Patrick Giunta Esq. Scores Another Homeowner Win in South Florida v US Bank Trustee LSF9 Master Participation Trust: William Paatalo, Expert Testifies

Foreclosure volume has declined  but that doesn’t reduce the number of cases that are deficient and even fraudulent.

As more senior Judges have more time to review the evidence, the legal presumptions sought by foreclosure mills and come to conclusions about the facts, they  are increasingly suspicious about the claimant, the claim and the failure of proof of real facts.

Kudos again to trial lawyer Patrick Giunta, Esq. with offices in Ft. Lauderdale, Florida. Trial was held on October 7, 2019. This is the third time we have covered a win by Giunta.

Final Judgment for Defendant Case #50-2017-CA-012236, 10/8/19

Circuit Court West Palm Beach, Florida

ORDERED AND ADJUDGED AS FOLLOWS:

  1.  Plaintiff failed to prove it had standing to enforce the note.
  2.  On Count I, Mortgage Foreclosure, and Count II Re-establishment of Lost Note, Plaintiff US Bank as Trustee for the LSF9 Master Participation Trust take nothing by this action and the Defendants …. shall go hence without day.

Game set and match. The Judge here obviously sought to prevent the foreclosure mill from bringing another action.

Some judges upon finding that standing was lacking follow precedent and dismiss without prejudice enabling the foreclosure mill to try again. But more judges are taking great pains to examine the evidence and are coming to the legal conclusion that the Plaintiff’s proof failed.

Upon a factual finding of failure to prove a prima facie case, the court then enters Final Judgment, which for all purposes between that claimant and that borrower is a final determination on the merits.  Any future attempts to foreclose by US Bank or the LSF9 Master Participation Trust are barred by res judicata, collateral estoppel and the Rooker Feldman Doctrine if it applies.

If any attempt is made to bring another foreclosure action in the name of another entity, trust, LLC or corporation, they would also likely be barred without pleading and proving real facts that show that the Plaintiff is the owner of the debt and paid value for it and the previous parties had executed assignments and other documents without any right,  justification or excuse and without notice to the new claimant. That isn’t going to happen.

Giunta doesn’t take a lot of these cases but when he is engaged he tends to win. He understands securitization and relates it back to the failure to prove a prima facie case. He avoids trying to prove or even accepting the burden of proving who actually paid value for the debt, if anyone.

He employed Bill Paatalo in this case whose testimony underscored the deficiencies in the allegations, the documents, and the proof. Paatalo appeared as an expert fact witness.

 

 

“Participants” in False Claims of Securitization

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

Get a consult! 202-838-6345

https://www.vcita.com/v/lendinglies to schedule CONSULT, leave message or make payments.
 
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
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see http://bpinvestigativeagency.com/beware-the-lsf9-master-participation-trust-is-operating-as-a-secret-agent/

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

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

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

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

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

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

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

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

DUAL Tracking: The Game of “Chicken”

In their quest for a windfall they have given the homeowners a path to justice — one where the notice of default, notice of sale, notice of acceleration notice of right to reinstate and redemption rights are all screwed up (i.e., wrong and invalid). With 80%+ of the losses already paid, the loans could have been modified down to nothing or nearly nothing compared with the original balance showed on the note, whether the note was fabricated or not. The problem is not whether the remedy exists. The problem is whether the lawyers and litigants have the guts to pursue it.” Neil Garfield, www.Livinglies.me

OneWest was formed over a weekend by several wealthy investors who paid virtually nothing for billions of dollars in what were claimed as “portfolio” loans owned by IndyMac which went bankrupt and into FDIC receivership in September, 2008. The agreement specified that the FDIC would pay 80% of the losses incurred on the loans. The first problem is that it said it would pay OneWest the 80%.

The second problem is that One West maintained their claim for the full amount against homeowners even though they had already submitted the claims and collected — many times more than once, from our analysis. That payment was not subject to repayment, subrogation or anything else that we can find, so the “creditor” or “agent” of the creditor has been paid on that account, but the balance has not been reduced.

In their quest for a windfall they have given the homeowners a path to justice — one where the notice of default, notice of sale, notice of acceleration notice of right to reinstate and redemption rights are all screwed up (i.e., wrong and invalid). With 80%+ of the losses already paid, the loans could have been modified down to nothing or nearly nothing compared with the original balance showed on the note, whether the note was fabricated or not.

