Denial is not a Defense: Registrars and Clerks Are Missing the Point and Most of Them Know It

It is the transfer document itself that suggests there was something to transfer. And it suggests that there really is a transferor and transferee because that is what is written on a piece of paper. But there is no transaction that is memorialized. It is all fiction. Nothing was transferred. But that fiction leads to defeat for homeowners unless it is aggressively contested. 

If someone with no claim produces a document that says there is a claim, the courts are required to treat the supporting documents as real until proven otherwise. You can prove otherwise by direct evidence or you can prove it by indirect evidence. But the burden of proving otherwise is squarely on the homeowner and if they fail to understand how and when to apply the rules of civil procedure and evidence they lose their home to a dishonest claimant who probably never made a formal appearance in court.

Take a look at this from Minnesota:

507.413 AUTHORITY OF MORTGAGEE DESIGNATED AS NOMINEE OR AGENT.(a) An assignment, satisfaction, release, or power of attorney to foreclose is entitled to be recorded in the office of the county recorder or filed with the registrar of titles and is sufficient to assign, satisfy, release, or authorize the foreclosure of a mortgage if:(

1) a mortgage is granted to a mortgagee as nominee or agent for a third party identified in the mortgage, and the thirdparty’s successors and assigns;

(2) a subsequent assignment, satisfaction, release of the mortgage, or power of attorney to foreclose the mortgage, is executed by the mortgagee or the third party, its successors or assigns; and

(3) the assignment, satisfaction, release, or power of attorney to foreclose is in recordable form.The county recorder and registrar of titles shall rely upon this assignment, satisfaction, release, or power of attorney to foreclose to assign, satisfy, release, or foreclose the mortgage.(b) This section applies to any mortgage, assignment, satisfaction, release, or power of attorney to foreclose executed, recorded, or filed before, on, or after August 1, 2004.

History:2004 c 153 s 2Minnesota Statutes AnnotatedProperty and Property Interests (Ch. 500-515b)SuperBrowse Chapter 508. Registration of Land (Refs & Annos)M.S.A. § 508.72

This is carefully worded by lobbyists from Wall Street “Banks” (aka stockbrokers). Their plan requires the creation of illusion and in order to do that they must make it appear (a) that the underlying obligation exists, (b) that it is established on the accounting ledgers of someone who paid value for it, and (c) that it has been “transferred” to some party who is a designated virtual creditor for purposes of enforcement. Lawyers and pro se litigants who fail to pursue these points are usually destined for failure in the courtroom.

The issue here is that MERS is an agent. Calling it a nominee changes nothing. MERS is the acronym of a series of names all related to “Mortgage Electronic Registration Systems, Inc., MersCorp, or MERS, Inc. dba Mersinc.com. It is an agent for the party named as its principal who is generally either not a real company, not a real lender, or both. So MERS is the agent for a principal that has nothing to do with the homeowner transaction except that is paid a fee for getting the homeowner to sign papers under false pretense.

You will find “principal” in the mortgage (labeled as a “lender,” but is not generally lending any money or establishing any loan account receivable. MERS does not appear on any promissory note nor any other document. It neither accepts nor receives ownership of anything. It obtains bare legal naked title without any ownership of the debt, note, or mortgage (or deed of trust). The banks have worded these laws to literally create the illusion of something out of nothing.

When the successor pops up, they are playing on the court’s natural inclination, backed up by the absence of any credible contest from the homeowner, to assume that everything before the “successor” came into the picture was true, accurate, and valid — this avoiding the painful admission that the entire scheme was a scam mixing parts of Ponzi scheme, boiler room, bucket shop and other illegal practices that often scape the “Self-regulation” that is relied upon by so many people —especially if they believe the myth of “free market.”

In short, it is the transfer itself that suggests there was something to transfer. And it suggests that there really is a transferor and transferee because that is what is written on a piece of paper. But there is no transaction that is memorialized. It is all fiction. Nothing was transferred. But that fiction leads to defeat for homeowners unless it is aggressively contested. 

By allowing the words “successors and assigns” to appear, they distract from the question of whether there was a debt, whether it was really transferred by payment of value, and whether anyone is an assign or successor.

