florida Rule of Civil Procedure 1.210(a) provides in pertinent part:
“Every action may be prosecuted in the name of the real party in
interest, but a personal representative, administrator, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party expressly
authorized by statute may sue in that person’s own name without
joining the party for whose benefit the action is brought.”
The Plaintiff in this action meets none of those criteria. Because the exhibit attached to Plaintiff ’s complaint is inconsistent with Plaintiff ’s allegations as to ownership of the subject promissory note and mortgage, and because the allegations and exhibits are inconsistent with sworn filings with a Federal Agency (SEC), Plaintiff has failed to establish itself as the real party in interest and has failed to state a cause of action.
In Florida, the prosecution of a foreclosure action is by the owner and holder of
the mortgage and the note. Your Construction Center, Inc. v. Gross, 316 So. 2d 596 (Fl. 4th DCA 1975)
The Defendants recognize the precedent set in WM Specialty Mortgage, LLC v.
Salmon, 874 So.2d 680 (Fla 4th DCA 2004) regarding the assignment of a mortgage. However as the Second District Court of Appeals noted, standing requires that the party prosecuting the action have a sufficient stake in the outcome and that the party bringing the claim be recognized in the law as being a real party in interest entitled to bring the claim as of the date of the commencement of the action.
The plaintiff ’s failure to meet the standing requirements as of the commencement of this foreclosure action renders the complaint fatally defective and, therefore constitutes misrepresentation as to who the Plaintiff really is.
Further, the failure to join indispensable and necessary parties, those being the real holders in due course of the subject loan documents, Citi wishes to place the borrower and innocent third parties in untenable situations:
The borrower can AGAIN be sued on the same note by a third party who has not been given notice of this lawsuit (john Does 1-1000)
The borrower has no proper entity against which he can assert affirmative defenses and claims regarding predatory loan practices, fraud and other causes of action.
If the note was separated from the mortgage then the mortgage is unenforceable by definition. If the mortgage is unenforceable by definition then any “foreclosure sale” is either void or voidable. Thus a cloud on title exists even in the presence of the Court’s Judgment to the contrary.
Bidders and third parties without notice could easily be sued in foreclosure by the real holders in due course thus either encumbering their property with the mortgage which the Court had intended to extinguish through the foreclosure sale, or losing the property for which they paid out of their own funds or through the lending and mortgage of yet another financial institution who will also be subject to losing its security and suffer a partial or complete loss on a loan where the risks were not apparent because of the fraud of Citi.
The assignment cannot post date the filing of this action if assignment does not relate back to the commencement of the litigation. Progressive Express Insurance Company v. McGrath Community Chiropractic, 913 So.2d 1281 (Fla. 2nd DCA 2005). where there is no assignment document presented and the indorsement is suddenly produced during litigation without a date, it must be presumed that the indorsement was made after the attempt to enforce the instruments in the subject loan transaction, or at the very least that the burden falls on the Defendants to allege and prove that the indorsement was timely made with proper authorization, that the assignor had title to the instruments, and that the assignee retained title to the instruments.
In short, Citi must allege that it is a holder in due course, an allegation which Plaintiff already knows to be untrue and inconsistent with Citi’s sworn filings with the Securities and Exchange Commission in its 10K and 8K filings.
The Plaintiff, in its complaint alleges that it “owns the Note and Mortgage” however it has failed to produce any material evidence to support its claim. In the absence of this evidence the Plaintiff is clearly misrepresenting themselves as the real party in interest and the holder in due course with legal standing to bring this cause of action against the defendant.
The Plaintiff alleges that it is the holder in due course on the subject mortgage and note Defendant has learned, as aforesaid, that this is inconsistent with Citi’s sworn disclosures tot he contrary with the SEC, to wit: that the note was part of larger securitization process and sold to several 6-named parties and beneficial owners and any claims by Plaintiff, in the absence of the original note endorsed to Plaintiff, are a clear misrepresentation of the actual facts.
If the courts were to allow a Plaintiff to bring a cause of action in a scenario where the Plaintiff alleges that it owns a certain note and mortgage but fails to provide any evidence to the courts that this, in fact true, the courts would open the door to incredible harm to any homeowner whose home is secured by a mortgage.
If the court were to allow the Plaintiff in this case to prevail in light of serious misrepresentation and fraud upon the court, it would result in a major injustice to the Defendant.