The real problem is that most lawyers are not presenting their cases with the confidence of knowing that whatever the position of their opposition, it is probably a misstatement of the truth — the opposing lawyers in most cases don’t even know that they are making false statements and representations. Practically every foreclosure trial or hearing begins with the words “This is a simple foreclosure, your honor.” Nothing could be further from the truth.

Patrick Giunta, Esq. is co-counsel on several cases we are litigating in South Florida. One of them is a qui tam action against OneWest for false claims to the government. He has again brought to my attention the case decided in California (where almost everyone says it is hopeless) in which the homeowner stuck to their guns instead of accepting various offers of settlement. The reason we bring it to your attention again is that it demonstrates the fact that if you know you are right and you have the Judge on your side just for the raw elements of pleading or discovery, the confidence of the opposition is shattered even if they put on a good show of appearing otherwise.

My article from September 13, 2013 explains the scenario from the California case. Our current case goes even further alleging that OneWest intentionally misrepresented losses to the FDIC and the Federal Home Loan Housing Agency (and probably other private and public institutions) in order to collect multiple times on nonexistent losses. But it also dove-tails with the California case because they were steering homeowners into “modification” programs by the old trick “You have to be 90 days behind before you can be considered for modification.”

And by the way that trick phrase is not only untrue (designed to keep the modification “in house”) but also potentially criminal and illegal, because for one thing HAMP does not require delinquency in loans for modification. It gets worse. Most of the loans submitted for modification were in fact subject to claims of securitization and the authority of OneWest is questionable at best. The 90 day delinquency trick is wrong. It also constitutes the unauthorized practice of law. If a lawyer says it or anyone from his or her office under instructions from the lawyer, it might be grounds for a bar grievance. Practicing law without a license is an actual felony in many states subject to imprisonment, fine or both.

Virtually all servicers have trained their employees on how to say that without it appearing to be advice — but the homeowner hears it just the way the servicer wants them to hear it — I must go into default if I want the modification. THUS THE DEFAULT IS PROCURED INTENTIONALLY BY THE SERVICER WHICH IS INTENTIONAL INTERFERENCE WITH THE CONTRACT, IF IT EXISTS, BETWEEN THE BORROWER AND THE TRUST.That is an intentional tort enabling the Plaintiff Homeowner to allege damages far beyond economic damages and to even ask for punitive damages, exemplary damages or treble damages under statutory authority, sometimes including the cost of attorneys fees and costs.

The problem is that no modification is offered even if the homeowner makes trial payments on an “approved” modification. Worse yet, those payments are also frequently missed when the servicer or “creditor” issues a statement, report or notice. Or the modification actually raises the payments and makes it more impossible for the loan to work — which brings the servicer to the point they want: foreclosure to collect or keep the money they received on that loan, directly or indirectly, and which they never reported to the court, the borrower or anyone else.

The OneWest situation is only symptomatic of the rest of the “industry.” Virtually all servicers play the same games. These intermediaries and their co-venturers are collecting over and over again from loss sharing agreements, insurance, credit default swaps, and guarantees and other hedges, over and over again. They report it to nobody. And neither the Justice department or even our new CFPB seem to have any interest in the one factor that would bring down the number of foreclosures to nearly zero — giving credit where credit is due.

Practice Hint: For the bold and creative I would argue that that the entire profit earned from using the name of the homeowner to sell bonds,and profit from loss sharing and loss mitigation techniques should be disgorged to the borrower, whose note specifies how the payments are to be applied. One lawyer in Phoenix refers to this as my most obnoxious theory. I bet. It would disgorge all the money the banks made by declaring non existent losses.

If the “creditor” has received money directly or through payment to their agent, then the balance of the receivable is reduced — and in the simplest bookkeeping class we know that the corresponding payable from the borrower is also lost. The intermediaries could get to keep their ill-gotten claims on multiple reports of the same nonexistent loss, with a correction of the principal balance due from the borrower.

Instead they would rather get hit for a seven figure verdict or a six figure settlement when one out of a thousand gets up the nerve to really challenge them. The numbers all balance out in favor of Wall Street — as long as Wall Street keeps winning the game of “chicken.”

http://livinglies.me/2013/09/13/victory-for-homeowners-received-title-and-7-figure-monetary-damages-for-wrongful-foreclosure/

For further information please call 520-405-1688 or 954-494-6000. Consults available to homeowners’ attorneys, to wit: homeowners can attend only if they have a licensed attorney on the conference call. Workbooks on General Foreclosure Litigation, Evidence and Expert Witnesses are also available.

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