This is not rocket science. If there is no loan account receivable anywhere on any books of account, then a “payment history” produced by yet another disinterested and unauthorized third party adds nothing to the mix. In that scenario there is no basis under any law that any underlying debt or liability of the homeowner exists; but there is a facial debt created by executing the promissory note and that allows for the creation and recording of the mortgage or deed of trust.

And that is why denial doesn’t work alone. The homeowner must disprove the facial validity of the documents. And given the circumstances where the true facts under the sole custody and control of their position they can only do so through the use of indirect evidence, raising the inference that the debt does not exist and that even if it did exist it is not owned by or controlled by the named claimant. This is much easier than most homeowners and their lawyers perceive the task. I have even done it without discovery.

Someone is an assign ONLY if there is an instrument of assignment and the assignor had ownership of the thing being assigned. There is no position of “assign” if those conditions are not met, That is basic black letter law for centuries if not millennia.

Someone is a successor ONLY if they succeded to the rights and ownership of the predecessor. They can ONLY get into that position if they paid for the debt, note, and mortgage altogether or they purchased or merged with the predecessor. They are not a successor just because they’re the next person to make a claim. It doesn’t work that way. It never has worked that way and it never will work that way. This no philosophical discussion. We are an organized society with rules and those are the rules.

But that is exactly the point. The Wall Street banks have created boiler-plated gibberish and attached a meaning to it. Executing an allonge by someone without ownership or authority to do so means there is no allonge or endorsement. Executing an assignment without ownership and authority over the debt, note, and mortgage is a legal nullity in all jurisdictions.

The problem for homeowners and many lawyers is that they don’t get acquainted with the rules.

If someone with no claim produces a document that says there is a claim, the courts are required to treat the document as real until proven otherwise. You can prove otherwise by direct evidence or you can price it by indirect evidence. But the burden of proving otherwise is squarely on the homeowner and if they fail to understand how and when to apply the rules of civil procedure and evidence they end up losing their home to a dishonest claimant who probably never made a formal appearance in court because the lawyer had no agreement with the named claimant (allowing for plausible deniability in case the IRS seeks recovery of unpaid taxes the SEC seeks disgorgement and fines, the FTC seeks disgorgement, damages, and fines, or some homeowner gets a judgment for compensatory or punitive damages in whopping verdict — after the malicious intent of the scheme is revealed).

Judges are not supposed to pay any attention to discovery requests unless you make it an issue according to the rules. Judges are required to assume a valid claim as long it technically is stated to be a claim. Denying is not the same as defending.

The registrars and clerks have become addicted to what little they get from Wall Street brokers who are consistently violating the law of their jurisdiction, avoiding taxes and fees, and generally causing mayhem. And at first, they all started to scream until they were silenced by Wall Street influence, money and politics.

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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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LIES: RATINGS, APPRAISALS, AFFIDAVITS ETC.

SERVICES YOU NEED

The common thread is they were lying.

  • They lied when they said these were AAA rated liquid investments based upon industry standard underwriting standards for residential mortgages

  • They lied when they said this property is worth more than the principal that was borrowed.

  • They lied when they said these loans are in default

  • They lied when they said they were giving a complete accounting for the transaction

  • They lied when they said “I have personal knowledge”

  • And they are lying now when they say the contents of the fraudulent documents are true but the person was wrong. If that was true all they would have to do is submit a corrective instrument signed by someone who would swear again under oath that the facts were true. But they don’t have that person because there are no such “true facts.” The whole thing is a myth and now it is starting to unravel. There is a way out of this mess for everyone, but nobody listens to the facts — they (the banks) insist on stepping on rake after rake as they walk off a cliff. Who is advising these people, Daffy Duck?

Crushing their own credibility, GMAC, Ally and Chase and soon other banks and their foreclosure mills will soon be trying to tell us that the information on the affidavit is correct, that the substitution of trustee is valid, that the notice of default is genuine, that they are the holder of the note (even if the obligation inures to the benefit of another party), and that the lien has been perfected. They continue to proceed as though they can fool all the people all of the time.

Memo to Banks: your advantage in procedure is vanishing — there are about 5,000 judges across the country that are questioning themselves and their docket and most of all YOU, whom they trusted. Judges don’t like it when someone uses the system to make a mockery of the rules, and they really don’t like it when they realize that they just rubber stamped 3,000 foreclosures that were fatally defective. RULE #1: Don’t make the Judge angry. Oops, you already did that.