WHEREFORE, Defendant requests this court grant Defendant’s motion for
vacating judgment and for all other relief to which these defendants prove themselves


Can You Contest Your Foreclosure?

"This is not about mismanagement of a hedge fund. 
It is about premeditated lies to investors and lenders"

       - Mark Mershon, head of New York FBI office, 
after the arrests of two former Bear Stearns managers 
on conspiracy and fraud charges.

Picked these up from foreclosureslam.com.

The first point that the lender might not have standing is correct.

The second point that the reason is that the person does not have a valid assignement is also correct but only half the story.

  1. The other half of the story is that if your original lender is the Plaintiff in your foreclosure action or is otherwise taking the position that property can be sold (e.g. in Arizona where civil procedure more or less works in reverse) the same argument can be made.
  2. Unless the lender shows that they are STILL the owner, they have no standing.
  3. AND more likely than not, they are NOT the owner because most loans were sold into pools that were in turn sold to investment bankers who in turn bundled them and sold deriviative securities (Collateralized mortgage obligations).
  • COMES NOW the borrower and moves this court to dismiss the instant cause of action (or in other stages, to enjoin the sale of the subject property) on the grounds that the Court lacks subject Matter and in personnam jursidiction, to wit: the alleged lender is not the owner of the mortgage note and security agreement, has not alleged or attached documetnation supporting said fact and thus lacks standing to pursue foreclosure or sale of the subject property.
  • Then you sign your name and send a copy of your motion to the lawyer on the other side, the original to the clerk of the court, and a copy to the Judge assigned to the case. Call the Judge and ask for a hearing date.
  • Make sure at the end of your pleading you say” I HEREBY CERTIFY that a true and correct copy of the foregoing Motion to Dismiss was sent to (fill in name of lawyer) at (fill in his/her address) this ___ day of (Fill in Month, 2008. And then sign it again.
  • Although probably unnecessary it might be wise to get your signature notarized.
  • I guess at this point I’m supposed to say consult with an attorney in your area for local rules, procedures and laws. There, I said it.

Can You Contest Your Foreclosure?

There is a recent trend, fueled by the unscrupulous practices of lenders, in which homeowners are contesting their foreclosures. How and why is this done?

In many cases the party who wrote your loan is no longer the party who is now alleging ownership. This fact provides the first method for contesting a loan in foreclosure. Simply put, homeowners are forcing the lender to provide proof that they actually own the loan. Since many loans are sold in mortgage “pools” “there is a tendency of many lenders to sell these pools without following formal legal requirements required for the sale of a mortgage and note. Basically, there must be executed by the lender selling the loan an “assignment” which indicates that ownership is being transferred. When they sell pools of hundreds or even larger pools of mortgages in the normal course of business, many sales forego this necessary legal step. In doing so, lenders who acquire the loans really don’t have what’s known as “legal standing” to bring the action for foreclosure in the first instance. As such, many courts are dismissing foreclosure actions after homeowners have hired sharp attorneys who are making the argument that without providing the court with a signed assignment the party suing has no standing. In the case of lenders who are selling these mortgage pools and then going defunct, it makes it virtually impossible for the party who bought your loan to acquire the necessary signed assignment after the fact. That means that there is no party who can actually foreclosure on your home. This has resulted in a windfall for many homeowners, whose debt is essentially reduced to nothing. Many Judges are in fact dismissing foreclosure actions when there is no valid assignment.

Banks Lose to Deadbeat Homeowners as Loans Sold in Bonds Vanish
By Bob Ivry

Feb. 22 (Bloomberg) — Joe Lents hasn’t made a payment on his $1.5 million mortgage since 2002.

That’s when Washington Mutual Inc. first tried to foreclose on his home in Boca Raton, Florida. The Seattle-based lender failed to prove that it owned Lents’s mortgage note and dropped attempts to take his house. Subsequent efforts to foreclose have stalled because no one has produced the paperwork.

“If you’re going to take my house away from me, you better own the note,” said Lents, 63, the former chief executive officer of a now-defunct voice recognition software company.

Judges in at least five states have stopped foreclosure proceedings because the banks that pool mortgages into securities and the companies that collect monthly payments haven’t been able to prove they own the mortgages. The confusion is another headache for U.S. Treasury Secretary Henry Paulson as he revises rules for packaging mortgages into securities.

