In a nutshell, moratoriums will do very little for homeowners or the courts. First unless a specific moratorium order states that it bars sales and evictions it is only the foreclosure action that is temporarily suspended. At some point in the near future, homelessness will spike because of a new tidal wave of foreclosures.

Second a moratorium does nothing to forgive payments. So when the moratorium expires, all the payments are due unless you ask for and receive some sort of forbearance agreement from servicers (who probably don’t have any authority despite all appearances to the contrary).

Third, don’t rely upon your own interpretation of what you read on the Internet. There is no substitute of a three year legal education and law degree and there is no substitute for decades of experience in and out of the courtroom.

Fourth, DO use this time to prepare for a confrontation with the banks and companies claiming to be servicers. Do not admit to anything —even the existence of your obligation even if that makes you feel uncomfortable.

Fifth start the administrative process by sending out a Qualified Written Request under RESPA and a Debt validation Letter under FDCPA. But stop thinking you know how to do that. Overbroad generalizations and conclusions are a perfect excuse not to answer you or evade your questions.

*Neil F Garfield, MBA, JD, 73, is a Florida licensed trial attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.*


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Ocwen Admission Confounds Judges and Experts

This is a blatant attempt at deception  — a deceit without which none of the Trusts would be recognized as legal entities much less the owner of loans. Ocwen is admitting that there is no single owner of the loan it is allegedly “servicing.” “There is no single owner of the account, but rather the account is one of many in a securitized investment trust.”

For the uninitiated, this statement might suffice or at least be threatening enough as a challenge to their experience and intelligence to direct them away from the central false assertion that the trusts own any loan. They don’t.

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Hat Tip Bill Paatalo

see Ocwen Responsive Letter – CFPB – 11-03-2017

In this real live case, Ocwen is fulfilling its job that includes obfuscation as one of its paramount duties. After first “answering” the CFPB requests with obfuscation it then states “The ownership status of the account is based upon our review of our records as of the date of this letter.” It doesn’t say that the information is correct or even believed to be correct. It doesn’t say they performed due diligence to determine whether a true chain of ownership exists, combing the various records of “predecessors.”

Nor is there a statement that Ocwen is authorized to service the account. It simply says that it IS servicing the account. And of course then they do not assert the basis of their authority since they never asserted their authority. It is implied. It is assumed. In court, it might well be presumed by the court, the foreclosure mill attorney and even by the borrower and the borrower’s attorney. This is one of the errors that snatches defeat from the jaws of victory. An attack on what is missing instead of trying to dodge what is there would result in far more victories for homeowners.

The attorney’s client is Ocwen. Ocwen is impliedly asserting authority to service but can’t show it. In one recent case of mine, they came in with a Power of Attorney signed by someone who purportedly executed the instrument on behalf of Chase. The problem was that Chase was never mentioned before in any pleading, documents or testimony. The POA was false.

Back to ownership: “there is no single owner” implies that there are many owners. There are several problems with that assertion or implication that involve outright lying. Ocwen is saying that the loan is in a securitized investment trust which certainly would imply that the loan is not in transit nor is it owned by more than one trust.

Further if the reference (omitted) is to investors, that too is a lie in most cases. The certificate indenture usually contains the express statement that the holder of the certificate receives no right, title or interest to the debt, note or mortgage in “underlying” loans (which have never been acquired by the trust anyway).

So what are we left with? No single owner which means that the securitized investment trust doesn’t own it because that is one single entity. Multiple owners does not refer to investors because the express provisions on their certificates say they have no ownership of the debt, note or mortgage in the alleged loan.

The counterintuitive answer is that the bank’s are saying there is no owner. But there is an owner. It is a group of investors whose money was used to fund or acquire the loan. This was not done through any trust, as they intended and as was required by the “securitization” documents. If that was the case then the trust would have been named as lender or as holder in due course. That never happened.

