Now You See Them, Now You Don’t

Posted on September 6, 2016 by Neil Garfield

ARE LAW FIRMS CROSSING THE LINE FOR BANKS WHO WILL THROW THEM UNDER THE BUS?

It is a chaotic circular round of documents emanating ultimately by, for and from the same parties. And somehow it is becoming custom and practice to allow law firm employees to sign important documents that transfer possession, delivery, ownership and servicing rights from one party to another while those parties themselves sign nothing.

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

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I can’t help thinking about whether there is a motion in California and other nonjudicial states that allows you to challenge the right of the attorney to be the attorney of record when the law firm is a fact witness on issues that are central to the case. Having signed the proof of claim, being the trustee (who supposedly represents the party who signs a proof of claim), etc., the question is whether they are acting on their own behalf or on behalf of a third party who might indeed have some objections against the law firm representing the interests of parties whose interests might be antithetical to their own.

In a deed of trust you have the trustor (homeowner) and the Trustee in the middle between the trustor and the beneficiary who presumably is the creditor. By now we know that original beneficiary probably did not make the loan and that the alleged new beneficiary didn’t buy it. The beneficiaries’ claims are only as good as the words on the fabricated paper on which they are written and certain legal presumptions that are routinely misapplied.

So the first sign of trouble is the “Substitution of Trustee” wherein a “New” beneficiary executes a document appointing a new Trustee on the Deed of Trust. Why? What was wrong with the old one if everything was on the up and up? They substitute because they know the original Trustee won’t accept the instructions from the new party because the original Trustee has no objective reason to believe that the new “party” is a “beneficiary”. Who signs that “substitution of Trustee”?

It is usually someone who has been given instructions to sign it on the promise and premise that they have been appointed attorney in fact for the “new beneficiary.” In fact, in many cases their only job is signing documents that they have received instructions to sign. But the actual person signing knows absolutely nothing about the deal and has no knowledge about the facts behind the business of signing such documents — assuming their signature was not forged or robo-signed.

So in this and many if not nearly all cases, the actual signature is supplied by a third party who will then fabricate a power of attorney to do it — still without any facts about why the Trustee needs to be replaced. In most cases it is an employee of the law firm who by definition (?) has no actual interest in the loan, the debt, the note or the mortgage (Deed of Trust). This makes the person who signed it a fact witness and watch how the law firm fights to prevent that person from testifying at deposition or trial. In many cases they will assert that the person is no longer employed and they don’t know where he or she is now located.

And then you have the new Trustee who often turns out to be the same law firm who signed the Substitution of Trustee, making it a double self-serving document for which no legal presumptions should apply since there is no foundation in evidence that establishes the law firm as a real party in interest — and if such evidence existed the law firm would be disqualified from representing the allegedly new beneficiary and from being the Trustee AND advocate against the Trustor. If the legislature meant to allow that sort of thing they would have been violating the due process clause of the U.S. Constitution making the entire nonjudicial statutory scheme unconstitutional.

Who signs the power of attorney once it is fabricated? It is either the law firm employee or an employee who works for a “servicer” who in most cases is not named in any document as servicer. Who signs the validation of the foreclosure? Same person. It is a chaotic circular round of documents emanating ultimately by, for and from the same parties. And somehow it is becoming custom and practice to allow law firm employees to sign important documents that transfer possession, delivery, ownership and servicing rights from one party to another while those parties themselves sign nothing.

That is what they are talking about when they refer to “remote” vehicles. It is a situation where actions are taken and the people for whom the action was taken cannot be tied into the transaction in case someone needs to go to jail, or pay a fine or sanctions. But somehow the Courts have twisted this into meaning that what is good for the goose is not good for the gander. The banks can distance themselves from liability for a fabricated transaction but they also can receive the benefits of the fabrication as though they were present.

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

Filed under: foreclosure | Tagged: , , , , , , , , | 5 Comments »

Alignment of Parties and Cancellation of VOID Instrument

Posted on October 23, 2012 by Neil Garfield

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DENY and DISCOVER: First you need to start with the premise that the origination (“closing”) documents were defective from the start. By naming the wrong payee and containing terms different from the terms agreed by the actual Lender (source of funds) specifically as to how the receivable is to be repaid, the note fails the essential tests required to be considered “evidence of the obligation.”

The defective note therefore cannot be reinvigorated into non-defective merely by mention in the collateral mortgage or deed of trust which is recorded to assure faithful performance by the Payor under the terms of the note.  Perhaps the reverse would be true if the mortgage or deed of trust disclosed the reality of a table funded transaction, but that is not apparent for any loan for which there are claims of securitization or assignment.

Hence, the cause of action for cancellation of a VOID instrument lies in the fact that although the mortgage or deed of trust was recorded, it should not have been recorded because it did not recite the basic requirements of a perfected lien. I would add the caveat that cancellation of the instrument probably does not apply to the note, but does apply to the mortgage or deed of trust.

The note is subject to a cause of action for return of the note as satisfied or cancelled if you allege and prove that the Lender was paid in full and that anyone other than the homeowner who paid it might have a cause of action for contribution but that (a) said cause of action is NOT before the court and (b) an action for contribution cannot be considered secured even by a valid mortgage that was satisfied, much less a mortgage or deed of trust that was never a perfected lien.

The cause of action is NOT in contribution if the allegation is that the “creditor” (after showing the details of the transaction in which money was exchanged) purchased the note and mortgage, which is different. In that case, an assignment would be required or some other bill of sale or other instrument in order to preserve a perfected lien. But the payment and even a transfer does not perfect a lien that is defective.

That bring us to the issue of evidence and the alignment of the parties. Nearly all pro se litigants and lawyers are using the above arguments as affirmative defenses or worse yet, merely as argument at hearings for demurrers, motions to dismiss, motions for summary judgment and motions to lift stay. This is understandable in the non-judicial states because of confusion and conflict in the rules of civil procedure.

In seeking a Temporary Restraining Order, the homeowner needs to bring the lawsuit, which is ridiculous when you thin about it because the information about the loan is in the hands of multiple parties, many of whom the known parties refuse to disclose the identity or status of said stakeholders.

Where I see attorneys getting traction in courts previously disposed to be dismissive of defenses and claims of borrowers, is precisely in this realm. First by denying the obligation, note and mortgage, that pouts the matter at issue. At that point it is universally agreed that the burden switches to the other side as to pleading and proof. People often ask me during seminars or conference calls
how do I prove that?”. The answer is that you don’t — you make them plead and prove their allegations. Non-judicial foreclosure was NEVER meant to be a vehicle to allow foreclosures to be completed when they would not have satisfied the statutory requirements of a judicial foreclosure.

