Power of Attorney | Livinglies's Weblog

Modifications Are Part of the Big Lie: Don’t send that application for modification if you don’t want to waive important rights.

Posted on May 7, 2021 by Neil Garfield

The application for modification licenses New Rez aka PHH aka Ocwen to sell, distribute the personal data and transaction data to third parties. Besides the obvious problems with data privacy, this confirms the apparent voluntary participation of the homeowner in a securities scheme that was and still is concealed from the homeowner.

By filing the application the homeowner is waiving his right to keep the compensation that was paid for the homeowner’s role in launching the securities scheme or to ask for more compensation. And it creates an assumption of risk by the homeowner that was, is, and always will be concealed from the homeowner. All of this is “illegal” but by signing the document the homeowner has launched a legal presumption that the document and everything on it is valid.

It reaffirms the concealed nature of the transaction in which the note and mortgage were executed and delivered. Instead of a loan agreement, the application alone establishes the authority of the New Rez aka PHH aka Ocwen to act as agent/servicer even though it has no such authority. It also makes New Rez aka PHH aka Ocwen the creditor, which means the homeowner is accepting a virtual creditor instead of a real one. And the homeowner is waiving any right to contest the standing of New Rez aka PHH aka Ocwen to administer, collect, and enforce the note and mortgage.

On behalf of a client, I recently received an “offer” for my client to apply for a modification. My response is going to be that we would be happy to apply for modification if New Rez aka PHH aka Ocwen can demonstrate (a) that the loan account receivable exists, (b) that U.S. Bank owns it on behalf of either a trust or certificate holders and (c) that New Rez aka PHH aka Ocwen can demonstrate that they have been authorized to act as agent/servicer for a creditor who owns the underlying obligation because (a) they paid for it and (b) they received a conveyance of ownership of the debt as part of a purchase transaction from someone who owned the loan account receivable.

Of course I know that they cannot do that. I know it because along with Patrick Giunta, Esq. in Fort Lauderdale all of that was established beyond any doubt. the Judge found that the trust, the trustee, and the agent/servicer (Ocwen) had no relationship to the debt, note, or mortgage but may have had possession of a note (now lost) that might have been an original. Final Judgment for the homeowner. In fact, at trial, the robowitness was dumbfounded when he realized that the fabricated “Power of Attorney” appointing Ocwen as servicer and as an “attorney in fact” had been not only false but incorrectly created with Chase being the grantor. Chase had nothing to do with this case.

But because they did not file the “original note” until after the lawsuit began — in 2008 — the judge felt compelled under Florida law to enter judgment for the homeowner with findings of fact that disposed of the merits of the case but dismissing the case without prejudice. that is because finding that there was not even the allegation of possession of the note before the filing of the lawsuit there was no jurisdiction. And no jurisdiction means the court is powerless to do anything but dismiss the case.

So the lawyers refiled the case even though there has been a complete negative adjudication of all facts necessary to prove a prima facie case for foreclosure. And they barely managed to squeak through a motion to dismiss because the defense of res judicata is an affirmative defense and so we will file our own motion for summary judgment.

The first interesting thing about all this is that the lawyers chose to file a case that they had already lost. Why? Well until two weeks ago, the law in that DIstrict was that there was no claim for attorney fees if the homeowner won because they established that the named claimant lacked legal standing — a fancy way of saying no case.

The recovery of attorney fees can only be based upon statute or contract. There is no statute that specifically grants the right to recover attorney fees when the named Plaintiff loses a foreclosure case. But there is the contractual provision in the note and mortgage for recovery of fees and Rule 57.105 Fla. R.C.P. that says that such provision is reciprocal.

BUT once the homeowner proves that the Plaintiff is NOT part of the contract, the law WAS that having proven that there was no contractual relationship between the Plaintiff and the homeowner, the homeowner was barred from taking advantage of the attorney’s fees provision in that contract.

All of that may seem to have some logic except for one thing: it was the Plaintiff who invoked the contract when they started the lawsuit asking for attorney fees and when they were shown to be lying, there are about a dozen reasons why they should not escape an award of attorney fees and costs. And that is what the Florida Supreme Court found. So now the attorneys have filed a new lawsuit that they thought had no risk if they lost; but they have a huge risk because the premise under which they were operating was not only wrong but downright malevolent. The playbook is designed to wear the homeowner down even if there is no case against the homeowner.

And so it is interesting that the unauthorized agent/servicer New Rez aka PHH aka Ocwen, constantly changing names to confuse the recipient, is now sending an “offer” to allow my client to apply for a modification. And just to be clear, that is no offer at all. They’re not saying they will consider it, grant it, or even that they are offering it on behalf of some named creditor. And that is why I scored points by filing three motions for sanctions against the opposing side which were granted. They showed up at “mediation” without any authorized person to settle the case. They were only authorized to offer to allow the homeowner to apply for a modification.

This particular offer was sent pursuant to a settlement agreement with the Florida Attorney General that requires them to modify loans. The AG office of course made the same mistake as all law enforcement and all regulators, to wit: that the agent/servicer was actually authorized to modify. In fact, the agreement can now be used to argue that they must have had the authority to modify — why else would that agreement require modification? THE AG was either hoodwinked or playing along. I don’t know.

But the main point of the modification is clear. It changes the falsely labeled loan agreement executed by the homeowner into something entirely different. Instead of a loan contract, the proposed application for modification changes the transaction forever. Perhaps the better description is that it reaffirms the concealed nature of the transaction in which the note and mortgage were executed and delivered. Instead of a loan agreement, the application alone establishes the authority of the New Rez aka PHH aka Ocwen to act as agent/servicer even though it has no such authority. It also makes New Rez aka PHH aka Ocwen the creditor, which means the homeowner is accepting a virtual creditor instead of a real one. And the homeowner is waiving any right to contest the standing of New Rez aka PHH aka Ocwen to administer, collect, and enforce the note and mortgage.

So there you have it. That is the reason they sent it. It was designed to lure me into sending this to my client in order to establish a fact that doesn’t exist and a fact that has already been defeated — standing for either the named Plaintiff (U.S. Bank as trustee for SASCO, etc) or anyone else designated by New Rez aka PHH aka Ocwen. If they had been successful they might have a shot on the second lawsuit. And it now licenses New Rez aka PHH aka Ocwen to sell, distribute the personal data and transaction data to third parties. Besides the obvious problems with data privacy, this confirms the apparent voluntary participation of the homeowner in a securities scheme that was and still is concealed from the homeowner.

By filing the application the homeowner is waiving his right to keep the compensation that was paid for launching the securities scheme or ask for more. And it creates an assumption of risk by the homeowner that was, is, and always will be concealed from the homeowner. All of this is “illegal” but by signing the document the homeowner has launched a legal presumption that the document and everything on it is valid. And it makes the unauthorized agent/servicer the agent of the homeowner!