But the holders of worthless securities can claim an equitable interest in the loan and perhaps even the collateral. In order to establish that interest the investors must go to a court of competent jurisdiction. But in order to do that the investors must know about the specific loan transaction(s), which they don’t. The fact that they don’t know about it and can’t exercise their rights does not mean that legally, anyone can intervene and assert ownership rights.

Ten years ago I said get rid of the current servicers and stick a government agency in as intermediary so that investors, as real parties in interest and borrowers as real parties in interest could do what the lending industry normally does best — work this out so that nobody loses everything and nobody gets a windfall. This could have all been over years ago and the impact on the economy would have been a powerful stimulus leaving no inherent weakness in our economy or our currency.

Unfortunately the courts strayed from making legal decisions and instead made a political decision to save the banking industry at the expense of homeowners.




New Mexico Supreme Court: No Standing for Deutsch

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Hat tip to Ken McLeod
So we are coming full circle where the assertions I advanced starting in 2007 are finally being accepted by the Courts. This is happening because the Courts are, at a minimum, highly suspicious of whether a real creditor exists and whether the banks are still involved in an illegal scheme in which they literally had to lie, cheat and steal to make their scheme work while at the same time making it look like “this is a standard foreclosure” which is the refrain used by bank lawyers in millions of cases.
The trial court, as usual, found that Deutsch had standing — even if they didn’t own the debt and even though it was apparent there a snowstorm of paper to cover up the fact that nobody involved in that foreclosure, except the homeowners, had any interest in the property, the debt, the note or the mortgage.
The appellate court disagreed with the trial court and the Supreme court of New Mexico affirmed the appellate court with an opinion.
The lawyers for Deutsch Bank, who probably knew nothing about the lawsuit, performed all sorts of gymnastics to “prove” they owned the loan. But what it really comes down to is that they were relying on legal presumptions as a substitute for proof. The attitude of the trial Judge was reflective of the pandemic of judicial tolerance for fraud. The plain fact is that if Deutsch actually owned the debt they would have said so. If Deutsch actually had paid for the debt, the loan, the loan documents they would have said so, asserting they are a holder in due course who had purchased for value in good faith without knowledge of the borrower’s defenses.
The UCC in virtually all states accepts the proposition that the maker of a note, even if it was procured by fraud, bears the risk of loss on the note and on the mortgage if they were actually purchased for value, in good faith and without knowledge of the borrower’s defenses. Why wouldn’t Deutsch have alleged that if they really owned the loan? The answer is obvious. The Trust is a sham with no business activity. The Trustee is window dressing who has no duties and whose Trust department has nothing to do with an empty trust.
Since the sale of MBS to investors was NOT followed by payment to the Trustee on behalf of the Trust, there is nothing for the Trustee to administer and no duties to perform except receiving their monthly fee for keeping their mouth shut.
This case is a good example of the double-speak offered by parties who wish to initiate foreclosure. The tide is turning. If the mistakes of the past are continued, we are opening the door to a new industry — trolling for debt, creating false assignments and enforcing the debts as though the assignment was real. I can even see how parties might simply troll mailboxes and give a new address and name for the payment of even a household bill. Some evidence of this new industry has already started in California and other states.
It is not the fault of borrowers that there is no creditor to be found, resulting from the infinite intermingling of investor funds such that it is impossible to identify a creditor or even a group of creditors in some dynamic slush fund in which money is coming in every minute and money is going out every minute. Thousands of investors in thousands of alleged Trusts have lost any nexus between their money and any loans that were allegedly made.


How the Banks Played With Investor Money, Made Money and Claimed a Loss


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Editor’s Comment and Analysis: The passage below is taken from the PSA and Prospectus of a Wachovia “securitization” offering. Most of the documentation from most of the investment banks have the same or similar language since the same group of law firms wrote the boiler plate for all of them. I might add that I have a confidential source that some lawyers refused to participate and actually quit their jobs claiming that the scheme was illegal and probably criminal.

This is why Deny and Discover is so powerful. When you dig down you see that things are not as they  appear or are represented and what you thought was true, is not true. Both borrowers and investors in bogus mortgage bonds were the subject of a sting initiated by the banks on the premise that nobody would actually read and analyze these documents before investing and the borrowers being ignorant of the existence of such documents could not possibly pose a threat.