This is what you cite: “Where the evidence necessary to establish a FACT that is ESSENTIAL to a CLAIM lies peculiarly within the knowledge and competence of one of the parties, THAT party has the BURDEN of going forward with the evidence on the issue even though it is NOT THE PARTY ASSERTING THE CLAIM.” [Garcia v Industrial Acc. Com (1953) 41 Cal.2d 689, 694; Wigmore Evidence 2d ed. 1940 Sec 2486; Witkin Cal. Evidence (1958) Sec 56(b).]

This doctrine is centuries old. You know something is true or you at least have good reason to believe a fact to be true but he other side has the proof. IN this case you know your denial of the essential elements of the judicial foreclosure forces the forecloser to come forward and prove their claim that they indeed have the right to foreclose.

Most Judges in most instances have realigned the parties and required the party claiming affirmative relief to plead as though they were the plaintiff even though the statute required the initiation of the lawsuit by the other side (the homeowner). It’s like some of the “negative” rulings against borrowers. There are plenty of people who can START a foreclosure, but only the creditor can finish it with a credit bid at auction.

California MEmo on ALignment and Cancellation of Note

Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud | Tagged: , , , , , , , , , , , , | 14 Comments »

Still Pretending the Servicers Are Legitimate

Posted on May 30, 2012 by Neil Garfield

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Editor’s Comment:

I keep waiting for someone to notice. We all know that the foreclosures were defective. We all know that in many cases independent auditors found that strangers to the transaction submitted credit bids that were accepted by the auctioneer, and that in the non-judicial states where substitutions of trustees are always used to replace an independent trustee with one owned or controlled by the “new creditor” the “credit bid” is accepted by the creditor’s agent even if the trustee has notice from the borrower that neither the substitution of trustee nor the foreclosure are valid, that the borrower denies the debt, denies the default and denies the right of the “new creditor” to do anything.

In the old days when we followed the law, the trustee would have only one option: file an interpleader lawsuit in court claiming two stakeholders and that the trustee is not a stakeholder and should be reimbursed for fees and costs. Today instead of an interpleader, it is a foreclosure because the “creditor” is holding all the cards.

So why is anyone surprised that modifications are rejected when in the past the debtor and borrower always worked things out because foreclosure was not as good as a work-out?

Why do the deeds found to be lacking in consideration with false credit bids still remain on the books? Why hasn’t the homeowner been notified that he still owns the property and has the right to possession?

And why are we so sure that the original mortgage has any more validity than the false documents to support fraudulent foreclosures? Is it because the borrower’s signature is on it? OK. If we are going to look at the borrower’s signature then why do we not look at the rest of the document and the facts alleged to have occurred in those documents. The note says that the payee is the lender. We all know that isn’t true. The mortgage says the property is collateral for payment to the payee on the note. What first year law student would fail to spot that if the note recited a loan transaction that never occurred, then the mortgage securing the payments on the false transaction is no better than the note?

So if the original transaction was defective and the servicer derives its status or power from the origination documents, then who is the servicer and why is he standing in your living room demanding payment and declaring you in default?

If any reader of this blog somehow convinced another reader of the blog to sign a note and mortgage, would the note and mortgage be valid without any actual financial transaction. No. In fact, the attempt to collect on the note where I didn’t make the loan might be considered fraud or even grand theft. And rightfully so. I am told that in some states the Judges say it is the absence of anyone else making an effort to collect on the note that proves the standing of the party seeking to enforce it. Really?

This sounds like a business plan. A lends B money. B signs papers indicating the loan came from C and C gets the mortgage. B is delinquent by a month and having lost his job he abandons the property. D comes in and seeks to enforce the mortgage and note and nobody else is around. The title record is still clear of any foreclosure activity. D says he has an assignment and produces a false forged assignment. Nobody else shows up. THAT is because the parties in the securitization chain are using MERS instead of the public record title registry so they didn’t get any notice. D gets the foreclosure after substituting trustees in a non-judicial state or doing absolutely nothing in a judicial state. The property is auctioned and D submits a credit bid which is accepted by the auctioneer. The clerk or trustee issues D a deed upon foreclosure and D immediately transfers the property to XYZ corporation that he formed the day before. XYZ sells the property to E for $300,000. E pays D $60,000 down payment and gets a mortgage from ABC Lending Corp. for the other $240,000. ABC Lending Corp. sells the note and mortgage into the secondary market where it is sliced and diced into parcels that are allocated into one or more REMIC special purpose vehicles.

Now B comes back and finds out that he was never foreclosed on by his lender. C wakes up and says they never released the mortgage. D took the money and ran, never to be heard from again. The investors in the REMIC trusts are told they bought an invalid mortgage or one in which the mortgage has second priority instead of first priority. E, who bought the property with $60,000 of his own money is now at risk, and when he looks at his title policy and makes a claim he is directed to the schedules of exclusions and exceptions that specifically cover this event. So no title carrier is going to pay. In fact, the title company might concede that B still owns the property and that C has the first mortgage on it, but that leaves E with two mortgages instead of one. The two mortgages together total around $500,000, a price that E’s property will never reach in 20 years. Sound familiar?

Welcome to USA property law as it was summarily ignored, changed and enforced for the past 10 years? Why? Especially when it turns out that the investment broker that sold the mortgage bonds of the REMIC knew about the whole story all along. Why are we letting this happen?


Filed under: foreclosure | Tagged: , , , , , , , , , , , , , , , , , , , | 42 Comments »

State by State Foreclosure Procedures

Posted on January 24, 2012 by Neil Garfield

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EDITOR’S NOTE: All non-judicial states have a provision that allows for judicial foreclosure. It is one of the things that is often overlooked. My point has always been that the non-judicial statutes are unconstitutional only if they don’t allow judicial foreclosures and especially if the foreclosing party is allowed to prevail in a case in which the forecloser would otherwise not prevail in a judicial foreclosure. the trustee in non-judicial foreclosure case is a substitute for the court and must act with due diligence — another fact that is often overlooked.

The implication is that the trustee must act some independence for the protection of both the debtor and creditor. That is impossible when the new creditor appearing on the scene essentially files a substitution of trustee in which the “creditor” is appointed as trustee — a very common scenario that is not apparent on its face. The substitute trustee is often not a trustee and doesn’t qualify because it is controlled or even owned (Recontrust owned by BOA) by the new putative creditor.

