If it is their case, then THEY must prove it

Posted on October 17, 2018 by Neil Garfield

As I have said since 2006, the burden of proof should not shift to homeowners until the pretenders have made their case. To get rid of legal presumptions homeowners need only prove a credible narrative (like probable cause) that the documents are fabricated or falsely executed. After that, what is the harm of making the pretenders actually prove their case?

The lawyers who flee from foreclosure defense cases are missing out on a golden opportunity. If this were a golf game the ball would have left the tee in a perfect shot. The fundamental aspect is that nobody can actually prove a claim on a debt, note or mortgage by proving actual facts because those facts are not present.

Defense lawyers spend too much time worrying that maybe the facts will show that they have filed a frivolous defense and not enough time researching objections to claims and proof of claim. It’s time to roll back the burden of proof where it belongs.

It is not the fault of the homeowner that the debt and the owner of the debt is lost. Homeowners had nothing to do with it.

The Franklin decision (see below) from 2016 is an exquisite exposition of the law as it was written, as it is understood by jurists and as it is opposed by Wall Street banks whose very survival is completely dependent upon maintenance of lies that were propagated long before the 2008 crash.

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

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. A few hundred dollars well spent is worth a lifetime of financial ruin.

PLEASE FILL OUT AND SUBMIT OUR FREE REGISTRATION FORM WITHOUT ANY OBLIGATION. OUR PRIVACY POLICY IS THAT WE DON’T USE THE FORM EXCEPT TO SPEAK WITH YOU OR PERFORM WORK FOR YOU. THE INFORMATION ON THE FORMS ARE NOT SOLD NOR LICENSED IN ANY MANNER, SHAPE OR FORM. NO EXCEPTIONS.

Get a Consult and TERA (Title & Encumbrances Analysis and & Report) 202-838-6345 or 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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see franklin-appellate-decision-tirelli-2016

The 2016 Franklin case is, point by point, an independent corroboration of what I have been saying for years about presumptions and burden of proof. Unprepared lawyers for homeowners are the greatest contributors to bad law.
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The documents carry a presumption of validity. The signatures carry a presumption of authenticity. Both presumptions are weak and do NOT provide cover for the proponent of the document to step over a legitimate challenge. The homeowner does not need to prove the invalidity or inauthenticity such that judgment would be in favor of the homeowner BECAUSE the homeowner is not proponent of the document or the signatures.
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It is here that that lawyers for the nonexistent foreclosing party step over the real issue only because foreclosure defense lawyers don’t stop them. The presumption stands if not contested. But if it is contested, then the homeowner must only show enough evidence of inconsistency such that a court COULD reasonably infer that the document might have been fabricated and that the signatures were without authority.
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At that point nothing is decided. AND the burden of proof falls on the proponent of the document to prove its validity and authenticity step by step — something that neither the mill lawyers nor their “clients” could ever do.
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Bottom Line: Homeowners do not need to prove “their case.” They only need to prove enough to cast doubt on validity and authenticity that the would-be foreclosers must prove their case without the use of legal presumptions presumptions. In the end it is their case not the homeowner’s case. When you bring a case to court, it is your case to prove — not the other guy’s case to disprove. Remember that legal presumptions are strictly for judicial economy and not to actually prove a contested fact, especially where there is a credible narrative that is opposite to the presumed facts.
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I think judges around the country are now ready to hear and accept this message. Lawyers who are fleeing retainers to represent homeowners are missing the boat to both fame and fortune.

Filed under: foreclosure | Tagged: , , , , , | 7 Comments »

Banks Throw $20 Billion at Securitized Debt Market to Avoid Markdowns

Posted on April 18, 2013 by Neil Garfield

Bloomberg Reports that the big banks are borrowing big time money using money market funds as source money for financing repurchase agreements. This stirs the obvious conclusion that the mortgage bonds — and hence the claim on underlying loans — are in constant movement making the proof problems in foreclosure proceedings difficult at best.

The underlying theme is that there is tremendous pressure to make good on the mortgage bonds that never actually existed issued by REMIC trusts that were never actually funded who made claims on loans that never actually existed. All that is why I say you should argue away from the presumption and keep the burden of persuasion or burden of proof on the party who has exclusive access to the actual proof of payment and proof of loss.

The banks are still claiming assets on their balance sheet that are either without value of any kind or something close to zero. If I was wrong about this, the banks would be flooding all the courts with proof of payment (canceled check, wire transfer receipt etc) and the contest with borrowers would be over.