The accountholder(s) [label establishes homeowner as holder of an account that exists] consent [uninformed consent] to the disclosure by my servicer [affirms “servicer” as agent] or authorized third party,* [i.e, anyone and there is no referenced asterisk at the end of the document], or any investor/guarantor [note the introduction of new parties] of my mortgage loan(s) [affirming it is a mortgage loan], of any personal and non-personal information during the mortgage assistance process and of any information about any relief I receive, to any third party that deals with my first lien [affirming lien] or subordinate lien (if applicable) mortgage loan(s), including Fannie Mae, Freddie Mac or any investor, insurer, guarantor, or servicer of my mortgage loans(s) or any companies that provide support to them, for purposes permitted by law. Personal information may include, but is not limited to: (a) my name, address, telephone number; (b) my Social Security Number; (c) my credit score; (d) my income; and (e) my payment history [affirming paymetns were due] and information about account balances and activity and (f) my tax return and the information contained therein. I/We hereby authorize the servicer to release, furnish, and provide information related to my/our account to: [BLANK FOR ANYONE TO FILL IN LATER IF THEY NEED IT]

The Florida AG fell for this hook, line, and sinker. So have most homeowner and their lawyers. Take a closer look and ask yourself why they would have such wording if they were truly sure of their status as an agent for a lender, and why they wouldn’t announce guidelines for what the “modifications” would look like if “granted” and on whose behalf they are allegedly “modifying” the transaction falsely labeled as a loan. Every correspondence offering the hope of modification is a potential trap for homeowners who frankly, in my opinion, owe nothing. They were paid money equal to at most 8 1/2% of their revenue generated by these securities scheme, everyone received every payment to which they were entitled, and then they signed a note to give it back because they thought it was a loan.

But if it was a loan then there would have been an identifiable lender who had an entry on its accounting ledgers showing payment of value for the underlying debt. No such entity exists because the investment bankers were securities brokers and security brokers are interested in trading securities. They had no intention of assuming any risk of loss on nonperforming loans, so they made sure that the transaction looked like a loan but wasn’t. They had no interest in lending and they did not lend money. Investors loaned money to the brokerage firms. And nobody complied with lending statutes because there was no lender.

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Neil F Garfield, MBA, JD, 73, is a Florida licensed trial and appellate 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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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.

But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.
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Please visit www.lendinglies.com for more information.

Filed under: foreclosure, MODIFICATION, Mortgage, sham transactions, standing | Tagged: Florida Attorney General, Florida Supreme Court, modification, motion for sanctions, New Rez, Ocwen, PHH, Power of Attorney, res judicata florida, Rule 57.105 Fla. R.C.P., SASCO, U.S. Bank | 5 Comments »

Concealed Side Agreements Should be the Target of Discovery Demands by Homeowners

Posted on September 21, 2020 by Neil Garfield

Would you entrust all your money to some thinly capitalized company who wanted total control over all your assets? No you wouldn’t and neither does any bank in an industry that virtually define security and control.

So when I received a recent email regarding a “Power of Attorney” (POA) purportedly executed by Argent/Ameriquest to another company proclaiming itself to be a “servicer” my reply was don’t believe it.

I can virtually guarantee that Argent never executed any power of attorney and that the person who was the signatory was a contract laborer whose signature was stamped or forged. The reason is that no bank or other financial institution would ever sign such a document in earnest. It is all a sham.

This is where knowledge of the industry comes into play. When dealing with assets that are in 6-7 figures, financial institutions have all sorts of protective mechanisms to make sure that the money doesn’t disappear.

Servicing contracts, for example, are very specific if they are outsourced — and nobody gets to change the terms of any mortgage loan without express authority granted in writing by an officer of the creditor company who has been authorized by a corporate resolution from the board to perform that function. It doesn’t happen any other way and that is true for all residential loans regardless of what documents are presented by the lawyers who get them from the servicer who gets them from a document preparation service which is controlled by a central repository (Black Knight) who in turn is operating under strict restrictions imposed by its contract with investment banks or their intermediaries.

So when a modification is executed making it look like the “creditor” is the servicer, without any mention, warranty or representation about the identity of some other group or company that is the creditor, the servicer is not actually doing the modification, even though correspondence is going out on the Servicer’s “letterhead.”

And the servicer cannot then claim that the loan is owned by them because (a) it isn’t, (b) they are operating under restrictions in side agreements that are concealed and (c) the servicer does not actually have any opportunity to handle funds arising from payments from the borrower or from sales of the borrower’s home. All of that is a mirage.

Banks don’t sign or accept real POAs because they are subject to revocation, expiration and in the case of homeowner transactions they are actually quite vague. That is because there are other agreements in which the grantee of a POA agrees that its name can be used but that it won’t really be doing anything.

If that were not true then servicers could have and no doubt would have made off with hundreds of billions of dollars.

This is sleight of hand. They show you one document that looks facially valid, but there are other concealed documents that make it clear that the grantee has no such powers. Every PSA reads that way too. It looks on the front end that the trustee has something to do, but in the end the trustee has nothing it can do.

The side documents to the PSA or POA are the actual servicing agreements and the actual trust agreements that are always concealed. Those are the documents homeowners should be asking for. Accepting the POA or the PSA is a trap.

*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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*CLICK HERE ORDER ADMINISTRATIVE STRATEGY, ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation.

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*CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)

*CLICK HERE TO ORDER CASE ANALYSIS

*CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR) (PDR PLUS or BASIC includes 30 minute recorded CONSULT)

*FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.

But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.
Yes you DO need a lawyer.
If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.

*Please visit www.lendinglies.com for more information.

Filed under: foreclosure | Tagged: discovery, POA, Pooling and Servicing Agreement, Power of Attorney, PSA | 1 Comment »

The Problem With those Powers of Attorney

Posted on April 22, 2020 by Neil Garfield

Just because a power of attorney appears to be facially valid doesn’t mean that it IS facially valid, nor that it is substantively valid.

Sign Petition to Change the rules to Protect Homeowners from Fraudclosure.

Powers of Attorney are part of the strategy engineered by investment banks on Wall Street. Here is the problem with the POA or LPOA strategy.

In summary it is merely part of a larger strategy that seeks to create the illusion of real claims by real parties when in fact no such claim exists and no claimant exists. the claimant never gets the proceeds of foreclosure sale.

The reason they do it is to insert an intermediary who can claim plausible deniability and that they were just following orders. It also serves the purpose of creating the illusion of a representative capacity between principal and agent.

And that serves to create the illusion that the “principal” is somehow relevant to the transactional documents with the homeowner — although they never come right out and say that (because it is untrue).

So the introduction of a Power of Attorney or Limited Power of Attorney is merely sleight of hand maneuvering to get a judge to believe that nobody would have gone to the trouble of creating and executing these documents unless there was something real going on. Unfortunately most lawyers, including those who represent homeowners in foreclosure, believe that to be true. As a result they completely miss the strategy that works in defeating such actions that are falsely labelled as foreclosures.

Here is the truth.

No POA ever gives anyone the right to claim ownership, control, administrative rights or the right to enforce any obligation of any homeowner. Instead it says it gives rights to speak for a label which may or may not be a legal entity — i.e., a “trust” which in fact is either nonexistent or “inchoate” under law.

No trust, no matter how well written, creates a valid legal trust unless and until something of value is entrusted to the named trustee to hold for the benefit of defined beneficiaries upon certain terms expressly set forth in the trust. If the trustee does not own the alleged obligation, then the trust is irrelevant to any claim or proceeding.

No named “trustee” has ever been party to a transaction in which the named trustee has ever received something of value from a seller or settlor who conveyed anything to the named trustee much less ownership of any obligation, note or mortgage from any homeowner.

The existence of a note and mortgage is generally construed to be prima facie evidence of the existence of a loan agreement. But the absence of any “lender” conduct of the counterparties to those transactional documents demonstrates conclusively that there was no meeting of the minds. This leads to the counterintuitive conclusion that the investment banks wanted the transaction to look like a loan but but were completely unwilling to be considered “lenders” for purposes of compliance with lending statutes.

The homeowner had every reasonable basis to think he/she was getting a loan — which means that there was a lender with a risk of loss and who therefore would not underwrite a transaction that was doomed to fail. Instead the real parties in interest, operating through dummy entities, were intentionally creating agreements that were extremely likely to fail. This enabled them to bet against the viability of those agreements. Therefore the less the quality of the appraisal, the loan terms, the household income etc., the more certain the investment bank could be of making money though failure of the DATA (not the debt) to perform. But since the investment banks and the homeowners had entirely different transactions in mind, there could be no meeting of the minds and there never was.