The reference to “primarily” simply means that the rules of non-judicial foreclosure or the complexities of the case  make it such that a judicial foreclosure is the only way to resolve the issues of the case. Also commercial foreclosures are usually only allowed as judicial. Check the State statutes and see what they provide — the conditions under which non-judicial is permitted and the conditions under which judicial is mandated.

State by State Foreclosure Procedures

This is a general guide only, laws change and you need to check your state statutes for accurate, up to date procedures. Foreclosure type will most often be either judicial or non-judicial, if you have a specific question about a state process, you can ask it on the discussion board. Months to foreclose include the legal minimum required and the probable time length once foreclosure has begun. Deficiency judgments are available in some states if the lender loses money through the foreclosure process, if it is not practical for the lender to enforce a judgment, it will be listed. Homeowner redemption after foreclosure is possible in some states, the time periods are listed where available.

STATE TYPE OF FORECLOSURE MONTHS TO FORECLOSE
MINIMUM/EXPECTED		 DEFICIENCY JUDGMENT REDEMPTION PERIOD
Alabama Primarily Non-Judicial 1/3 Possible and Practical 12 Months
Alaska Both 3/4 Not Practical None
Arizona Both 3/4 Not Practical None
Arkansas Both 4/5 Possible and Practical None
California Primarily Non-Judicial 4/4 Not Practical None
Colorado Primarily Non-Judicial 2/5 Possible and Practical None
Connecticut Judicial/Strict 5/6 Possible and Practical None
Delaware Judicial 3/7 Possible and Practical None
District of Columbia Non-Judicial 2/4 Possible and Practical None
Florida Judicial 5/5 Possible and Practical None
Georgia Primarily Non-Judicial 2/2 Possible and Practical None
Hawaii Primarily Non-Judicial 3/4 Not Practical None
Idaho Non-Judicial 5/6 Possible and Practical None
Illinois Judicial 7/10 Possible and Practical None
Indiana Judicial 5/7 Possible and Practical 3 Months
Iowa Both 5/6 Not Practical 6 Months,if judicial
Kansas Judicial 4/4 Possible andPractical 6-12 Months
Kentucky Judicial 6/5 Possible and Practical None
Louisiana Judicial 2/6 Possible and Practical None
Maine Primarily Judicial 6/10 Possible and Practical None
Maryland Judicial 2/2 Possible and Practical None
Massachusetts Non-Judicial 3/4 Possible and Practical None
Michigan Both 2/2 Possible and Practical 6 Months
Minnesota Both 2/3 Not Practical 6 Months
Mississippi Primarily Non-Judicial 2/3 Possible and Practical None
Missouri Primarily Non-Judicial 2/2 Possible and Practical None
Montana Primarily Non-Judicial 5/5 Not Practical None
Nebraska Judicial 5/6 Possible and Practical None
Nevada Primarily Non-Judicial 4/4 Possible and Practical None
New Hampshire Primarily Non-Judicial 2/3 Possible and Practical None
New Jersey Judicial 3/10 Possible and Practical 10 Days
New Mexico Judicial 4/6 Possible and Practical None
New York Judicial 4/8 Possible and Practical None
North Carolina Non-Judicial 2/4 Possible and Practical None
North Dakota Judicial 3/5 Not Possible 60 Days
Ohio Judicial 5/7 Possible and Practical None
Oklahoma Primarily Judicial 4/7 Possible and Practical None
Oregon Non-Judicial 5/5 Not Practical None
Pennsylvania Judicial 3/9 Not Practical None
Rhode Island Both 2/3 Possible and Practical None
South Carolina Judicial 6/6 Not Practical None
Tennessee Non-Judicial 2/2 Possible and Practical None
Texas Non-Judicial 2/2 Possible and Practical None
Utah Both 4/5 Possible and Practical None
Vermont Both 7/10 Possible and Practical None
Virginia Non-Judicial 2/2 Possible and Practical None
Washington Non-Judicial 4/5 Not Practical None
West Virginia Non-Judicial 2/2 Possible and Practical None
Wisconsin Judicial varies/10 Not Practical None
Wyoming Non-Judicial 2/3 Possible and Practical 3 Months

 

Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud | Tagged: , , , , , , , , , , , , , , , , , , , , , | 39 Comments »

COUNTY RECORDERS MULL MERS PLAN WITH LUMINAQ-LIVINGLIES TO RECOVER LOST REVENUE

Posted on February 25, 2011 by Neil Garfield

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COUNTY RECORDERS TO IMPOSE FEES AND FINES FOR FAILURE TO RECORD

AUTHORIZED COUNTY GOVERNMENT OFFICIALS:

EMAIL YOUR NAME TO

LUMINAQ.COUNTYRECORDERS@GMAIL.COM

YOUR TITLE

YOUR TELEPHONE NUMBER

YOUR EMAIL TO WHICH YOU WANT THE TELECONFERENCE INVITATION SENT

BILLIONS OF DOLLARS TARGET FOR RECOVERY TO COUNTY REVENUE: We have had several discussions with the County recorder in many states wherein a plan has emerged, with our help, to recover recording fees, documentary stamps, fines, penalties and damages from parties filing foreclosure actions under “cover” of supposed securitization.

The emerging plan takes each foreclosure action and computes the number of intermediaries that were the alleged recipients of an interest in the mortgage or deed of trust and than computes the recording fees and other costs that should have been paid in those transactions. The plan only applies to those cases where the property is in foreclosure proceedings, and is being examined by both judicial and non-judicial state recording offices.

LUMINAQ WWW.LUMINAQ.COM is the new site for the Livinglies store. ProTitleUSA, a partner in LUMINAQ, recently completed a massive project for the FDIC involving thousands of homes. LUMINAQ will provide a tailored COMBO title and securitization report that provides the necessary documentation to support the County Recorder’s claim. A tailored loan level accounting report will assess the fees, costs and penalties.

For those properties currently in foreclosure, clear title cannot be obtained by the bidder or any subsequent holder without proof of payment of the outstanding amounts due. While the foreclosing parties might resist the imposition of these costs, the resistance is likely to be tepid at best, because of the delays in completing the foreclosure and the ability to pass on the costs in the computing the bid for the property at sale. Local rules provide the enforcement mechanism.

For those properties which have already been subject to a foreclosure sale, clear title cannot be obtained by a subsequent buyer without payment of the outstanding amounts due.