If you read the passages below carefully you can see how the banks took money from investors, made loans with part of the money, kept the rest, and then claimed losses causing insurance companies, credit default swap counterparties and the Federal government to bail out the banks when it was the investors and the borrowers who were the actual parties losing money.

The “seller” of the mortgage is actually given the right to retain title so they will have an insurable interest and something to sell, even though they are actually holding “title” for the investment pool. The passages below reveal the exposure to both investors and borrowers as a result of this practice and how the investors ended up with unenforceable mortgages and notes, and the homeowners ended up with defective title, and the county recorders offices had their system of recording forever corrupted by the illicit practice under cover of hidden disclosures that enabled the banks to pull off the largest economic crime in human history.

INSIDER TRADING: What they have not answered to is whether the bets against the very same bonds they were selling were violations of insider trading. They knew what they were going to do with the bonds and they knew the rate of defaults would skyrocket as the true terms of the fabricated notes started to kick in.

If the securitization plan was actually legal instead of being a lethal scheme, they would not have a statement and the investors, if they had seen it would not have agreed to such terms. The recordation of the mortgages and delivery of the notes would have been required as per the laws of most states. They would not have reserved the right to NOT record the mortgage which by their own admission could result in the investors priority position being diminished to zero, which is exactly what I have been saying for years.

Who in their right mind would agree to turn over $100 million to an investment bank from a managed fund that is required by law to virtually eliminate risk by investing in only the highest grade investments, when the prospectus says “security holders could lose the right to future payments of principal and interest to the extent that those rights are not otherwise enforceable in favor of the indenture trustee under the applicable mortgage documents.?”

PRACTICE HINT: Don’t stop drilling in discovery and make sure you or an analyst reads the documentation. There is a lot of material buried in that stack of print that supports the allegation that the lenders were pretenders and that the loan never made it into the pool. Provisions like the ones below allow the investment banks to trade the loans as if they were their own. Imagine if you bought 100 shares of stock and the broker started trading the stock in his own name — wouldn’t you have something to say about that? Imagine further that the broker borrowed money using the stock and created a loss which he now tells you is your loss.

From a 2002 Wachovia Home Equity 424B5 filing:

Non-Recordation of Assignments; Possession of Mortgages                        

     Subject to the conditions described in the servicing agreement, the seller will not be required to record assignments of the mortgages to the  indenture trustee in the real property records of the states in which the     related mortgaged properties are located. The seller will retain record title to the mortgages on behalf of the indenture trustee and the security holders.     

Although the recordation of the assignments of those mortgages in favor of the indenture trustee is not necessary to effect a transfer of the mortgage loans to the indenture trustee, if the seller were to sell, assign, satisfy or discharge any of those mortgage loans prior to recording the related assignment in favor of the indenture trustee, the other parties to the sale, assignment, satisfaction or discharge may have rights superior to those of the indenture trustee.

In some states, including Florida and Maryland, in the absence of     recordation of the assignments of the mortgages, the transfer to the indenture trustee of the mortgage loans may not be effective against certain creditors or purchasers from the seller or a trustee in bankruptcy thereof. If those other parties, creditors or purchasers have rights to the mortgage loans that are superior to those of the indenture trustee, security holders could lose the right to future payments of principal and interest to the extent that those rights are not otherwise enforceable in favor of the indenture trustee under the applicable mortgage documents.



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Florida – Plaintiff Must Prove Ownership at Time Foreclosure is Filed

by Chip Parker, Jacksonville Bankruptcy Attorney


In the latest foreclosure decision out of Florida,  the 4th District Court of Appeal, in the case of McLean v. JP Morgan Chase, ruled that the plaintiff in a foreclosure must prove it owns and holds the note at the time the foreclosure case is filed.