None of the counterparties or their representatives ever considered themselves to be lenders. None of them ever purchased any obligation from a homeowner and registered such purchase as an asset receivable from a homeowner nor did they make an entry on the liability side of their balance sheet as a reserve for bad debt. Clearly nobody on the other side wanted to be liable as a lender for violations of lending statutes. None of them wanted to be “lenders.” Hence the transactional documents do not represent meeting of the minds.

Therefore, every such Power of Attorney grants nothing. It might be facially valid but it is not substantively valid because the purported grantor owned nothing and therefore could grant no powers over assets that were not owned.

Note that I no longer refer to “loan documents.” Instead I refer to transactional documents. That is because I no longer believe that the transaction involving the homeowner should be referred to as a loan, even though that was what was intended by the homeowner. It wasn’t intended as a loan by anyone else who was directly or indirectly a counterparty to the transaction with the homeowner.

In nearly all cases, the original transactional documents referred to the purchase of the homeowner’s consent and rights to resell personal data. The part of the transaction requiring payments from the homeowner was merely a vehicle for reducing the consideration paid for that consent. And the only place it is obliquely albeit not directly referenced as a loan is in actions that are falsely labelled as foreclosures. In all other transactions and documents the subject is clearly the sale and trading on data, not ownership of any debt owed by anyone.

In a court of equity (i.e., foreclosure) the payment of consideration concurrent with an obligation to return that consideration should be treated as no consideration.

Hence the apparent contract is rendered unenforceable for lack of consideration. This construction does not produce any financial loss to any party who paid consideration to the homeowner. All such parties are richly rewarded for procuring the signature of the homeowner far in excess of any claim for repayment of the consideration paid for the homeowner’s consent. This construction merely restricts the profits of the players in “securitization” to a level that is fair and proper after full disclosure.

Further, in a court of equity, the payment of consideration for the consent of the homeowner to allow sale and resale of his personal financial data should have been disclosed, was legally required to be disclosed and failure of which disclosure is a basis for the court to use its inherent authority to determine the amount of the compensation to be fairly paid to homeowners.

That amount would be equal to what homeowners would have demanded in general and what investment banks would have offered as incentives in a free market with full disclosure.

Neil F Garfield, MBA, JD, 73, is a Florida licensed 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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Filed under: CORRUPTION, discovery, Discovery -Subpoena, evidence, Fabrication of documents, foreclosure, foreclosure defenses, forensic investigation, forgery, Investor, jurisdiction, legal standing, MODIFICATION, Mortgage, originator, Pleading, securities fraud, Servicer, sham transactions, standing, STATUTES, TRUST BENEFICIARIES, trustee, Unlawful Detainer | Tagged: Power of Attorney | 4 Comments »

Bank Games: “Attorney in Fact”

Posted on October 22, 2019 by Neil Garfield

The very idea of two huge Bank competitors naming each other as attorney in fact defies common sense — if they were dealing with anything real.

The use of “attorney in fact” is merely a ruse in order to bridge gaps in the facial validity of documents being used in foreclosure. It also is used to create the illusion that the grantor owned the asset over which the power of attorney was granted. In plain language it is simply a paper trail to cover up the fact that there is no money trail. People often forget that these cases are supposed to be about money.

And don’t forget that the entire purpose of using the names of large banks is to give a judge the impression that certain large banks are involved in the loan when in fact they are not.

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THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
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I recently received an email in which Deutsch was supposedly an attorney in fact for Chase and in which investigation revealed that Credit Suisse was in fact the person behind the curtain who was making gargantuan amounts of money off of derivative instruments based upon loans.

Typically the banks don’t actually execute the powers of attorney. The execution of the powers of attorney are by a robo signer who works for a servicer (or third party vendor) who poses as an attorney in fact for the bank named as attorney in fact for someone else, usually another bank. It’s what gives an false institutional flavor to the paper trail. The bank’s tolerate the use of their names on such instruments because they don’t actually own the assets and therefore they have no risk — unless somebody sues them for being a co-conspirator in a fraudulent scheme.

In discovery — the goal is to show that Deutsch did not have any administrative duties or authority over the active affairs of an existing trust that in fact owned your loan.

So it is a two-step process. First you eliminate all attributes of a “trustee” you argue that although it held the title of trustee it was not a trustee under the law and therefore had no right, title or interest in your loan. then you can ask for the actual Financial Arrangements between Deutsch and Credit Suisse (or whoever Credit Suisse was acting through)and you can ask why Deutsch was getting paid at all and what services do each provided in exchange for the payments.

But I don’t want to lead you down the rabbit hole. I don’t think you need to prove all that. All you need to prove is that neither Deutsch nor the supposed trust has any evidence of any transaction in which they acquired the debt by payment of value. If you are able to do that, you can then argue that since they did not own the debt, the attempt to foreclose cannot be an attempt to gain restitution for an unpaid debt.

If they argue that through securitization they are representing parties who paid value for the debt, you would have two responses.

The first is that Article 9 § 203 of the Uniform Commercial Code as adopted by state statutes does not permit a party to appear in a representative capacity for unknown owners of the debt. The second is that it is not enough for them to say that’s what they’re doing, they have to prove it. So you might ask in Discovery if they are appearing on behalf of an owner of the debt who paid value for it, and then ask for the identity of the owner of the debt and the details of any transaction in which the owner of the debt paid value for the debt.

The failure to prove the identity of the actual parties who paid value for the debt combined with the failure to prove representative authority to act on behalf of identified owners of the debt who paid value for the debt, can be argued as grounds for involuntary dismissal or judgment for the homeowner.

Filed under: foreclosure | Tagged: Attorney in fact, Chase, Credit Suisse, DEUTSCHE BANK, Power of Attorney | 8 Comments »

Jurisdictional Defense —- Certificate Holders vs Trust

Posted on August 28, 2019 by Neil Garfield

Litigators often miss the point that the foreclosure is brought on behalf of certificate holders who have no right, title or interest in the debt, note or mortgage — and there is no assertion, allegation or exhibit that says otherwise.

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GET FREE HELP: Just click here and submit the confidential, free, no obligation, private REGISTRATION FORM. The key to victory lies in understanding your own case.

Let us help you plan for trial and draft your foreclosure defense strategy, discovery requests and defense narrative: 954-451-1230. Ask for a Consult or check us out on www.lendinglies.com. Order a PDR BASIC to have us review and comment on your notice of TILA Rescission or similar document.

I provide advice and consultation to many people and lawyers so they can spot the key required elements of a scam — in and out of court. If you have a deal you want skimmed for red flags order the Consult and fill out the REGISTRATION FORM.

PLEASE FILL OUT AND SUBMIT OUR FREE REGISTRATION FORM

Get a Consult and TERA (Title & Encumbrances Analysis and & Report) 954-451-1230. The TERA replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).

THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
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Here is an excerpt from one of my recent drafts on this subject:

LACK OF SUBJECT MATTER JURISDICTION: the complaint attempts to state a cause of action on behalf of the certificate holders of an apparent trust, although the trust is not identified as to the jurisdiction in which it was created or the jurisdiction in which it operates.

Even assuming that such a trust exists and that it issued certificates, there is no allegation or attachment of an exhibit demonstrating that the certificates contain a conveyance enabling the holder of the certificate to enforce the alleged debt, note or mortgage upon which the complaint relies. In fact, independent investigation shows the exact opposite.