Nobody liked or trusted the banks before the revelations by GMAC and Chase corroborating what I have been saying for three years and teaching in my seminars about evidence, objections and the rules of civil procedure. Your credibility is going down the drain, what was left of it. You can’t use fake affidavits to circumvent the requirements of evidence and substantive law anymore. You can’t submit assignments, endorsements, substitutions of trustee, notices of default, notices of sale and file motions for summary judgment unless you are actually entitled to win on a level playing field. That means you need a live witness who is going to say that the assignment was executed by them on behalf of an entity that had something to assign and with authority from that entity that can be shown within the proffer of other evidence. You need a live person who is willing to perjure themselves. And even if you found one, they will never survive cross examination, discovery and investigation.

It is no longer a secret that there were no assignments, no endorsements, no allonges, no transmittal of the paperwork until you decided to foreclose. It’s no secret that when the new paperwork was signed, the people signing it had no more idea what they were signing than those characters who signed the affidavits. It’s no secret that the auctions were based upon fraudulent “credit bids” and that title was improperly documented and thus not actually transferred — not in the eyes of any competent title examiner. It’s no secret that it was all a sham — not anymore. So you can either continue to strategize with Daffy Duck as your chief adviser or you can choose another path. If you continue down the current path, do the math. It doesn’t work out very well. Do the politics. It doesn’t work out very well.

Congratulations, you just became the loss insurer for millions of American homeowners — and at the same time you have exposed your other activities in student loans, credit cards, auto loans and other debt.

Judges Rising to the Rules

Editor’s Comment: Without inventing anything, an increasing number of Judges are coming to the same conclusion. If they apply the rules and deny the pretender lender the benefit of presumptions to which they were not entitled in the first place, the case can be heard on the merits. They don’t need to decide who is right or who is wrong. They need to call balls and strikes.

In this submission from 4closurefraud.com the Judge simply states the obvious — an affidavit from some stranger who says that he looked at some papers and arrived at some conclusions in his or her own mind is not evidence or even a proffer of evidence. It is nonsense. Summary Judgment denied. Motion to lift stay should similarly be denied. Any motion based upon such an affidavit from EITHER side should be denied. AND NOW THEY ARE…..

I SHOULD ADD THAT THE NAME “ICE” ESQ. IS COMING UP MORE FREQUENTLY. I’D LIKE TO SEE MORE FROM THIS LAWYER. He seems to be talking the same tack as Gator Bradshaw in Central Florida (Ocala et al) , Jon Lindemen (S. Fla and Orlando), George Gingo (Northern Florida) and others, to wit: we are out to win these cases not just “mix it up” to justify the fees. Very gratifying to me. 3 years ago, nobody would listen. Now they are taking the ideas developed here, by Max Gardner and April Charney and taking it to the next level. I hope they leave us in the dust.

Full Hearing Transcript attached . Courtesy of T. Ice Esq. Palm Beach Florida

Florida – June 2010 – MSJ denied. Affidavits Hearsay Insufficient

What we are starting to see here is a pattern of Judges not excepting these affidavits from these robo-signers.

I can tell you that, if properly challenged, they will pull the affidavits across the board.

Don,t let that stop you from deposing these people, because once you do it will clearly show that they DO NOT have the authority to produce them. It will also show you they know absolutely nothing about the documents that they are signing even though they state it is of their personal knowledge.

Below is a transcript of how one Judge, in Palm Beach County, DENIED a motion for summary judgment on pending issues, including the insufficient affidavit.

Another key issue was an affidavit presented by the defense from Expert Witness Lynn Szymoniak regarding the fraudulent assignment presented in the case.

Lynn’s expert testimony has stopped many foreclosures in its tracks.

If you are interested in talking to Lynn about her services she can be reached at szymoniak@mac.com and just tell her 4closureFraud sent ya…

Some excerpts from the transcript…

THE BANK OF NEW YORK TRUST
COMPANY, N.A., AS TRUSTEE FOR
CHASEFLEX TRUST SERIES 2007-3,
Plaintiff,
-vs-
DAVID J. MOSQUERA; ELIZABETH