LUMINAQ WILL PROCESS THE DATA, BUT ALL MONEY WILL BE PAID DIRECTLY TO THE COUNTY RECORDER’S OFFICE. THE AMOUNT TO BE RECOVERED IS ESTIMATED TO BE IN EXCESS OF $60 BILLION.

With Wisconsin and other states going  into gridlock and turmoil over budget disputes, it is projected that the recovery will significantly ease the budget short-falls on the local level. On State levels, Attorney Generals and Treasurers are taking a sharp look at their tax codes and considering similar plans for the recovery of even more money for unpaid income taxes, intangible taxes, registration fees, penalties, fines and other costs.

A SECURE CONFERENCE CALL WILL BE CONDUCTED IN WHICH AUTHORIZED REPRESENTATIVES OF COUNTY GOVERNMENTS WILL BE ABLE TO PARTICIPATE WITHOUT COST TO GET DETAILS OF THE PLAN AND HOW TO PARTICIPANT.

AUTHORIZED COUNTY GOVERNMENT OFFICIALS (LIMIT 2 PER COUNTY)

EMAIL YOUR NAME TO

LUMINAQ.COUNTYRECORDERS@GMAIL.COM

YOUR TITLE

YOUR TELEPHONE NUMBER

YOUR EMAIL TO WHICH YOU WANT THE TELECONFERENCE INVITATION SENT

Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud | Tagged: , , , , , , , | 26 Comments »

IBANEZ: HUGE WIN FOR BORROWERS IN MASSACHUSETTS (NON-JUDICIAL STATE) HIGH COURT

Posted on January 7, 2011 by Neil Garfield

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READ FULL DECISION HERE—-> MA S Ct 1-7-11 usbank

see ibanez-decision-analyzed

see CNN Report and Video

NOTABLE QUOTES:

“Where, as here, mortgage loans are pooled together in a trust and converted into mortgage-backed securities, the underlying promissory notes serve as financial instruments generating a potential income stream for investors, but the mortgages securing these notes are still legal title to someone’s home or farm and must be treated as such.” (e.s.)

“The executed agreement that assigns the pool of mortgages, with a schedule of the pooled mortgage loans that clearly and specifically identifies the mortgage at issue as among those assigned, may suffice to establish the trustee as the mortgage holder,” Gants wrote. “However, there must be proof that the assignment was made by a party that itself held the mortgage.“

“ The PPM, however, described the trust agreement as an agreement to be executed in the future, so it only furnished evidence of an intent to assign mortgages to U.S. Bank, not proof of their actual assignment. Even if there were an executed trust agreement with language of present assignment, U.S. Bank did not produce the schedule of loans and mortgages that was an exhibit to that agreement, so it failed to show that the Ibanez mortgage was among the mortgages to be assigned by that agreement. Finally, even if there were an executed trust agreement with the required schedule, U.S. Bank failed to furnish any evidence that the entity assigning the mortgage–Structured Asset Securities Corporation–ever held the mortgage to be assigned.”

Courts in other U.S. states are considering similar cases, and all 50 state attorneys general are examining whether lenders are forcing people out of their homes improperly.

Friday’s decision may also threaten banks’ ability to package mortgages into securities, including whether loans that were transferred improperly might need to be bought back.

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EDITOR’S COMMENT: I TOLD YOU SO!!!! This decision was inevitable. The Banks believed their political clout would outweigh the third branch of government — the judiciary — and it just doesn’t work that way. Not here in the USA.

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Top Massachusetts court rules against foreclosing banks

By Jonathan Stempel and Dena Aubin

NEW YORK | Fri Jan 7, 2011 1:10pm EST

NEW YORK (Reuters) – In a ruling that may affect foreclosures nationwide, Massachusetts’ highest court voided the seizure of two homes by Wells Fargo & Co and US Bancorp after the banks failed to show they held the mortgages at the time they foreclosed.

Bank shares fell, dragging down the broader U.S. stock market, after the Supreme Judicial Court of Massachusetts on Friday issued its decision, which upheld a lower court ruling.

The decision is among the earliest to address the validity of foreclosures conducted without full documentation. That issue last year prompted an uproar that led lenders such as Bank of America Corp, JPMorgan Chase & Co and Ally Financial Inc to temporarily stop seizing homes.

Courts in other U.S. states are considering similar cases, and all 50 state attorneys general are examining whether lenders are forcing people out of their homes improperly.

Friday’s decision may also threaten banks’ ability to package mortgages into securities, including whether loans that were transferred improperly might need to be bought back.

Wells Fargo and U.S. Bancorp lacked authority to foreclose after having “failed to make the required showing that they were the holders of the mortgages at the time of foreclosure,” Justice Ralph Gants wrote for a unanimous court.

Wells Fargo was not immediately available for comment. U.S. Bancorp spokesman Steve Dale said the ruling has no financial impact on the bank, which has “no responsibility for the terms of the underlying mortgage or the procedure by which they were transferred” into a mortgage trust.

“What they were doing was peddling these mortgages and leaving the paperwork behind,” said Michael Pill, a partner at Green, Miles, Lipton & Fitz-Gibbon LLP in Northampton, Massachusetts, who represents homeowners and is not involved in the case.

In early afternoon trading, Wells Fargo shares were down nearly 4 percent at $30.92, while U.S. Bancorp was down 1.4 percent at $25.93.

Bank of America stock was down 2.8 percent, JPMorgan fell 3.7 percent, and the KBW Bank Index, which includes all four lenders, was down 2.3 percent. Major U.S. stock indexes were down 0.6 percent to 0.8 percent.

‘UTTER CARELESSNESS’

In the Massachusetts case, U.S. Bancorp and Wells Fargo had said they controlled through different trusts the respective mortgages of Antonio Ibanez as well as Mark and Tammy LaRace, who lost their homes to foreclosure in 2007.

The banks bought the homes in foreclosure, and sought court orders confirming they had title. A lower court judge ruled against them, and Friday’s decision upheld this ruling.

In a concurring opinion, Justice Robert Cordy lambasted “the utter carelessness” that Wells Fargo and US Bancorp demonstrated in documenting their right to own the properties.

Massachusetts is one of 27 U.S. states that do not require court approval to foreclose.

Gants did suggest in his opinion how banks might properly transfer mortgages via securitization trusts.

“The executed agreement that assigns the pool of mortgages, with a schedule of the pooled mortgage loans that clearly and specifically identifies the mortgage at issue as among those assigned, may suffice to establish the trustee as the mortgage holder,” Gants wrote. “However, there must be proof that the assignment was made by a party that itself held the mortgage.”