Nor is there any allegation that any money is due to the certificate holders or any allegation that the certificate holders possess the promissory note or have the right to enforce either the promissory note or the mortgage. Even if the indenture for the certificates were produced before this court, it would only show a contract for payment from a party other than the homeowner in this action. Accordingly, no justiciable controversy has been presented to the court. In the absence of an amendment curing the above defects, the complaint must be dismissed for lack of subject matter jurisdiction.

STANDING:

As to Bank of New York Mellon there is no allegation or attachment to the complaint that alleges or demonstrates an agency relationship between Bank of New York Mellon and the certificate holders, on whose behalf the complaint is allegedly filed. If Bank of New York Mellon is the trustee of an existing trust and the trust is alleged to own the debt note and mortgage along with the rights to enforce, then the agency or representative capacity of Bank of New York Mellon is with the trust, and not with the certificate holders. Based upon the allegations of the complaint and independent research defendant asserts that there is no representative capacity between Bank of New York Mellon and the certificate holders.
As to the alleged trust which has not been properly identified there is no allegation that the action is brought on behalf of the trust; but the implied allegation is that the trust is the plaintiff. The complaint states that the action is brought on behalf of the certificate holders who merely hold securities or instruments apparently issued in the name of the alleged trust. There is no allegation or exhibit attached to the complaint that would support any implication that Bank of New York Mellon possesses a power of attorney for the certificate holders or the trust. In fact, in litigation between Bank of New York Mellon and investors who have purchased such certificates, Bank of New York Mellon has denied any duty owed to the certificate holders.
As to the certificate holders, there is no allegation or exhibit demonstrating that the certificate holders have any right, title or interest to the debt, note or mortgage nor any right to enforce the debt, note or mortgage. Based upon independent research, the certificate holders do not possess any right, title or interest to the debt, note or mortgage nor any right to enforce. In fact, in Tax Court litigation the certificate holders are deemed to be holding an unsecured obligation, to wit: a promise to pay issued in the name of a trust which may simply be the fictitious name of an investment bank. There is no contractual relationship between the defendant and the certificate holders. Further, no such relationship has been alleged or implied by the complaint or anything contained in the attachments to the complaint.
As to the certificate holders, they are neither named nor identified. Yet the complaint states that the lawsuit is based upon a claim for restitution to the certificate holders. The reference to the trust may be identification of the certificates but not the certificate holders. In fact, based upon independent investigation, the holders of such certificates never received any payments from the borrower nor from any servicer who collected payments from the borrower nor from the proceeds of any foreclosure. In the case at bar. the complaint is framed to obscure the fact that the forced sale of the property will not be used to satisfy the debt, note or mortgage in whole or in part.
As to any of the parties listed in the complaint as being a plaintiff or part of the plaintiff there is no allegation or exhibit demonstrating that any of them paid value for the debt, or received a conveyance of an interest in the debt, note or mortgage from a party who has paid value for the debt as required by article 9 § 203 of the Uniform Commercial Code as adopted by state law, which states that a condition precedent to the enforcement of a mortgage is the payment of value for the debt. Hence regardless of who is identified as being the actual plaintiff none of the parties listed can demonstrate financial injury arising from nonpayment or any other act by the defendant.
In the absence of any amendment to cure the above defects, the entire complaint and exhibits must be dismissed with prejudice for lack of subject matter jurisdiction and lack of a plaintiff who has legal standing to bring a claim against the defendant.

The only thing I would add to the existing second affirmative defense is the affirmative statement that based upon independent investigation, such signatures were neither authorized nor proper, to wit: they consist of forgeries or the product of robosigned in which the signature of a person is affixed without knowledge of the contents of the instrument to which it is affixed.

In my opinion, the specificity that I have employed in the above comments not only provides a basis for dismissal, but also the foundation to support Discovery requests that might otherwise be denied, to wit: who, if anyone, ever paid money for the debt?

Filed under: burden of persuasion, burden of pleading, BURDEN OF PROOF, discovery, Discovery -Subpoena, evidence, expert witness, Fabrication of documents, foreclosure, foreclosure defenses, forensic investigation, investment banking, Investor, jurisdiction, legal standing, Pleading, prima facie case, sham transactions, standing, TRIAL OBJECTIONS, trial strategy | Tagged: Bank of New York Mellon, certificate holder, CERTIFICATES, HOLDER, Power of Attorney, subject matter jurisdiction, trust | 5 Comments »

MERS Is NOTHING — The Correct Translation of “MIN”

Posted on January 18, 2019 by Neil Garfield

Without a contract in writing executed with the formalities required for transfer of interests in real property, it is highly probable that any instrument executed on behalf of MERS means nothing without the necessity of drilling into the authority or knowledge of the signor. In fact, it might just be that the execution of an assignment might be the utterance of a false instrument for purposes of recording, which in and of itself constitutes illegal activity.

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THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
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Upon close inspection, investigation and research of hundreds of cases we have found no evidence that MERS ever enters into any contract for agency or anything else with originators who are not lenders. So we conclude that in cases where the originator is named on the note as Payee and on the Mortgage as Mortgagee or on the Deed of Trust as beneficiary, no such written contract exists and no correspondence or other communication exists between the originator and MERS.

The current consensus is that MERS is a naked nominee, something I have repeated myself. But that appears to be true only in cases where the originator is a member of MERS and has therefore entered into an agency agreement with MERS.

Entities like Broker One and American Brokers Conduit, whose name tells the whole story, are not likely to have had any contract, email, correspondence directly with MERS and are probably not party to any agreement in which the originator, if it exists at all, has agreed to let MERS be its agent and if so, under what conditions and for how long.

I think the mistake we might have all made is in accepting the implied agency contract inferred from the face of the Mortgage or Deed of Trust. In many if not most courts the assignment by MERS of a Mortgage or Beneficial interest in a Deed of Trust is seen as the act of a “disclosed” naked nominee.

First, basic law dictates that any contract in which the transfer of title to real property is involved must be written not oral, inferred or implied. Second, each state varies but all require the recording of the instrument.

Third, there was no disclosure prior to closing which violates TILA disclosure requirements. This raises possibilities of claims in a lawsuit by the homeowner or affirmative defenses of a homeowner if they are sued. As affirmative defenses they would claims of recoupment.

Nobody tells the prospective borrower that when they sign the Mortgage or Deed of Trust they will be handing over an interest in their new or existing home to an entity that might serve the interests of just anyone. But, in fact, that is what is happening which means that on the face of the Deed of Trust or Mortgage, the originating parties are violating the provisions of TILA that make table funded loans against public policy. And as any 1st year law student will tell you any contract that violates public policy is probably void.

At closing, if the borrowers are reading at all, MERS doesn’t show up until the day of closing and it is never pointed out by closing agents, originators or anyone else acting as mortgage broker or lender. Nor is the written agreement appointing MERS as “nominee” appear anywhere ever.

If the appointment of MERS is void it might void the Mortgage or Deed of Trust. Or, it might be surplusage which is more likely. That means the mention of MERS means nothing.

Hence the assignment of the Mortgage or Deed of Trust would be required to be executed by the named lender, who in turn probably could not assign the mortgage because at the time they are asked to sign such an instrument they (a) don’t exist and/or (b) don’t own the debt and probably never did. As such they would be uttering a false instrument for recording which amounts to two illegal acts probably constituting crimes.

PRACTICE NOTE: ASSIGNMENT OF A MORTGAGE WITHOUT TRANSFER OF THE DEBT IS A NULLITY. Lawyers for the foreclosure mills are often using MERS assignments as a substitute for transfer of the debt.