“I think it’s going to become pretty hairy,” said Josh Rosner, managing director at the New York-based investment research firm Graham Fisher & Co. “Regulators appear to have ignored this, given the size and scope of the problem.”

More than $2.1 trillion, or 19 percent, of outstanding mortgages have been bundled into securities by private banks, according to Inside Mortgage Finance, a Bethesda, Maryland-based industry newsletter. Those loans may be sold several times before they land in a security. Mortgage servicers, who collect monthly payments and distribute them to securities investors, can buy and sell the home loans many times.

Housing Boom

Each time the mortgages change hands, the sellers are required to sign over the mortgage notes to the buyers. In the rush to originate more loans during the U.S. mortgage boom, from 2003 to 2006, that assignment of ownership wasn’t always properly completed, saidAlan White, assistant professor at Valparaiso University School of Law in Valparaiso, Indiana.

“Loans were mass produced and short cuts were taken,” White said. “A lot of the paperwork is done in the name of the original lender and a lot of the original lenders aren’t around anymore.”

More than 100 mortgage companies stopped making loans, closed or were sold last year, according to Bloomberg data.

The foreclosure rate, at 1.69 percent of all U.S. homeowners, is the highest since theMortgage Bankers Association began tracking it in 1993. The foreclosure rate for subprime borrowers, who have bad or incomplete credit and whose mortgages typically are securitized by private banks rather than government-sponsored entities Fannie Mae and Freddie Mac, is at a four-year high, according to the mortgage bankers.

750,000 Homeowners

More than 1.5 million homeowners will enter the foreclosure process this year, said Rick Sharga, executive vice president for marketing at RealtyTrac Inc., the Irvine, California-based seller of foreclosure information. About half of them, 750,000, will have their homes repossessed, Sharga said.

Borrower advocates, including Ohio Attorney General Marc Dann, have seized upon the issue of missing mortgage notes as a way to stem foreclosures.

“The best thing to do is to keep people in their homes and for everybody to take steps necessary to make that happen,” said Chris Geidner, an attorney in Dann’s office. “These trusts are purchasing these notes, and before they even get the paperwork, they foreclose on people. They become foreclosure machines.”

Lost-Note Affidavits

When the mortgage servicers and securitizing banks that act as trustees of the securities fail to present proof that they own a mortgage, they sometimes file what’s called a lost-note affidavit, said April Charney, a lawyer at Jacksonville Area Legal Aid in Florida.

Nobody knows how widespread the use of lost-note affidavits are, Charney said. She’s had foreclosure proceedings for 300 clients dismissed or postponed in the past year, with about 80 percent of them involving lost-note affidavits, she said.

“They raise the issue of whether the trusts own the loans at all,” Charney said. “Lost-note affidavits are pattern and practice in the industry. They are not exceptions. They are the rule.”

State laws generally make it difficult to foreclose because they favor the homeowner, saidStuart Saft, a real estate lawyer and partner at the New York firm Dewey & LeBoeuf LLP.

“All these loan documents are being sent to the inside of a mountain in the middle of America and not being checked very carefully,” Saft said. “The lenders can’t find the paper. We’re dealing with a lot of paper produced in a mortgage closing.”

`Waste of Time’

Requiring banks to produce the paperwork at a foreclosure hearing is a nuisance, saidJeffrey Naimon, a partner in the Washington office of Buckley Kolar LLP.

“It’s a gigantic waste of time,” Naimon said. “The mortgage may have transferred five, six, eight times. It’s possible that you don’t have all the pieces of paper, but it was enough to convince the next guy in the chain. There’s no true controversy over whether the owner owns the loan.”

Judges are becoming increasingly impatient with plaintiffs who produce no more proof of ownership than a lost-note affidavit or a copy of the note, said Michael Doan, an attorney atDoan Law Firm LLP in Carlsbad, California.

“Things are heating up,” Doan said.

In Ohio, where RealtyTrac reported an 88 percent jump in foreclosures last year, Dann, the attorney general, is now arguing 40 foreclosure cases that challenge ownership of mortgage notes, according to his office.

`Cavalier Approach’

U.S. District Judge David D. Dowd Jr. in Ohio’s northern district chastised Deutsche Bank National Trust Co. and Argent Mortgage Securities Inc. in October for what he called their “cavalier approach” and “take my word for it” attitude toward proving ownership of the mortgage note in a foreclosure case.