The cases are U.S. Bank N.A. v. Ibanez and Wells Fargo Bank NA v. LaRace et al, Massachusetts Supreme Judicial Court, No. SJC-10694.

(Reporting by Jonathan Stempel and Dena Aubin; Editing by Lisa Von Ahn and Matthew Lewis)

Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud | Tagged: , , , , , , , , , , | 27 Comments »

Prima Facie Case and Burden of Proof

Posted on May 14, 2010 by Neil Garfield

In Court, a prima facie case is, in plain English, the completion of a party’s burden of proof. That means if you are seeking AFFIRMATIVE relief from the Court, then you have the burden of proving your case. In order to prove your case you must present evidence. Your evidence must conform to the legal requirements or elements of your lawsuit. So for example if you want to prove a case for damages, you must prove a duty, breach of duty and damages related to the breach of that duty. If you want to prove a case for breach of contract, then you must prove up the contract, the breach of the contract and the damages from that breach. If you are seeking to have the court make the other party do something, like pay you damages, then you are seeking affirmative relief.

In judicial states, there is no issue of who has the burden of establishing a prima facie case. In non-judicial states the issue is muddled because the borrower is required to file a lawsuit even  though it is the “lender” or “creditor” who is seeking affirmative relief. For reasons expressed below, it is my opinion that the prima facie burden in ALL states lies with the the party presuming to be the “lender” or “creditor.” So in all situations in all courts, federal or state, bankruptcy or civil, the burden is on the party seeking to enforce the note or foreclose on the property because when all is said and done, the party actually seeking affirmative relief is the party seeking to recover money or property or both.

Legally, tactically and strategically, it is a mistake and perhaps malpractice to ignore this point because it is at the threshold of the courtroom that the case might be won or lost. If you ignore the point or lose the argument, you are stuck with going beyond the simple position of the homeowner — denial of the claim of the opposing party. Even the petition for temporary restraining order should be translated as the homeowner’s denial of the claim of of the “creditor” and a demand that the creditor prove up its claim.

In other words, once a homeowner denies the claim, the case automatically becomes judicial simply because the parties are in court. At that point the court must adjust the orientation of the parties such that the party claiming affirmative relief becomes the plaintiff and the homeowner becomes the defendant notwithstanding the initial pleading that brought them into court.

The essential legal question is first, what is the prima facie case, and who has the burden of proof? The party seeking affirmative relief is the party seeking to enforce the note and deed of trust (mortgage). That would be the beneficiary under the deed of trust and the party to whom the note is payable. The note is payable legally and equitably to the investors if the securitization of the note was successful. The beneficiary is also the investors, making the same presumption. The party seeking negative relief (i.e., seeking to avoid the enforcement) is the homeowner who may or may not be considered a “borrower” or “debtor” depending upon the outcome of a presentation of facts that include an accounting of ALL receipts and disbursements related to or allocable to the specific loan in question.

It is obvious that in plain language, the party initiating a non-judicial sale is seeking affirmative relief and that in cases where there is an adversary judicial proceeding, the homeowner wishes to deny the claim of the creditor. In non-judicial states where the sale is essentially a private sale NOT based upon judicial proceedings, the mistake made by judges and lawyers alike is that they become confused by the fact that homeowner brought the suit to stop the sale.

That homeowner lawsuit is actually in substance no more than a denial of the claim by the alleged beneficiary under the deed of trust. In practice, the error is compounded by making the homeowner prove a “case” based upon the homeowner’s denial. In effect, this practice presumes the existence of a prima facie case by the alleged creditor or beneficiary, which is a denial of due process. Due process means that first you make a claim, second you prove it and ONLY AFTER the claim and the proof does the opposing party have ANY obligation to offer ANY proof.

Further compounding this error in process, many such states have rules that prevent the homeowner from contesting an eviction (unlawful detainer, writ of possession) even though that is the FIRST TIME the case has been in court. In effect, the Court is making the presumption that legal process has been completed, and giving the Private Sale the status of a judicial order — and then inappropriately and without realizing it, applying the doctrine of res judicata or collateral estoppel in a case where there was no other proceeding, order, adversary hearing or any hearing on law or fact.

Therefore, in my opinion, the party who must establish a prima facie case is the party assuming the position of “creditor” or substitute lender, notwithstanding the apparent orientation of parties in the pleadings. Or, the prima facie case of the homeowner would consist of a denial that the opposing party is a creditor or that any money is due or that a default has occurred. Thus the burden would shift to the party actually seeking affirmative relief anyway. The prima facie case for the party seeking affirmative relief would require the following elements:

  • Establishment of the originating transaction
  • Establishment of chain of title as to homeowner
  • Establishment of chain of title as to obligation
  • Establishment of chain of title as to note
  • Establishment of chain of title as to deed of trust or mortgage
  • Establishment of chain of securitization documents
  • Establishment of acceptance of subject loan into each successive loan pool
  • Establishment of true party in interest and standing
  • Establishment of 1st party payments
  • Chain of 1st party payments step by step to the true party in interest
  • Chain of 3rd party payments step by step to the true party in interest
  • Establishment of allocation of 3rd party payments and receipts to subject loan
  • Accounting for all receipts and disbursements from all sources
  • Establishment of default date
  • Establishment of current status of the loan
  • Establishment of balance due
  • Establishment of encumbrance and status
  • Allocation of encumbrance to the property (if encumbrance covers future payments other than principal and interest — like taxes and insurance payable to 3rd parties, then the court must allocate a monetary value to the encumbrance for the benefit of the beneficiary)

The above elements would only be satisfied by the Court’s acceptance of testimony and documents with adequate foundation to be admitted into evidence. It would require actual persons with actual knowledge based upon personal observation, participation or experience with whatever aspect of the transaction is within the scope of their direct examination proffered by the party seeking affirmative relief. By virtue of the confusing panoply of documents, events and facts applicable to a securitized loan, it is my opinion that no legal presumptions would apply with respect to the obligation, note, encumbrance or default.

Hence, non-payment by the payor shown on the note would not give rise to the presumption of a default because of the explicit reference to third party payments, insurance and credit enhancements in the securitization documents. The party seeking affirmative relief would be required to proffer the testimony of a competent witness (probably someone from the investment banker that created the securitization chain and/or someone from the trading desk of the investment bank) that would provide a record and status of third party payments, receipts and disbursements allocable to the loan pool in which the subject loan was securitized. Failure to do so would lead to the conclusion of a failure of proof, or, in the court’s discretion, requiring the homeowner to cross examine each witness offered by the party seeking affirmative relief with the following question: “So you don’t know whether any third party made payments that would offset losses or principal in the loan pool, is that right?”