In the McLean case, the appellate court reversed the trial court’s entry of summary final judgment in favor of the bank because the bank failed to provide evidence that, at the time the case was filed, it “obtained its rights and standing to proceed in this cause” prior to the filing date.  Instead, it presented to the trial court an Assignment of Mortgage dated three days AFTER the case was filed.

The trial judge, apparently not understanding the basic concept of chronology, denied the homeowner’s motion to dismiss the case and granted the bank’s motion for summary judgment.  In reversing this decision, the 4th DCA said:

While it is true that standing to foreclose can be demonstrated by the filing of the original note with a special endorsement in favor of the plaintiff, this does not alter the rule that a party’s standing is determined at the time the lawsuit was filed. Stated another way, the plaintiff’s lack of standing at the inception of the case is not a defect that may be cured by the acquisition of standing after the case is filed. Thus, a party is not permitted to establish the right to maintain an action retroactively by acquiring standing to file a lawsuit after the fact. [Cites omitted]

While this ruling may seemingly state the obvious that you can’t put the cart before the horse, please understand that many Florida trial judges treat foreclosure cases differently.  They tend to allow plaintiff lawyers to “dumb down” the practice of law.

I’m not saying plaintiff’s lawyers are stupid.  To the contrary, they are smart enough to know that most foreclosures are impossible to win by applying 150 years of Florida real estate law.  So, they have waged a campaign to convince trial judges to relax Florida Statutes, Florida case law, the Rules of Evidence and Rules of Procedure.   Because of the sheer volume of uncontested foreclosure cases winding their way through Florida’s courts, it is easier for these judges to “clear out the backlog” by forgetting the stuff they learned in their first year of law school.  Sadly, many lawyers defending homeowners allow the “dumbing down” because they, too, forgot (or never learned) how to litigate.  Many are converted real estate lawyers with little or no trial practice.

Just a couple of days ago, I attended a hearing where the judge accepted as evidence an unproved allegation in the plaintiff’s motion.  This essential factual element was just “presumed” because the plaintiff’s lawyer said so, even as I vigorously demanded that the plaintiff lawyer provide some piece of evidence to back up the assertion.  Call it “par for the course.”

Fortunately, albeit reluctantly at times, the appellate courts routinely reverse these horrid trial court decisions, but if the trial judges continue to ignore Florida appellate decisions favoring homeowners (and the 150 years of jurisprudence), who cares?

Many trial judges forget that their job is simply to interpret the laws on the books.  Instead, they often ignore the laws because they fear “giving a homeowner a free house.”  This is known a “legislating from the bench.”  Our American democracy is based upon the notion of “separation of powers,” wherein government is divided into the executive, legislative and judicial branches, each with separate and independent powers and areas of responsibility so that no one branch has more power than the other branches.  When a trial judge factors his social view into his decision, he has essentially stolen power from the state legislature.

Who owns the loan? Ohio Supreme Court is taking up the question


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Monday, August 29, 2011
Who owns the loan?
The Ohio Supreme Court is taking up the question of what a bank needs to prove to force someone from his home.
Story by Mhari Saito
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The Ohio Supreme Court is getting ready to take on what some are calling the biggest issue in state foreclosure law in a century. The question before the justices is what paperwork does a lender need to force an owner out of his home? For Ohio Public Radio, WCPN’s Mhari Saito reports that what the state’s justices decide could have huge implications for the financial services industry.

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Antoine Duvall and his wife and young son waited until after Christmas to move into their freshly renovated two-story house in Cleveland’s Collinwood neighborhood. It was 2006 and Duvall, a salesperson for a legal document services company, had just happily signed a mortgage and a promissory note to get his loan from Wells Fargo. But soon, he started to get letters about his loan.

Antoine Duvall: We started to receive a lot of different information in the mail, not coming from Wells Fargo, saying that the process had changed a little bit and had been transferred or sold to a different entity. So it was kind of a little confusing.

Confusing, perhaps, but definitely the norm. Like many mortgages during the real estate boom, Duvall’s loan was bundled into a bond and sold on Wall Street to a new owner. And like so many loans, that transfer was never recorded in the county recorders office. Antoine Duvall’s attorney Gary Cook:

Gary Cook: The issue we’ve encountered is, as in Mr. Duvall’s case, that once the note is transferred there is a major difficulty in identifying who the actual owner of the note is.