Filed under: burden of pleading, BURDEN OF PROOF, CORRUPTION, discovery, Discovery -Subpoena, evidence, Fabrication of documents, foreclosure, foreclosure defenses, foreclosure mill, forensic investigation, jurisdiction, legal standing, Mortgage, Motions, Pleading, Servicer, sham transactions, standing, STATUTES, Title, trustee | Tagged: agency, agent, MERS, naked nominee, Power of Attorney | 7 Comments »

Investigator Bill Paatalo: FOIA Request Reveals Servicer’s “Justification” For Fraud In Obtaining Limited Power Of Attorney From FDIC

Posted on March 4, 2018 by Neil Garfield

Posted by Bill Paatalo on Mar 4, 2018

https://bpinvestigativeagency.com/foia-request-reveals-servicers-justification-for-fraud-in-obtaining-limited-power-of-attorney-from-fdic/

See: FDIC FOIA Response – IndyMac LPOA Servicer Request 2017

This FOIA response from the FDIC dated June 29, 2017 contains a request to renew CIT Bank, N.A.’s “Limited Power of Attorney” from the FDIC regarding the failed IndyMac Bank, fsb and IndyMac Federal Bank, fsb. The “Justification” for CIT Bank’s request states as follows:

Justification

We have undertaken a thorough review of our books, records, and existing loan files for all Group 2 loans and believe we have completed assignments into the appropriate entity for both portfolios where appropriate, available, and where such a need for an assignment is known. However, in our mortgage servicing activities, we continue to be faced with legal and technical challenges, such as borrower bankruptcies and enjoined proceedings, requiring we recreate a chain of title based on factors that cannot be identified in advance without obtaining an updated title report on every loan serviced. It is cost prohibitive to obtain an updated loan level title report for each loan we are servicing, which, again, would be the only way to ensure a clean chain of title through all prior transfers.

Absent a renewed power of attorney, to avoid the risk of jeopardizing our lien position and to enable the bank to transfer title when regularly permissible we would be obliged to approach the FDIC for each instance requiring a signature on an assignment or other instrument of transfer or conveyance where, despite having exercised considerable efforts, we find at the commencement of collection or bankruptcy activities that we do not have a recorded assignment into the appropriate entity.”

(See: FDIC FOIA Response – IndyMac LPOA Servicer Request 2017 )

The document then states,

Though this document needs no further explanation, I’ll take the liberty to simplify: The only way this servicer believes it can ensure a “clean chain of title” is to obtain an updated title report for each loan it services. However, that costs too much money. CIT Bank is basically saying, “So with your permission FDIC, and knowing as much as we do, we’re going to recreate the chains of title by executing assignments and endorsing notes for all these loans to which we have no ‘clean’ chain of title as your attorney-in-fact.”

This also begs the question. If you don’t have a clean chain of title in your servicing records, and won’t invest in a title report to determine who owns the loans you service, who are you sending the money to?

From Investigator Bill Paatalo’s blog on http://www.bpinvestigativeagency.com

Private Investigator – OR PSID# 49411

Bill.bpia@gmail.com

Filed under: foreclosure | Tagged: assignments, cit bank, FDIC, investigator bill paatalo, Power of Attorney | 6 Comments »

NJ Appellate Court Decision Goes to Achilles Heel of “Securitizers”

Posted on October 30, 2017 by Neil Garfield

“In order to have standing to foreclose a mortgage, a party ‘must own or control the underlying debt.'”

New Jersey litigants need look no further. In fact, in every other state of the U.S. you will find the same decisions each quoting from several other to the same effect. Courts across the country have usually confused the issue and accepted the allegation of ownership as proof of ownership. This court answers that as well:

To establish such ownership or control, Plaintiff must present properly authenticated evidence that it is the holder of the note or a non-holder in possession with rights of the holder.”

So what is a holder, such that the party has established “ownership or control of the underlying debt.” That is the issue that has been blurred by the banks.

The banks focus on the state statutes (UCC) enabling a holder to enforce without ever establishing that the party owns or controls the underlying debt. If you think about it that is nonsense. But that one thing, more than anything else, is responsible for millions of wrongful foreclosures.

see NJ Decision On POA and MERS

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

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Here are some basic black letter rules, quoted in the NJ case, that have been followed for centuries:

A holder must possess the original note.
Transfer of possession must be “authenticated by an affidavit or certification based upon personal knowledge.”
A party relying upon power of attorney or other document must produce the authenticated original of that document.
Using the words “as attorney in fact” means nothing unless the party is able to produce a witness who, in their own personal knowledge, knows and states that the POA is in writing and has not been revoked.
That witness must be able to lay the factual foundation and authentication for introduction of the Power of Attorney or any other such document.
Without such foundation and authentication, any testimony or documents proffered by virtue of the POA cannot be admitted into evidence and for purposes of the case then, such statements or documents do not exist.
A party who claims a legal relationship with another party and who relies upon it for proffering evidence must provide evidence of the legal relationship.
A Power of Attorney must be in writing, duly signed and acknowledged as set forth in state statutes. Oral Powers of Attorney cannot be used to circumvent the requirement that interests in real property (including mortgages) must be in writing.
A party seeking to enforce a note must be able to establish, though competent evidence, the location and the previous locations of the note in order to establish possession and the right to enforce, respectively.
Certifications must be based upon personal knowledge and not general familiarity.
If testimony is offered based upon a “review” of records, the records must be present or the witness must identify those records and how the witness acquired personal knowledge of their content.
Assignments of mortgage must be authenticated by a person who has personal knowledge of the assignment (and the circumstances in which the assignment occurred). Otherwise the assignment is hearsay and must be excluded from evidence unless otherwise admitted for different reasons. Hearsay statements in assignments cannot be admitted into evidence and for purposes of the case then, such statements do not exist.
The fact that an assignment or other document exists as an original or a copy does not mean that what is written on it can be admitted into evidence. But without a proper objection, the document can be admitted into evidence as proof of the matters asserted therein.
A document signed by an agent or “nominee” like MERS after the demise of the principal is void because the power of attorney expires upon expiration of the principal. If the originator no longer exists, MERS is not authorized to act on behalf of the originator.

Filed under: CASES, discovery, evidence, foreclosure, Mortgage, Motions, originator, STATUTES | Tagged: MERS, mortgages, notes, personal knowledge, Power of Attorney | 7 Comments »

Self Serving Fabrications: Watch for “Attorney in Fact”

Posted on September 28, 2016 by Neil Garfield

In short, the proffer of a document signed not by the grantor or assignor but by a person with limited authority and no knowledge, on behalf of a company claiming to be attorney in fact is an empty self-serving document that provides escape hatches in the event a court actually looks at the document. It is as empty as the Trusts themselves that never operated nor did they purchase any loans.

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If you had a promissory note that was payable to someone else, you would need to get it endorsed by the Payee to yourself in order to negotiate it. No bank, large or small, would accept the note as collateral for a loan without several conditions being satisfied:

The maker of the note would be required to verify that the debt and the fact that it is not in dispute or default. This is standard practice in the banking industry.
The Payee on the note would be required to endorse it without qualification to you. Like a check, in which you endorse it over to someone else, you would say “Pay to the order of John Smith.”
The bank would need to see and probably keep the original promissory note in its vault.
The credit-worthiness of the maker would be verified by the bank.
Your credit worthiness would be verified by the bank.