Instead they argue for the presumption that attaches to the “holder” and mislead the court into thinking that possession is the same as being the holder. It isn’t. The holder is someone who acquired the instrument “for value.” By denying the holder status and contesting whether there was any consideration for the endorsement or assignment of the loan, you are putting them in position to force them to come clean and show that there was NO consideration, NO money paid, and hence they are not holders in any sense of the word.

If you research the law in your state you will find that the prima facie case required from the would-be forecloser depends factually upon whether they are an injured party. If they didn’t pay anything for the origination or transfer of the loan, they can’t be an injured party. They must also show that their injury stems from the breach of the borrower and the breach of some intermediary. That is where the repurchase agreements and financing for all those purchases comes into the picture.

So far the banks have been largely successful in using bootstrap reasoning that a possessor is a holder and a holder is therefore a holder in due course by operation of the presumptions arising from the Uniform Commercial Code. And since normally a presumption shifts the burden to the other side (the borrower in this case) to come up with legally admissible evidence that the facts do not support the presumption, the borrower or borrower’s counsel sits there in the courtroom stumped.

Further research, however, will show that if the facts needed to prove the presumption to be unsupported by facts are in the sole care, custody and control of the claiming party, you are entitled to conduct discovery and that means they must come up with the actual cancelled check, wire transfer receipt, wire transfer instructions etc. The would-be forecloser cannot block discovery by asserting the presumption arising from their own self-serving allegation of holder status.

In this case the presumption arising from the allegation that the would-be forecloser is a “holder” is defeated by mere denial because it is ONLY the would-be forecloser that has access to the the actual proof of payment and proof of loss. I remind you again that the debt is not the note and the note is not the mortgage. They are all separate issues.

This is becoming painfully obvious as reports are coming in from across the country indicating that courts at all levels and legislatures are under intense pressure to find a loophole through which the mega banks can escape the truth, to wit: that they are holding worthless paper and that the only transaction that ever actually occurred was the one between the investors and the borrowers without either  of those parties in interest being aware of the slight of hand pulled by the banks. The banks diverted the money invested by pension funds from the REMIC trusts into their own pockets. The banks diverted the documents that would have solidified the interest of the investors in those loans to themselves.

And let there be no mistake that the banks planned the whole thing out ahead of time. The only reason why MERS and other private label title databases were necessary was to hide the fact that the banks were trading the investments made by pension funds as if they were their own. Otherwise there would have been no reason to have anyone’s name on the note or mortgage other than the asset pool designated as a REMIC trust.

These exotic instruments are being tested by the marketplace and they are failing miserably. So the banks are throwing tens of billions of dollars to refinance the repurchase of the derivatives that were worthless in the first place. It’s worth it to them to retain the trillions of dollars they are claiming as assets that are unsupported by any actual monetary transactions. AND THAT is why in the final analysis, after they have beaten you to a pulp in court, if you are still standing, you get some amazing offers of settlement that actually are still fractions of a cent on the dollar.

Banking giants lead repo funding of securitized debt
http://www.housingwire.com/fastnews/2013/04/16/banking-giants-lead-repo-funding-securitized-debt

Filed under: CDO, CORRUPTION, Eviction, foreclosure, GARFIELD GWALTNEY KELLEY AND WHITE, GTC | Honor, Investor, Mortgage, securities fraud | Tagged: , , , , , , , , , , , , | 73 Comments »

Courts Tripping Over Themselves Ignoring the Obvious

Posted on April 17, 2013 by Neil Garfield
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At the risk of lecturing judges on the law allow me to point out that the transfer of an apparently “negotiable instrument” is not a transaction that can be interpreted or enforced under the Uniform Commercial Code unless it is accompanied by payment or exchange of value, which is to say that there must be money involved. A loan that was originated without any money from the payee under the note or the secured party under the mortgage is not to be interpreted by reference to the Uniform Commercial Code because of the lack of consideration.

That leaves the pooling and servicing agreement. Employing and servicing agreement specifies the precise manner in which loans can be transferred into the asset pool and one of the things that is not allowed is an endorsement in blank. This provides no protection to the investors which is why the provisions in the pooling and servicing agreement require that the endorsement be in recordable form and in order to the benefit of the investors or the asset pool.

The problem is that the judges are searching for a way to rule in favor of the banks instead of searching for a way to simply rule on the admissibility and credibility of evidence.  It often happens that the attorney for the borrower argues that the Uniform Commercial Code does not allow recipients of a transfer of loan documents,  which then leaves the court to say that the transfer occurred pursuant to the terms of the pooling and servicing agreement. Or some courts seeing that the transfer was not performed in accordance with the terms of the pooling and servicing agreement applied the Uniform Commercial Code even though there is a material dispute of fact as to whether or not any consideration was involved in the transfer of the loan.