Filed under: CDO, CORRUPTION, Eviction, expert witness, foreclosure, Forensic Analysis Workshop, GTC | Honor, Investor, Mortgage, Motion Practice and Discovery, securities fraud, Securitization Survey, Servicer, STATUTES, trustee, workshop | Tagged: , , , , , , , , , , , | 40 Comments »

Shack; JPM, Trustee Lacks Standing, Vacates Foreclosure

Posted on May 12, 2010 by Neil Garfield

The true answer is that securitization is a process that is still on going and not an event.The Real Party in Interest (and the real amount of principal due, if any) is in a state of flux hidden by obscure, hidden or “confidential documentation.” Don’t make it your problem to unravel it. Use your strength to force THEM to prove their claim whether it is in a judicial or non-judicial proceeding.

Editor’s Comment: In case you haven’t noticed, this case, along with some others I’ve heard about but not received, closes the loop. The Pretender Lenders have now tried to use all the major parties and some of the minor parties in foreclosures and when tested have failed to prove standing. standing is a jurisdictional matter and it basically boils down to “You don’t belong here, you have no rights to enforce, you have no interest in this litigation, so get out of here and don’t come back.”

They tried MERS, Servicers, Foreclosure Specialty processors, Trustees, originating “lenders” and they come up empty. why because they are all intermediaries and as Judge Holloway put it, the note is not payable to them, the mortgage does not secure them, the obligation is not due to them and therefore they can’t proceed. In non-judicial states they get around this requirement unless the homeowner brings suit.

So who is the real party in interest? See the Fordham Law Review article posted on this blog more than two years ago “Will the Real Party in Interest Please Stand Up.”

The answer isn’t easy, but the strategy is very simple — don’t accept responsibility for the narrative or you will be taking on the burden of proof in THEIR case. They have the information and you don’t. The true answer is that securitization is a process that is still on going and not an event. The Real Party in Interest (and the real amount of principal due, if any) is in a state of flux hidden by obscure, hidden or “confidential documentation. Don’t make it your problem to unravel it. Use your strength to force THEM to prove their claim whether it is in a judicial or non-judicial proceeding.

The real reason for them NOT simply bringing in the investors who at least WERE parties in interest is multifold:

  • The meeting of the investor with the borrower will result in comparing notes and the fact that not all the money advanced by investors was actually invested in mortgages will be “problematic” for the investment bankers who put this scheme together.
  • The meeting of the investor and borrower could result in an alliance in litigation in which the shell game would be impossible.
  • The meeting of the investor and the borrower could result in a settlement that cuts the servicers and other intermediaries out of the gravy train of servicing fees, foreclosures with rigged bids, etc.
  • The conflict of interest between the intermediaries and the investors might become evident, and lead to further litigation both from the investors and the SEC, state attorneys general and Department of Justice.
  • The investment vehicle (the “trust” or Special Purpose Vehicle) might have been dissolved with the investors paid off and/or with the “assets” resecuritized into a new BBB rated vehicle. This could lead to the nuclear question: what if any, is the balance due in principal on this OBLIGATION. Warning: If you let the narrative shift to the NOTE (which is merely evidence of the obligation) you risk being entrapped by the simple question “Did you make your payments under this note?” This immediately puts you on the defensive BEFORE they have established THEIR case. Since THEY are the party seeking affirmative relief, THEY should establish the foundation first.
  • And the last thing that comes to my mind is the last thing anyone wants to hear — was this obligation satisfied in whole or in part by third party payments through credit enhancements or federal bailout?

Hon. Arthur M. Schack does it again!

JP Morgan Chase Bank, N.A. v George

2010 NY Slip Op 50786(U)
Decided on May 4, 2010

Supreme Court, Kings County
Schack, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 4, 2010
Supreme Court, Kings County

JP Morgan Chase Bank, N.A., AS TRUSTEE FOR NOMURA ASSET ACCEPTANCE CORPORATION MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2004-AR4, Plaintiff,

against

Gertrude George, IVY MAY JOHNSON, GMAC MORTGAGE CORPORATION, DANIEL S. PERLMAN, et. al., Defendants.

10865/06

Plaintiff– JP Morgan Chase Bank
Steven J Baum, PC
Amherst NY

Defendant– Gertrude George
Edward Roberts, Esq.
Brooklyn NY

Defendant– Ivy Mae Johnson
Precious L. Williams, Esq.
Brooklyn NY

Arthur M. Schack, J.

_______________________________________________

Accordingly, it is
ORDERED, that the order to show cause of defendant IVY MAE JOHNSON, to vacate the January 16, 2008 judgment of foreclosure and sale for the premises located at 47 Rockaway Parkway, Brooklyn, New York (Block 4600, Lot 55, County of Kings), pursuant to CPLR Rule 5015 (a) (4), because plaintiff, JP MORGAN CHASE BANK, N.A., AS TRUSTEE FOR NOMURA ASSET ACCEPTANCE CORPORATION MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2004-AR4, lacked standing to commence the instant action and thus, the Court never had jurisdiction, is granted; and it is further

ORDERED, the instant complaint of plaintiff JP MORGAN CHASE BANK, N.A., AS TRUSTEE FOR NOMURA ASSET ACCEPTANCE CORPORATION MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2004-AR4 for the foreclosure on the premises located at 47 Rockaway Parkway, Brooklyn, New York (Block 4600, Lot 55, County of Kings) is dismissed with prejudice.

This constitutes the Decision and Order of the Court.

ENTER

___________________________

Hon. Arthur M. SchackJ. S. C..

Filed under: CASES, CORRUPTION, Eviction, expert witness, foreclosure, foreclosure mill, GTC | Honor, HERS, investment banking, Investor, MODIFICATION, Mortgage, Motion Practice and Discovery, securities fraud, Servicer, STATUTES, trustee | Tagged: , , , , , , , , , , , , , , , , , , , , | 43 Comments »

Non-judical sale is not exactly a foreclosure

Posted on May 8, 2010 by Neil Garfield

The problem is that a statute passed for judicial economy is now being used to force the burden of proof onto the borrower in the foreclosure of their own home

I think the main issue in non-judicial states is what does “non-judicial” mean.

I think in your argument you do NOT want to concede that they wish to foreclose. What they want to do is execute on the power of sale in the deed of trust WITHOUT going through the judicial foreclosure process as provided in state statutes.