Now imagine that instead of an endorsement from the payee on the note, you instead presented the bank with an endorsement signed by you as attorney in fact for the payee. So if the note was payable to John Jones, you are asking the bank to accept your own signature instead of John Jones because you are the authorized as an agent of John Jones. No bank would accept such an endorsement without the above-stated requirements PLUS the following:

An explanation as to why John Jones didn’t execute the endorsement himself. So in plain language, why did John Jones need an agent to endorse the note or perform anything else in relation to the note? These are the rules of the road in the banking and lending industry. The transaction must be, beyond all reasonable doubt, completely credible. If the bank sniffs trouble, they will not lend you money using the note as collateral. Why should they?
A properly executed Power of Attorney naming you as attorney in fact (i.e., agent for John Jones).
If John Jones is actually a legal entity like a corporation or trust, then it would need a resolution from the Board of Directors or parties to the Trust appointing you as attorney in fact with specific powers to that completely cover the proposed authority to endorse the promissory note..
Verification from the John Jones Corporation that the Power of Attorney is still in full force and effect.

My point is that we should apply the same rules to the banks as they apply to themselves. If they wouldn’t accept the power of attorney or they were not satisfied that the attorney in fact was really authorized and they were not convinced that the loan or note or mortgage was actually owned by any of the parties in the paper chain, why should they not be required to conform to the same rules of the road as standard industry practices which are in reality nothing more than commons sense?

What we are seeing in thousands of cases, is the use of so-called Powers of Attorney that in fact are self serving fabrications, in which Chase (for example) is endorsing the note to itself as assignee on behalf of WAMU (for example) as attorney in fact. A close examination shows that this is a “Chase endorses to Chase” situation without any actual transaction and nothing else. There is no Power of Attorney attached to the endorsement and the later fabrication of authority from the FDIC or WAMU serves no purpose on loans that had already been sold by WAMU and no effect on endorsements purportedly executed before the “Power of Attorney” was executed. There is no corporate resolution appointing Chase. The document is worthless. I recently had a case where Chase was not involved but US Bank as the supposed Plaintiff relied upon a Power of Attorney executed by Chase.

This is a game to the banks and real life to everyone else. My experience is that when such documents are challenged, the “bank” generally loses. In two cases involving US Bank and Chase, the “Plaintiff” produced at trial a Power of Attorney from Chase. And there were other documents where the party supposedly assigning, endorsing etc. were executed by a person who had no such authority, with no corporate resolution and no other evidence that would tend to show the document was trustworthy. We won both cases and the Judge in each case tore apart the case represented by the false Plaintiff, US Bank, “as trustee.”

The devil is in the details — but so is victory in the courtroom.

Filed under: foreclosure | Tagged: Attorney in fact, Chase, foreclosure defense, foreclosure offense, fraud, Power of Attorney, securitization, US BANK, WAMU | 7 Comments »

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.

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Filed under: foreclosure | Tagged: beneficiary, conflict of interest, DEED OF TRUST, law firm, non-judicial, Power of Attorney, Substitution of Trustee, validation, verification | 5 Comments »

The Devil Is In the Details: Summary of Issues

Posted on December 27, 2013 by Neil Garfield

Editor’s note: in preparing a complex motion for the court in several related cases I ended up writing the following which I would like to share with my readers. As you can see, the issues that were once thought to be simple and susceptible to rocket docket determination are in fact complex civil cases involving issues that are anything but simple.

This is a guide and general information. DO NOT USE THIS IF YOU ARE NOT A LICENSED ATTORNEY. THESE ISSUES ARE BOTH PROCEDURALLY AND SUBSTANTIVELY ABOVE THE AVERAGE KNOWLEDGE OF A LAYMAN. CONSULT WITH AN ATTORNEY LICENSED IN THE GEOGRAPHICAL AREA IN WHICH THE PROPERTY IS LOCATED.

If you are seeking litigation support or referrals to attorneys or representation please call 520-405-1688.

SUMMARY OF ISSUES TO BE CONSIDERED

1)   Whether a self proclaimed or actual Trustee for a REMIC Trust is empowered to bring a foreclosure action or any action to enforce the note and mortgage contrary to the terms of the Trust document — i.e., the Pooling and Servicing Agreement (PSA) — which New York and Delaware law declare to be actions that are VOID not VOIDABLE; specifically if the Trust document names a different trustee or empowers only the servicer to bring enforcement actions against borrowers.

2)   Whether a Trustee or Servicer may initiate actions or take legal positions that are contrary to the interests of the Trust Beneficiaries — in this case creating a liability for the Trust Beneficiaries for receipt of overpayments that are not credited to the account receivable from the Defendant Borrowers by their agents (the servicer and the alleged Trustee) and the creation of liability to LaSalle Bank or the Trust by virtue of questionable changes in Trustees.

3)   Whether US Bank is the Plaintiff or should be allowed to claim that it is the Trustee for the Plaintiff Trust. Without Amendment to the Complaint, US Bank seeks to be substituted as Plaintiff in lieu of Bank of America, as successor by merger with LaSalle Bank, trustee for the Plaintiff Trust according to the Trust Document (the Pooling and Servicing Agreement) Section 8.09.

a)    A sub-issue to this is whether Bank of America is actually is the successor by merger to LaSalle Bank or if CitiMortgage is the successor to LaSalle Bank, as Trustee of the Plaintiff Trust — there being conflicting submissions on the SEC.gov website on which it appears that CitiMortgage is the actual party with ownership of ABN AMRO and therefore LaSalle Bank its subsidiary.

b)   In addition, whether opposing counsel, who claims to represent U.S. Bank may be deemed attorney for the Trust if U.S. Bank is not the Trustee for the Trust.

i)     Whether opposing counsel’s interests are adverse to its purported client or the Trust or the Trust beneficiaries, particularly with respect to their recent push for turnover of rents despite full payment to creditors through non stop servicer advances.

4)   Whether any Trustee for the Trust can bring any enforcement action for the debt including foreclosure, assignment of rents or any other relief.

5)   Whether the documentation of a loan at the base of the tree of the assignments and transfers refers to any actual transaction in which the Payee on the note and the Mortgagee on the Mortgage.

a)    Or, as is alleged by Defendants, if the actual transaction occurred when a wire transfer was received by the closing agent at the loan closing with Defendant Borrowers from an entity that was a stranger to the documentation executed by Defendant Borrowers.

b)   Whether the debt arose by virtue of the receipt of money from a creditor or if it arose by execution of documentation, or both, resulting in double liability for a single loan and double payment.

6)   Whether the assignment of mortgage is void on its face as a fabrication because it refers to an event that occurred long after the date shown on the assignment.

7)   Whether the non-stop servicer advances in all of the cases involving these Defendants and U.S. Bank negates the default or the allegation of default by the Trust beneficiaries, the Trust or the Trustee, regardless of the identity of the Trustee.

a)    Whether a DEFAULT exists or ever existed where non stop servicer advances have been paid in full.

b)   Whether the creditor, under the debt obligation of the Defendant borrowers can be allowed to receive more than the amount due as principal , interest and expenses. In this case borrower payments, non stop servicer advances, insurance, credit default swap proceeds and other payments by co-obligors who paid without subrogation or expectation of receiving refunds from the Trust Beneficiaries.

c)    Whether a new debt arises by operation of law as a result of receipt of third party defendants in which a claim might be made by the party who advanced payment to the creditor, resulting in a decrease the account receivable and a corresponding decrease in the borrower’s account (loan) payable.

i)     Whether the new debt is secured by the recorded mortgage that the Plaintiff relies upon without the borrower executing a security instrument in which the real property is pledged as collateral for the advances by third parties.

8)   Whether turnover of rents can relate back to the original default, or default letter, effectively creating a final judgment for damages before evidence is in the court record.