If the loan was transferred into the pool pursuant to the pooling and servicing agreement then why were the other terms of the pooling and servicing agreement ignored? I have yet to see any pooling and servicing agreement that provided for an endorsement in blank. Such a thing could not possibly exist since the investors thought that they were buying mortgage-backed securities. The pooling and servicing agreement clearly specifies the method of transfer and clearly does not include an endorsement in blank as an approved method.

The object of the investors was to take ownership of the loans by way of the mortgage-backed securities and distribute the risk and income proportionately to their investments. What the banks did was instead of putting the investors first and inserting the name of the asset pool on the loan origination documents or the assignment executed in the manner provided by the pooling and servicing agreement, they used an exotic and completely unnecessary chain of title for what was essentially a very simple transaction. By having the loan originated by the nominee of a nominee acting under power of attorney they created the illusion that the “holder” of the paper was presumptively the creditor. This is the exact opposite of what the pooling and servicing agreement required; had it been known that they were going to operate this way they never would have received their AAA rating, their insurance, or any credit default swaps. It is clear that they inserted themselves or their nominees as the apparent owner of the debt even know the nominee did not make the loan. It is equally apparent that they inserted themselves or their nominee as the apparent owner of the debt even though they paid nothing for the assignment or transfer of the loan.

If the investment banks had intended to operate properly and legally they would have had no need for any nominees much less the parallel title tracking systems including MERS  and all the other entities that pretend to have business interests even know they were so thinly capitalized and covered by layers of entities whose corporate veils need to be pierced. They would simply have placed the name of the asset pool on the mortgage and note making reference to an actual transaction involving actual money that changed hands between the lender and the borrower.

These nominee entities were planned far in advance as “bankruptcy remote” vehicles through which the bankers could channel nonexistent transactions. By creating the illusion that they were the owners of the debt it appeared as though the note and mortgage were valid. But they could never have been the owners of the debt since it was the investors who actually funded the mortgage. No document exists anywhere in which the investors or the asset pool assigned the ownership rights to the loans to the investment banks or any of their affiliates or nominees.

The courts are not clogged because of the volume of litigation. The volume of litigation is bottlenecked in the courts because the courts refused to accept at face value the pleadings and assertions of both parties and because the courts refused to require both parties to prove their claims. For those that assert their claim as a creditor they need only provide proof of payment and proof of loss, which is to say that they have not resold the  loans or mortgage backed securities.

Instead, the banks insist on arguing for the presumption that a bona fide transaction took place for value in which money exchanged hands rather than being required to prove that assertion by simply producing a canceled check or wire transfer receipt.  If you were the bank and you had proof of your payment and proof of your loss why wouldn’t you end the litigation in the first couple of months rather than let it stretch out for years? It is clear that the banks need judges to accept the presumption because the banks don’t have the actual proof.

http://www.nakedcapitalism.com/2013/04/foreclosure-review-hearings-show-its-time-to-burn-down-the-occ.html

Filed under: bubble, CDO, Eviction, foreclosure, GARFIELD GWALTNEY KELLEY AND WHITE, GTC | Honor, Investor, Mortgage | Tagged: , , , , , , , | 52 Comments »

Wells Fargo, Option One, American Home Mortgage Relationship

Posted on March 30, 2010 by Neil Garfield

Wells Fargo Bank, N.A. appears in many ways including as servicer (America Servicing Company), Trustee (although it does not appear to be qualified as a “Trust Company”), as claimed beneficiary, as Payee on the note, as beneficiary under the title policy, as beneficiary under the property and liability insurance, and it may have in actuality acted as a mortgage broker without getting licensed as such.

In most securitized loan situations, Wells Fargo appears with the word “BANK” used, but it acted neither as a commercial nor investment bank in the deal. Sometimes it acted as a commercial bank meaning it processed a deposit and withdrawal, sometimes (rarely, perhaps 3-4% of the time) it did act as a lender, and sometimes it acted as a securities underwriter or co-underwriter of asset backed securities.

It might also be designated as “Depositor” which in most cases means that it performed no function, received no money, disbursed no money and neither received, stored, handled or transmitted any documentation despite third party documentation to the contrary.