John Gallagher, a spokesman for Frankfurt-based Deutsche Bank AG, said the bank had no comment.

Federal District Judge Christopher Boyko dismissed 14 foreclosure cases in Cleveland in November due to the inability of the trustee and the servicer to prove ownership of the mortgages.

Similar cases were dismissed during the past year by judges in California, Massachusetts, Kansas and New York.

“Judges are human beings,” said Kenneth M. Lapine, a partner at the Cleveland law firmRoetzel & Andress LPA. “They no doubt feel the little guy needs all the help he can get against the impersonal, out of town, mega-investment banking company.”

Warning Plaintiffs

U.S. Bankruptcy Judge Samuel L. Bufford in Los Angeles issued a notice last month warning plaintiffs in foreclosure cases to bring the mortgage notes to court and not submit copies.

“This requirement will apply because developments in the secondary market for mortgages and other security interests cause the court to lack confidence that presenting a copy of a promissory note is sufficient to show that movant has a right to enforce the note or that it qualifies as a real party in interest,” the notice said.

Quick foreclosures benefit communities because properties in default lose value and homeowners in financial distress don’t maintain their houses or pay real estate taxes, said Saft of Dewey & Leboeuf.

Painted as the Enemy

“When banks originally made the loans they used people’s money from pension funds and savings accounts and they should be allowed to foreclose the loan as quickly as possible before the property depreciates in value any more,” Saft said. “The mortgage industry has been painted as the enemy when all they did was make loans to enable people to buy homes. Now there’s less money available for new borrowers to buy homes and that’s what’s causing the value of homes to go down.”

Lents is former CEO of Investco Inc., a Boca Raton, Florida-based developer of voice recognition software. In 2002, the U.S. Securities and Exchange Commission sanctionedLents and others for stock manipulation, according to the SEC Web site. He lost his job, was fined and his assets were frozen. That’s the reason he couldn’t pay his mortgage, he said.

“If the homeowner doesn’t object to the lost-note affidavit, the judge rubber-stamps it,” Lents said. “Is it oversight, or are they trying to get around the law?”

Washington Mutual spokeswoman Geri Ann Baptista said the bank had no comment.

Looking for Loopholes

“I can’t believe the handling of notes is worse than it was five years ago,” said Guy Cecala, publisher of Inside Mortgage Finance. “What we didn’t have back then were armies of attorneys out there looking for loopholes. People are challenging foreclosures and courts are paying a lot more attention to foreclosures than they ever did before.”

American Home Mortgage Investment Corp., the Melville, New York-based lender that filed for bankruptcy last August, said it was paying $45,000 a month to store loan paperwork and petitioned U.S. Bankruptcy Judge Christopher Sontchi in Wilmington, Delaware, for the right to toss it all. Sontchi ruled last week that American Home Mortgage could charge banks from $3 to $13 a file to retrieve documents.

The home-loan industry has had a central electronic database since 1997 to track mortgages as they are bought and sold. It’s run by Mortgage Electronic Registration System, or MERS, a subsidiary of Vienna, Virginia-based MERSCORP Inc., which is owned by mortgage companies.

No Tracking Mechanism

MERS has 3,246 member companies and about half of outstanding mortgages are registered with the company, including loans purchased by government-sponsored entities Fannie Mae, Freddie Mac and Ginnie Mae, said R.K. Arnold, the company’s CEO.

For about half of U.S. mortgages, there is no tracking mechanism.

MERS rules don’t allow members to submit lost-note affidavits in place of mortgage notes, Arnold said.

“A lot of companies say the note is lost when it’s highly unlikely the note is lost,” Arnold said. “Saying a note is lost when it’s not really lost is wrong.”

Lents’s attorney, Jane Raskin of Raskin & Raskin in Miami, said she has no idea who owns Lents’s mortgage note.

“Something is wrong if you start from what I think is the reasonable assumption that these banks are not losing all of these notes,” Raskin said. “As an officer of the court, I find it troubling that they’ve been going in and saying we lost the note, and because nobody is challenging it, the foreclosures are pushed through the system.”

To contact the reporter on this story: Bob Ivry in New York at bivry@bloomberg.net.

Last Updated: February 22, 2008 00:03 EST

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