9)   Whether the requirements of a demand letter to Defendants for turnover of rents can be waived by the trial Court, contrary to Florida Statutes.

a)    Whether equity demands that the turnover demand be denied in view of the fact that the actual creditors — the Trust Beneficiaries of the alleged Trust were paid in full up to and including the present time.

b)   Whether, as argued by opposing counsel, the notice of default letter sent to Defendant Borrowers is an acceptable substitute to a demand letter for turnover of the rents if the letter did not mention turnover of rents.

c)    Whether the notice of default letter and acceleration was valid or accurate in view of the servicer non-stop advances and receipt of other third party payments reducing the account receivable of the Trust beneficiaries (creditors).

i)     Whether there was a difference between the account status shown by the Servicer (chase and now SPS) and the account status actually shown by the creditor — the Trust Beneficiaries who were clearly paid in full.

10)         Whether the Plaintiff Trust waived the DUE ON SALE provision in the alleged Mortgage.

a)    Whether the Plaintiff can rely upon the due on sale provision in the mortgage to allege default without amendment to their pleadings.

11)         Whether sanctions should apply against opposing counsel for failure to disclose essential facts relating to the security of the alleged creditor.

Whether this (these cases) case should be treated off the “rocket docket” for foreclosures and transferred to general civil litigation for complex issues

Filed under: CASES, CORRUPTION, Eviction, evidence, expert witness, Fannie MAe, foreclosure, foreclosure mill, GARFIELD KELLEY AND WHITE, investment banking, Investor, MODIFICATION, Mortgage, Motions, Pleading, securities fraud, Servicer, TRUST BENEFICIARIES | Tagged: ABN AMRO, acquisition, authority to represent, Bank of America, demand letter, foreclosure, foreclosure defense issues, LaSalle bank, merger, modification, notice of acelleration, Notice of Default, Power of Attorney, reinstatement, rocket docket, sec.gov, servicer, sucessor by merger, trustee, US BANK | 3 Comments »

When Should County Recorders Refuse to Record Documents?

Posted on November 8, 2012 by Neil Garfield

This question cuts both ways since homeowners have filed or tried to file various documents that cloud the title until a dispute is resolved. But the focus of today’s conference is on the filings by “new” beneficiaries and “new”substituted trustees” and deeds on foreclosures executed by “authorized signors” for the “Substituted trustees.”

County Recorders are clearly upset about the status of title chains in their records as a result of the dubious documents filed by banks, servicers and their attorneys and trustees.

Those include people like Helen Purcel, County recorder for Maricopa County in Arizona who stated publicly and directly that the MERS documentation alone raises serious questions about the clarity of title in hundreds of thousands of title chains. She says she doesn’t have the resources from the state to do a proper investigation and offers by private groups to fund or actually perform the investigation have been rebuffed. But she stands by her comments that title is in doubt, which creates uncertainty in the marketplace for anyone purchasing or refinancing a home.

The real question is whether the documents electronically filed in Maricopa county from “trusted sources” can be trusted at all. Many documents have been robo-signed, surrogate signed or signed without any apparent authorization. An “authorized signor” is a term used in banking to allow other people to sign checks and perform other functions on bank accounts but does not convey ownership of the account. Similarly “authorized signors” therefore by definition do not have ownership or authority to sign for an owner unless there is proper paperwork to back it up or it is specifically allowed by statutes.

The authorized paperwork that SHOULD accompany a valid document for recording should meet the same standards that the banks apply when accepting documents from consumers or borrowers. If you are signing on behalf of a corporate entity, it should show that the proper corporate resolution has been been passed by the proper people specifically allowing the signor to execute the document on behalf of the entity — whether it is a corporate entity, trust or anything else.

Many of the assignments or substitutions of trustee come to the recorder without any evidence of the actual authority to execute such a document. They specifically refer to powers of attorney or authorizations or prior assignments that are not in the title record and not offered with the document offered to be recorded.

So for example if the substitution of trustee is signed by John Jones, authorized signor for ABC Corp., as attorney in fact for DEF Corp, as assignor from GHI Corp., as trustee for the the holders of mortgage backed securities, there are several open questions raised by the document itself.

A Bank would require that John Jones produce signed resolutions from the ABC Corp and probably require the presence of the the signers and proof that the ABC Corp exists and that the those who executed the resolution had the power to do so. Yet the Banks turn around and submit such documents without the authority being recited or shown or attached to the “Substitution of trustee” and without any affidavit from anyone saying that the resolution is correct.

A Bank would require that that if ABC Corp not only authorized John Jones to sign but would demand that the power of attorney from DEF Corp be produced and verified. And the Bank would most likely have the signatures on file of those people who maintain accounts as “owners” so they could be sure that they were getting the right instructions from the right person. And they still might demand, despite the presence of a notary stamp, that the persons produce identification of some sort. But this doesn’t stop them from recording documents without any of those assurances when it suits them.

A Bank would require that an assignment be recorded and that it be verified and authorized just as stated above along with an affidavit from appropriate people that the assignment took place and might even require proof of money exchanging hands. Otherwise they are just taking a piece of paper that is supported by consideration. But banks record such documents as “trusted sources” all the time.

All that said, the county recorder is put on the spot. If you go to the extreme, which is what the banks are saying, then even if the recorder was told directly by the person filing the bogus document that there was no authority, there were no resolutions, there was no power of attorney executed or authorized by whoever executed one, and that there was no trust that was funded or owned anything, the county recorder has no powers to reject the document for recording. But the same recorders are rejecting similar documents under one theory or another sent down from the County Attorney office — if they come from borrowers.

The County recorder is administrative agency and as such should provide some administrative remedies to at least hear the issues that might be presented by the borrower when challenging the previous recording or the attempted recording of a bogus or dubious document. The recorder is bound by statute by obviously there is lots of room for interpretation when it comes to filings by borrowers rather than the alleged “pretender lenders.”

In the end, the County recorder had best be prepared to be called into court and testify as to the integrity of the county recording system and whether they have an opinion as to whether title has been corrupted in their county and specifically whether a document should have been recorded after it is shown that the proper authority and ownership was not already in the title record and not presented at time of recording of a single document.

Either way they go, they are likely to be presented with a lawsuit from one side or the other. If they start looking at documents from all sources and asking questions about the authority of a person to sign a document, they will face the wrath of banks who are trying to slip by on theories that go against every standard in their own industry.

Some recorders have done the studies and all of them have concluded that large percentages of the filings were bogus or questionable. This will lead to future title litigation that might well be endless considering the number of transactions that supposedly occurred, albeit without any consideration “for value received”.

The deed on foreclosure executed after a supposed auction is often signed and submitted by someone without any knowledge of the transaction at all. The person is frequently a hired contractor who is there to say they have a bid from the “creditor” of X number of dollars, that the bid is accepted and the deed issues without payment of any actual money because it is presumed that the bidder was the authorized creditor, when in fact in most cases they are not.

This not only puts in doubt most of the foreclosure “sales” and future title transfers but also the eviction actions that often follows. The referee in all this is supposedly the county recorders’ offices. But they are genuinely confused about their powers and obligations in this unprecedented situation.

Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud | Tagged: assignment, authorized signor, county recorders, Power of Attorney, recording of documents, subsitution of trustee | 14 Comments »

Semantics: What a difference a word makes — Creditor — Trustee

Posted on January 13, 2010 by Neil Garfield

Using the voluminous amount of feedback to Livinglies.wordpress.com, some observations about the words you use in litigation and in your correspondence, QWR and DVL might well be of some assistance.