In short, despite the sue of the word “BANK”, it was not acting as a bank in any sense of the word within the securitization chain. However, it is the use of the word “BANK” which connotes credibility to their role in the transaction despite the fact that they are not, and never were a creditor. The obligation arose when the funds were advanced for the benefit of the homeowner. But the pool from which those funds were advanced came from investors who purchased certificates of asset backed securities. Those investors are the creditors because they received a certificate containing three promises: (1) repayment of principal non-recourse based upon the payments by obligors under the terms of notes and mortgages in the pool (2) payment of interest under the same conditions and (3) the conveyance of a percentage ownership in the pool, which means that collectively 100% of the ivnestors own 100% of the the entire pool of loans. This means that the “Trust” does NOT own the pool nor the loans in the pool. It means that the “Trust” is merely an operating agreement through which the ivnestors may act collectively under certain conditions.  The evidence of the transaction is the note and the mortgage or deed of trust is incident to the transaction. But if you are following the money you look to the obligation. In most  transactions in which a residential loan was securitized, Wells Fargo did not work under the scope of its bank charter. However it goes to great lengths to pretend that it is acting under the scope of its bank charter when it pursues foreclosure.

Wells Fargo will often allege that it is the holder of the note. It frequently finesses the holder in due course confrontation by this allegation because of the presumption arising out of its allegation that it is the holder. In fact, the obligation of the homeowner is not ever due to Wells Fargo in a securitized residential note and mortgage or deed of trust. The allegation of “holder” is disingenuous at the least. Wells Fargo is not and never was the creditor although ti will claim, upon challenge, to be acting within the scope and course of its agency authority; however it will fight to the death to avoid producing the agency agreement by which it claims authority. remember to read the indenture or prospectus or pooling and service agreement all the way to the end because these documents are created to give an appearance of propriety but they do not actually support the authority claimed by Wells Fargo.

Wells Fargo often claims to be Trustee for Option One Mortgage Loan Trust 2007-6 Asset Backed Certificates, Series 2007-6, c/o American Home Mortgage, 4600 Regent Blvd., Suite 200, P.O. Box 631730, Irving, Texas 75063-1730. Both Option One and American Home Mortgage were usually fronts (sham) entities that were used to originate loans using predatory, fraudulent and otherwise illegal loan practices in violation of TILA, RICO and deceptive lending practices. ALL THREE ENTITIES — WELLS FARGO, OPTION ONE AND AMERICAN HOME MORTGAGE SHOULD BE CONSIDERED AS A SINGLE JOINT ENTERPRISE ABUSING THEIR BUSINESS LICENSES AND CHARTERS IN MOST CASES.

WELLS FARGO-OPTION ONE-AMERICAN HOME MORTGAGE IS OFTEN REPRESENTED BY LERNER, SAMPSON & ROTHFUSS, more specifically Susana E. Lykins. They list their address as P.O. Box 5480, Cincinnati, Oh 45201-5480, Telephone 513-241-3100, Fax 513-241-4094. Their actual street address is 120 East Fourth Street, Suite 800 Cincinnati, OH 45202. Documents purporting to be assignments within the securitization chain may in fact be executed by clerical staff or attorneys from that firm using that address. If you are curious, then pick out the name of the party who executed your suspicious document and ask to speak with them after you call the above number.

Ms. Lykins also shows possibly as attorney for JP Morgan Chase Bank, N.A. as well as Robert B. Blackwell, at 620-624 N. Main street, Lima, Ohio 45801, 419-228-2091, Fax 419-229-3786. He also claims an office at 2855 Elm Street, Lima, Ohio 45805

Kathy Smith swears she is “assistant secretary” for American Home Mortgage as servicing agent for Wells Fargo Bank. Yet Wells shows its own address as c/o American Home Mortgage. No regulatory filing for Wells Fargo acknowledges that address. Ms. Smith swears that Wells Fargo, Trustee is the holder of the note even though she professes not to work for them. Kathy Smith’s signature is notarized by Linda Bayless, Notary Public, State of Florida commission# DD615990, expiring November 19, 2010. This would indicate that despite the subject property being in Ohio, Kathy Smith, who presumably works in Texas, had her signature notarized in Florida or that the Florida Notary exceeded her license if she was in Texas or Ohio or wherever Kathy Smith was when she allegedly executed the instrument.

Filed under: bubble, CDO, CORRUPTION, Eviction, expert witness, foreclosure, foreclosure mill, GTC | Honor, HERS, Investor, Mortgage, securities fraud, Servicer | Tagged: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , | 52 Comments »

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