And that becomes an issue when the owner of that note and mortgage wants to take back the house. US Bank, as the trustee of the bond that held Duvall’s mortgage, sued to foreclose when he fell behind on his mortgage payments. But at that time, court records showed Wells Fargo – not US Bank – owned his loan. Legal Aid of Cleveland’s Howard Strain says lenders filing for foreclosure need to prove they should be paid on the debt.

Howard Strain: So it’s like if I went into a bank with a check payable to you, Mhari, a photocopy of that check, and I said please cash it for me, I think we all know that the bank wouldn’t cash it. The security guard would escort me out.

Cuyahoga County and the 8th District Appellate courts dismissed the case against Duvall because the US Bank trust didn’t prove it owned his loan before it filed for foreclosure. But other courts around the state have ruled differently on similar cases, so the Ohio Supreme Court has taken Duvall’s case to settle the question. Peter Swire is a former housing official with the Obama administration who now teaches law at Ohio State University. He says the judges will have to deal with tough arguments from both sides.

Peter Swire: The homeowner says show us the note, you don’t have a right to this house, you can’t kick me out of this house. On the other side, the bank’s view is there’s a homeowner who stopped paying their mortgage. They knew they had a mortgage, they knew it when they bought the house and they get to laugh and stay in the house while the bank has to come up with paperwork they don’t have.

US Bank doesn’t comment on pending litigation. But In a friend of the court brief, attorneys for government-owned mortgage giants Fannie Mae and Freddie Mac sided with them, warning a ruling against the banks would create a “jurisprudential quagmire” that would slow Ohio’s mortgage markets.  Foreclosure is the most common type of case in Ohio’s courts. About 80,000 suits are filed a year. Again, law professor Peter Swire.

Peter Swire: If the homeowners win, the banks will have to work harder to prove they have the paperwork. The banks might have to pay some settlement to get the family out of the house. But our system of property will not collapse.

The Duvall case seemed like a good one for the state Supreme Court to rule on to settle the issue but it has taken an unusual twist. You might even call it another bank snafu. The homeowner, Duvall, now owes nothing on his mortgage because – in an action unrelated to the Supreme Court case – the loan servicer cleared his debt completely in June. Duvall doesn’t know why it happened and neither his loan servicer nor US Bank’s attorneys are commenting. It’s not clear what the state Supreme Court will do, but attorneys for both sides say the legal question is not going away. The court could still take up the Duvall case or it could address several other cases on the same issue, waiting in the wings. 

Listener Comments:


Yes, there are several little errors in the story, but none of them are material.

What is truly amusing about the banks’ position is that in every other type of case, they would be arguing the same position the homeowners are arguing against them. The issue is when can a party go to court for relief. When a consumer files a claim, corporate America first asks, “Does this person have the right to sue us now?” If they think not, they ask the Court to dismiss the case for lack of standing (or another, related, concept). Now that they are the plaintiff, banks are claiming that they don’t need to own the note or mortgage before asking a court enforce those contacts.

The issue is far more complicated than either the reporter or the posters here know. Yes, MERS is a major player (BTW – that stands for Mortgage Electronic Registration System), but so are the thousands of investments trusts (they are trusts, not bonds) called Real Estate Mortgage Investment Conduits (“REMICS”). It is interesting that few people mention the other major player who made this all possible. That would be Uncle Sam. Fannie and Freddie, and the federal government’s push for expanded housing lending, created an environment in which the people making the loans stopped being bankers (and I mean that in the good, old, down-on-the-corner banker who based his lending decision on what he knew about the borrower and the collateral) because they knew they would not have to live with the lending decisions they made. Why worry about collateral value if you are going to sell the loan tomorrow to some large, faceless investment creation of Wall Street? The way people were being paid changed from being based on the quality of the loan over its 30-year life, to the quantity of the loans sold in this quarter.