CREDITOR: It seems that using the word creditor has much more power than lender, pretender lender or even holder in due course. I’ve been told that the word “creditor” conveys a relationship of business vs. consumer that is a lot closer to the truth than “lender” which implies that the party who initiated the foreclosure was a bank and that the homeowner is trying to get out of a legitimate debt. A creditor is one who has advanced money, goods or services with the intention of getting it back through the payment of money, the delivery of services or goods or the return of what was extended by the creditor. The simple statement is that the Plaintiff (in judicial states) or party initiating foreclosure proceedings is NOT the creditor and that the obligation you signed for calls for you to pay money to the creditor, not the opposing party in your foreclosure. The party you are up against has advanced no funds, goods or services. Thus they are not the creditor. Ask them in open court if you need to do so. Yet they want the court to pretend that they are a creditor anyway — or phrased another way, they want to assert that they have the right to collect on the obligation and foreclose on the home even though they are NOT the creditor. If their position is that they are foreclosing on behalf of the creditor, your answer would be that they must then disclose the creditor and name them as nominal plaintiffs, and show how they, as non-creditors, have the right to sue on behalf of the creditor. You must be given the chance to inquire in discovery whether this revelation is in fact the creditor and if so, you must be given a chance under Federal Law to attempt modification or mediation with the real decision-maker — i.e., the creditor. BEWARE: Attorney representations in or out of court are not evidence and should be objected to, pointing out that such representations raise an issue of fact that you deny and therefore you have a right to at least inquire through discovery the truth or falsehood of those representations.
SPV MBS POOL: There are at least two pools of assets in every securitization scheme involving home mortgages — the aggregator’s pool which is made up of multiple assets usually all home mortgages, and the SPV or MBS Pool which receives an assignment from the aggregator. Don’t use the word “TRUST” to describe the second pool (the one that goes into the pool of assets that is then fractionally sold to buyers of certificates in which the ownership is conveyed in fractional interests and the promise to pay comes from the SPV in the form of a note or bond). Since the SPV or MBS pool is part of a REMIC transaction, it may be fairly assumed and argued that the equitable and legal owners of the assets in the pool are actually the certificate holders. In addition, the holders of a certificate are not described as beneficiaries, which would be the words associated with a trust. Since the SPV pool is a REMIC (Real Estate Mortgage Investment Conduit)under the Internal Revenue Code the reference to the existence of a trust is a reference in name only. In fact, there is no trust and there are no beneficiaries. The owners of the pool are quite clearly the certificate holders of mortgage backed securities (MBS). The pool is owned by those owners of the certificates not by some non-existent trust.
AGENT With Limited Power of Attorney: Examination of the enabling documents in their totality clearly shows that the party named as “Trustee” is not a trustee and has no trustee powers. This was done intentionally by the investment banks so that they could avoid the implication of a fiduciary duty of a Trustee, which would have included telling the investors the truth about the crap they were buying. So you might want to say that (a) there is no trust, there is just a pool owned by investors. (b) You might want to say the Conduit status of the SPV (Special Purpose Vehicle) mandates that no actual transactions are occurring in the name of the REMIC (SPV) or else it loses its “tax-exempt” status, something that would be contrary to the interests of the investors. (c) you might want to say that therefore there is nothing in any trust, so even if it DID exist, it has no assets. And (d) you might want to say that the party designated as “TRUSTEE is in reality merely an agent for the certificate holders and that the indentures or enabling documents simply appoint the Agent to act with limited power of attorney under certain circumstances. Remember that neither the “TRUSTEE” nor the “TRUST” ever physically receives the notes, mortgages or assignment or any other pieces of paper except for the mortgage backed security. The paper is held elsewhere, which is where the investment banks actually had the opportunity to trade and bet on those securities, since they were the ones (directly or indirectly) who always controlled the possession and distribution of the actual notes, mortgages, assignments or other paper documents.

More to come

Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud | Tagged: agent, conduit, consumer, creditor, holder in due course, lender, MBS, pool, Power of Attorney, pretender lender, REMIC, SPV, trust, trustee | 6 Comments »

How to Search for the Trust or SPV Claiming Your Loan to Be Part of the SPV Pool

Posted on December 5, 2009 by Neil Garfield

Thank You ABBY!

This post is from Abby. You can catch her email in comments where she originally posted. Just one word of caution: Just because the Trustee or officer of the SPV pool claims to have your loan doesn’t mean they really do. In fact they may only have a spreadsheet with no documentation, no original notes, no copies of the note, no copy of the deed, deed of trust or mortgage deed. They may have something they called an allonge and are treating it as though it was an assignment. The attempted transfer will almost ALWAYS violate the terms of the the SPV mortgage backed bonds and almost certainly violate the terms of the pooling and service agreement which is the document governing the pools created by aggregators before they were “sold” to the SPV. For one thing these documents usually state that the execution of the transfer documentation must be in recordable form and some of them even say they should be recorded. There are many other terms as well that conflict with each other and conflict with the actions of the intermediary participants in the securitization chain.

This is why this research is so important — but you should not be doing it to prove your case. You should be doing it to make them justify their position.

By delving deep in discovery or seeking an order compelling them to answer the QWR or DVL, they will eventually anger the judge by their stonewalling. Judicial anger is behind some of the most favorable decisions on record so far. The Judge gets there by recognizing that he/she has been duped and now the truth is coming out that these foreclosing parties are illegiitimate: they are not creditors, they are not lenders, they are not beneficiaries. They are simply interlopers seeking a windfall leaving the homeowners and the investor who advanced the funds in the dark. Shine the light and they scatter like roaches in the middle of the night.

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WANT TO SEARCH FOR THE TRUST YOUR LOAN WENT INTO??

Some steps below to use the SEC website to locate your loan and the trust it is in (mortgage pool).

This example uses WAMU (Washington Mutual).
Typically, Chase had JPMAC (JP Morgan Acquisition Corp) as the name of trusts.

http://www.sec.gov/

1. click on above link
2. if you have not yet created a free account and it asks you for login info…create the account
3. click on ’search’ in upper right corner
4. in the blue area, type in WAMU in the ‘company name’ field
5. click find companies at bottom
6. this brings up all the WAMU filings
7. search around for one that is the year you got your WAMU refi
8. it will be tedious, but you have to click on each CIK number (in red) over on left, and that will take you to a whole big list of more filings for that particular trust
9. go through and click on any ‘fwp’….read/scan to see if it lists any loan numbers….some will….check to see if your loan number is in it.
10. when you click on an ‘fwp’, which means free writing prospectus, you will see even more files…try to avoid looking at the ones that have .txt ending (the other, usually an html file, will have any infor you may need.

Note: you may want to also search around in years just prior to or just after your loan was done.

Some of these deals were set up even prior to you getting your loan.

Again, another place you may find the trust name is on your recorded docs, in MERS or on a Power of Attorney filed at the county recorder by the Securities trustee in your local county (if required by law).

Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud | Tagged: AGGREGATOR, allonge, assignment, Chase, CIK number, COK, DEED OF TRUST, fwp, JP Morgan Acquisition Corp, JPMAC, MERS, mortgage backed bonds, officer, original note, pool, pooling and service agreement, Power of Attorney, PSA, SEC, SPV, trust, trustee, WAMU, Washington Mutual | 20 Comments »

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I provide advice and consultation to many people and lawyers so they can spot the key required elements of a scam — in and out of court. If you have a deal you want skimmed for red flags order the Consult and fill out the REGISTRATION FORM.

PLEASE FILL OUT AND SUBMIT OUR FREE REGISTRATION FORM

Get a Consult and TERA (Title & Encumbrances Analysis and & Report) 954-451-1230. The TERA replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).

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

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