You must understand that the opposition is seeking to go around normal legal process which requires a foreclosure lawsuit. THAT would require them to make allegations about the obligation, note and mortgage that they cannot make (we are the lender, the defendant owes us money, we are the holder of the note, the note is payable to us, he hasn’t paid, the unpaid balance of the note is xxx etc.) and they would have to prove those allegations before you had to say anything. In addition they would subject to discovery in which you could test their assertions before an evidentiary hearing. That is how lawsuits work.

The power of sale given to the trustee is a hail Mary pass over the requirements of due process. But it allows for you to object.

The question which nobody has asked and nobody has answered, is on the burden of proof, once you object to the sale, why shouldn’t the would-be forecloser be required to plead and prove its case? If the court takes the position that in non-judicial states the private power of sale is to be treated as a judicial event, then that is a denial of due process required by Federal and state constitutions.

The only reason it is allowed, is because it is private and “non-judicial.” The quirk comes in because in practice the homeowner must file suit. Usually the party filing suit must allege facts and prove a prima facie case before the burden shifts to the other side. So the Judge is looking at you to do that when you file to prevent the sale.

Legally, though, your case should be limited to proving that they are trying to sell your property and that you have meritorious defenses. That SHOULD trigger the requirement of re-orienting the parties and making the would-be forecloser file a complaint (lawsuit) for foreclosure.

Then the burden of proof would be properly aligned with the party seeking affirmative relief (i.e., the party who wants to enforce the deed of trust (mortgage), note and obligation) required to file the complaint with all the necessary elements of an action for foreclosure and attach the necessary exhibits.

They don’t want to do that because they don’t have the exhibits and the note is not payable to them and they cannot actually prove standing (which is a jurisdictional question). The problem is that a statute passed for judicial economy is now being used to force the burden of proof onto the borrower in the foreclosure of their own home. This is not being addressed yet but it will be addressed soon.

Filed under: CASES, CDO, CORRUPTION, Eviction, expert witness, foreclosure, foreclosure mill, Forensic Analysis Workshop, GTC | Honor, HERS, investment banking, Investor, Motion Practice and Discovery, Servicer, STATUTES, trustee, workshop | Tagged: , , , , , , | 21 Comments »

800-Numbers Lead to Runaround as Banks Refuse to Modify Mortgages

Posted on March 31, 2010 by Neil Garfield

Rule of Thumb: If they can’t execute a release or satisfaction of the mortgage, then they can’t foreclose. And if they did, it is reversible.

Whistle-Blower: Banks Give Homeowners the Runaround

“In our managers meeting, which can last eight or nine hours, we probably addressed mortgage modifications five minutes or less,” the banker said.

Editor’s Note: The reason is simple. They want the property. They can get the property because of pandemic confusion over securitization. They can’t modify mortgages as easy as they can foreclose. They don’t have the right, title, interest or authorization to modify mortgages because they never advanced a dime for the funding of those mortgages. But because non-judicial states make it real easy for anyone with a bogus piece of paper to foreclose and get title to the property, and because investors who are the real creditors are not asserting their right, title and interest, it’s easy for a pretender lender to pick up a free house.

And due to heavy caseloads and poor understanding of securitized mortgages in judicial states, the same rules seem to apply as non-judicial states — homeowners are generally not heard on the merits of their defenses and claims. The foreclosure proceeds, automatic stays are lifted in bankruptcy court, all because the Judge is not directed to look at the paperwork.

By DAVID MUIR
March 23, 2010
// A vice president for one of the nation’s biggest banks claims customers looking for help in lowering their mortgage payments are often told to call an 800 number — where he says representatives then give homeowners the runaround.

//

//

David Muir gets answers from a vice president of one of the biggest banks.

The bank executive spoke to ABC News on the condition that ABC News not show his face or name him, because he feared coming forward would cost him his job.

Of the 1.1 million homeowners who’ve signed up for the federal program aimed at avoiding foreclosures, only 168,000, or 15 percent, of homeowners have had their mortgages permanently modified.

“In our managers meeting, which can last eight or nine hours, we probably addressed mortgage modifications five minutes or less,” the banker said.

Americans Frustrated by Banks

Jay and LeeAnn Givan are two of those frustrated Americans who reached out to ABC News about their banks. They say they’ve run out of time and money. Both lost their jobs in the recession, and they have been begging their bank since last September to modify or refinance their mortgage. Six months later, all the paperwork and phone calls have amounted to nothing.

“The bank’s not interested in helping us,” LeAnn said. “Just a couple of weeks ago, Jay was on the phone for two hours being transferred from department to another department until finally somebody told him, ‘Look, we can’t help you until you stop paying on your house.'”

//

The couple made its last mortgage payment last week.

“I have heard that,” the banker said. “That will affect their credit card, their insurance, [have] a big effect on their credit history.”

The banker described homeowners pleading to him for help, but he said his bank is not interested in modifying mortgages, even after taxpayers helped bail out the nation’s biggest banks.

“It’s just not happening,” said the banker.

The banker said there is significant pressure on bank employees to get customers to take on more accounts than they need because of the late fees and penalty fees that will then co

I have watched the news story about Banks helping with Foreclosure etc…..THEY WILL NOT HELP if they are WELLS FARGO…..They were terrible with my 82 year old mothers mortgage.After being a loyal customer for years shw was not able to get help from me with her mortgae because I was laid off and at that time for a year already….They ASSURED us that a modification was to be done and to NOT PAY anything until it was completed because those payments would be included in new mortgage….we called for months and tried to make some payments only to have house start into foreclosure with their lawyers, be served embarassing papers and be put into undue stress. Went thru Wells President John Stump and 4 other Board members to only be told BANK OWNING YOUR MORTGAGE WILL NEVER AND WOULD NEVER HAVE DONE A MODIFICATION. Why were we told it was being worked on for over 6 months…why a run around like that to a senior citizen who has worked her whole life. End result was COME UP WITH $4500 IN 2 WEEKS or bye bye home your out of there. Terrible to do to anyone. I had found out we were one of 10’s of thousand that Wells did exactly this to also. Just google that problem and you will see. SHAME ON WELLS FARGO and all these banks taking money from us and the government and putting people in worse trouble.
barkleyandme1 11:16 AM
Americans like to sue over everything. Seems like there is grounds for a class action suit against the banks. They used my money for what seems to be strictly their benefit and bonuses. Where are all the lawyers now. Let’s bring suit against the banks for not fulfiling their obligation to the publc. We bailed them out in good faith and they turned around and screwed us.
tjbmeb 9:33 AM

S.W.Florida..I have applied for a modification with Select Portofolio Service, as of this date I have NOT received any information other that it is under review. After reading all the horror stories on this site. I have deceiced that if the modification doesn’t go thru I will foreclose. I will walk away with no hesitation. Why should I pay good money for a bad investment. My money was solid when I purchased the home. However with all the greed from lenders over inflating homes I have no pity. I worked too hard for the American Dream only to be disappointed by Wall Street greed. Come on Obama put your money where your mouth is!

Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud | Tagged: , , , , , , , , , , , , , , , , , | 13 Comments »

FLORIDA BEWARE!! FBA non-judicial foreclosure initiative

Posted on January 29, 2010 by Neil Garfield

Florida Bankers Association, controlled by national and supersize regional banks are trying to convert Florida to a “non-judicial state.”

DON’T LET IT HAPPEN!!!!

Start writing letters and get others to write letters to the Republican controlled Florida legislature. This effort will not only deny homeowners essential rights it will vastly increase the pace of foreclosure sales, thus crashing the market values of homes across the state even further. Taxes will go up, services will go down.

THE ENTIRE REASON IS THAT THE WALLS ARE BEGINNING TO CLOSE IN ON THE PRETENDER LENDERS AND THEY WANT THE LAX RULES OF NON-JUDICIAL PROCEDURE TO LET THEM STEAL MORE HOMES AND WEALTH FROM BOTH HOMEOWNERS AND INVESTORS WHO FUNDED LOANS.

Banks say cut out the courts

By James Thorner, Times Staff Writer

Published Thursday, January 28, 2010

If bankers get their way, Floridians facing foreclosure could be kicked out of their homes in as little as three months.

The Florida Bankers Association, the 400-member-strong lenders’ lobby, has presented state legislators with a bill to upend decades of Florida law and establish “non-judicial” foreclosures in Florida by July 1.

What’s a non-judicial foreclosure? Banks would accelerate foreclosures against defaulting homeowners by bypassing the courts. Judges would no longer rule on foreclosure cases.

Some states — 37 in fact — already grant that fast-track foreclosure authority, including California, Georgia, Alabama and Texas. But Florida, with its plethora of vacation and retiree homes, has always been big on homeowner rights.

If you’re a financially strapped Florida homeowner — 62,719 Tampa Bay properties got foreclosure notices last year — the 53-page bill contains worrisome signs:

• Non-judicial foreclosures must conclude in no less than three months and no more than a year. Most Florida foreclosures take a year to 18 months to work through the courts these days, longer if a lawyer fights a successful rear guard action. So in 90 days banks can theoretically auction the home out from under you.

• The Florida Supreme Court’s newly endorsed mandatory mediation for lenders and homeowners would effectively go bye-bye. The bill provides only for informal meetings between creditors and debtors.[Editor’s Note: This triggered the FBA action. By ordering mediation, the creditor/lender would be required to be disclosed and the whole scheme would fall apart]

• Even after homeowners are evicted, banks can still pursue them for unpaid mortgage debt. But banks will waive that right if homeowners avoid trashing or stripping the house before the new owner takes over.

The bankers association has titled the bill The Florida Consumer Protection and Homeowner Credit Rehabilitation Act. Association president Alex Sanchez views the bill as a way to break a foreclosure crisis partly caused by mortgage fraud. [Editor’s Note: Old trick — name it something that conveys the exact opposite meaning of the bill].

He offered a list of innocents the bankers aim to help: neighbors annoyed by abandoned houses next door; condo associations pursuing dues from properties in legal limbo; cities grappling with urban blight; and judges overloaded with thousands of foreclosure cases.

“We don’t want the property. We’re not into the property management business,” Sanchez said of bankers. “We want to get a property out of the courts and sold to a productive Florida family.”

Finalizing a foreclosure is time-consuming and expensive. The longer a property lingers in the courts, the longer banks get no mortgage income from the property. One Tampa mortgage banker revealed this month that each foreclosure can cost lenders an additional $30,000 in legal fees.

The law would apply to foreclosures after July 1, not old cases already in the courts. Kristopher Fernandez, a Tampa foreclosure attorney, blames the banks themselves for much of the judicial foot dragging.

“These cases are stuck in legal limbo because banks don’t want to push foreclosures,” Fernandez said. “I’ve seen cases where nothing is done. The lenders don’t want these homes back. They know they have to pay assessments once they take them back.”

Pinellas-Pasco Chief Judge Thomas McGrady backs up that point. McGrady has talked about a “dam” in the courts from banks reluctant to schedule sales of foreclosure homes.

What’s the chance of this legal revolution getting consideration? The Florida Legislature convenes on March 2. As of yet, the bill has neither an official number nor formal sponsors.

With populism resurgent and anti-banker attitudes rife, passage could be a stretch. Gov. Charlie Crist would have to sign a pro-banker bill as he’s contesting a U.S. Senate seat with state Rep. Marco Rubio.

“We’ve had conversations in both chambers to have it filed,” said Anthony DiMarco, the bankers association’s executive vice president of government affairs.

“Sure, it’s a change in Florida law. But it will help us get to the bottom of the foreclosure crisis faster.”

Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage | Tagged: , , , , , | 38 Comments »

Foreclosure Defense and Offense: Conversion of Non-Judicial Steamroller to Judicial Process Where Your claims are Heard on the Merits

Posted on October 15, 2008 by Neil Garfield

If you are living in a state with non-judicial procedures, it also allows judicial procedures. The ONLY time the non-judicial procedure should be used is in slam dunk cases, of which there are nearly none, so the Trustee on teh Deed of Trust is violating his fiduciary duty to the homeowner when he fails to do due diligence, discovering the securitization and chain of title problem with the note and mortgage.

If your state does not have a specific procedure for converting the process to judicial, then you must do one of two things — either file suit or file an affidavit of non-compliance with TILA, RESPA and State and other Federal Laws in the county where the property is located in the recording offices where deeds and mortgages are filed. This will cloud the title and hopefully require the “lender” to step into the light and prove his case, saving you the expense and time of filing your complaint.

By forcing the “lender” to start judicial foreclosure proceedings it means that they will be required tof ile and seve a lawsuit on you. In that lawsuit they need to make certain allegations regarding the ownership of the note and mortgage and attach copies of what theya re talkilng about. IN some cases, the lender might just disaapear if you file anything in the county records that would require them to make allegations and submit documents that are fraudulent.

Filed under: CDO, currency, Eviction, foreclosure, GTC | Honor, Mortgage | Tagged: , , , , | 11 Comments »

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