Why was the Duvall mortgage mysteriously paid off? I think it was because something in the facts of Duvall worries the banking industry. That something is, no doubt, the paperwork showing that the REMIC at issue had some interest in the note and mortgage. The devil’s in the details, and in Duvall, those details were spread over hundreds of pages complex investment documents.

Posted by: Ohio Lawyer on August 30, 2011 10:08AM

So the bank/servicer “cleared his debt” without explanation. Remember, it’s all about the money.

It’s simple, the bank/servicer got wind of a homeowner fighting back with no hope of winning (and possible threat of Supreme Court) and decided it was cheaper to give the homeowner his house than face the consequences.

It’s always about the money.

Now they can argue that there are no longer any damages – presto/chango – no basis for the lawsuit.
Posted by: Tomc (United States) on August 30, 2011 1:08AM

The story is excellent as the reporter (Saito) interviews the Homeowner (Duvall) the Attorney (Cook) and legal aid (Strain) on the real question in front of Ohio’s highest court …To have STANDING, as a plaintiff, in a mortgage foreclosure action, must a party show that it owned the NOTE and the MORTGAGE when the complaint was filed? The bank (US Bank) attempted to claim ownership in order to foreclose. But when forced to prove they owned either…they could not. and instead they had the loan servicer and Wells Fargo“pay-off” and “satisfy” the mortgage, to COVER-UP the FRAUDulent transfer of the note and mortgage. Great Work by attorneys Cook and Aten
Posted by: OHIO FRAUDclosure (OHIO) on August 30, 2011 1:08AM
For the whole story and background go to ohiofraudclosure (dot) blogspot (dot) com
Posted by: OHIO FRAUDclosure (OHIO) on August 30, 2011 1:08AM

Open letter to the New Jersey Supreme Court re foreclosure.

Posted by: HurtingHomeOwner (USA) on August 29, 2011 11:08AM

jurisprudential quagmire what a bunch of B.S. from fannie and freddie what it means is they will actually have to produce paperwork that was never kept,filed or recorded. Fannie and freddie should be closed and people should get their homes free and clear…..
Posted by: gregory (sj) on August 29, 2011 11:08AM
>The question is NOT “who owns the deed”, it’s who owns the note. With ALL due respect, that’s sloppy reporting and/or editing.<

Absolutely correct! Sloppy reporting, though, may be better than no reporting. NOT!

To get to the bottom of this Ponzi scheme and to determine the names of the culprits who designed and managed it, strong, objective, investigative reporting is needed… by every media resource who desires to claim themselves as “journalists.”

Otherwise, the issues will remain as clouded as are the titles of every home purchased and/or refinanced during the last 15 years wherein the ghostly “specter of MERS” (Mortgage Electronic Records Service) appeared in the paper work of real estate closings.

This “legal ghost.” MERS, continues to haunt the land registries and courts of our nation. It creates fear in the hearts of “regulators” and spineless prosecutors who are called upon to shine the light of day into the crypts where the dreaded “notes” are hidden.

No owner of property in the US, and no local, state, or federal court will be relieved of the “moanings and groanings” of MERS until it is completely exorcised from the “chain of title” by a massive quiet titling of all affected properties.

The only way to do so is to “punish the MERS stakeholders” who have been “protected” by evil friends in the environs of the SEC, the Halls of Congress, the towers of academia, and the Statehouses of every state (perhaps with the exception of New York.)

Pray that brave souls…. like the Knights in Shining Armor of old will step forth and challenge the Leviathan that has is the “Banksters” who have “Securitized the World.”

Every evil participant in this pervasive and contagious plague must be “burned at the state” or confined forever in the “towers” of our land. A “new prince” of a “new kingdom” must be installed!
Posted by: DanJS on August 29, 2011 10:08AM

The question is NOT “who owns the deed”, it’s who owns the note. With ALL due respect, that’s sloppy reporting and/or editing.
Posted by: In the industry (cleveland, ohio) on August 29, 2011 3:08AM
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