~

THE COURT: Okay. Without going into
anything else, I’m not about to enter a motion –
granting a motion for summary judgement based onan affidavit of Mr. Reardon.
~
MR. CHANE: Your Honor, there is simply no — there’s no basis to –
~
THE COURT: I’m sorry. It’s just — it
basically just says he looked at some records. I
don’t know what he looked at and he plugged some
numbers in.
~
MR. CHANE: Your Honor, it’s based on his
personal knowledge. That’s all he needs to do
according to the Rule.
~
THE COURT: Well, motion denied.
~
MR CHANE: On what basis, Judge?
~
THE COURT: On the basis that the Court
fears that there are many issues of fact to be
determined. This is not a matter in which
everything is undisputed.
~
MR. CHANE: What issues of fact?
~
THE DEPUTY: Sir, the Judge ruled. The
hearing is over.

http://www.scribd.com/doc/36551048/Full-Transcript-M-S-J-denied-Hearsay-Affidavit-not-Valid

4closureFraud.org

THE BANK OF NEW YORK TRUST COMPANY, N.A., AS TRUSTEE FOR CHASEFLEX TRUST SERIES 2007-13 PLAINTIF VS. DAVID MOSQUERA

CASE NUMBER 50 2008 CA 04969 XXXX MB PALM BEACH COUNTY FLORIDA

DISCOVERY AND PRACTICE TIPS: SEC RULE DISCLOSURE DOCUMENTS Carrington Mortgage – Stanwich – EMC Mortgage Corporation – New Century Mortgage Corporation (“NCMC”

FROM drhDe.u5a.htm

This is both a HERS post and a general post for those seeking discovery of documentation. You can Google this information also. This is also what I am asking all of you to send in to me for posting. I’m backdating the HERS posts like this generally to February and March so as not to crowd out current articles but if you look at the search index and bring up “HERS or even the particular name of an institution or unfamiliar name of an individual company or institution it will come up with increasing frequency as we expand this aspect of the blog.

DISCOVERY: You ask for all SEC filings including but not limited to 8k filings and back-up documents, custodians of those records, and people with personal knowledge of the information contained in those filings, together with their names, addresses, phone numbers, title, scope of duties etc. Then you call them and ask them what they know where there are other documents. Note these are words of art and have a general meaning that cannot be disputed in the industry. CFR= Code of Federal Regulations

EMC Mortgage Corporation transferred the servicing of mortgage loans with respect to the Carrington Mortgage Loan Trust Asset-Backed Pass-Through Certificates, Series 2007-HE1, to Carrington Mortgage Services, LLC. Prior to November 1, 2007, the Mortgage Loans were serviced by EMC Mortgage Corporation pursuant to the Pooling and Servicing Agreement, among Stanwich Asset Acceptance Company, L.L.C., Wells Fargo Bank, N.A., EMC Mortgage Corporation, Carrington Mortgage Services, LLC and HSBC Bank USA, National Association, a copy of which was filed as Exhibit 10.1 pursuant to Form 8-K on July 27, 2007 under the same Central Index Key (CIK) as this periodic report on Form 8-K (the “Pooling and Servicing Agreement”). On and after November 1, 2007, Carrington Mortgage Services, LLC will service the Mortgage Loans pursuant to the Pooling and Servicing Agreement. These are the SEC entries of data relating to this event.

STANWICH ASSET ACCEPTANCE COMPANY, L.L.C., on behalf of Carrington Mortgage Loan Trust, Series 2007-HE1 Asset-Backed Pass-Through Certificates

(Exact name of registrant as specified in its charter)

SEC File 333-139507-02

Carrington Mortgage Loa..2007-HE1

8-K{6

Mayer Brown & Platt/FA

11/01/07

Carrington Mortgage Loan Trust/Series 2007-HE1

STANWICH ASSET ACCEPTANCE COMPANY, L.L.C.

STANWICH ASSET ACCEPTANCE COMPANY, L.L.C. (as depositor under a Pooling and Servicing Agreement, dated as of June 1, 2007, providing for, inter alia, the issuance of Carrington Mortgage Loan Trust, Series 2007-HE1 Asset-Backed Pass-Through Certificates)

(Commission File Number)333-139507-02

Delaware

(IRS Employer Identification No.) 20-2698835

Seven Greenwich Office Park
599 West Putnam Avenue

Greenwich, Connecticut

06830

(203) 661-6186

Rule 425 under the Securities Act (17 CFR 230.425)

Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)
Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Written communications pursuant to Rule 425
Pre-commencement communications pursuant to Rule 14d-2(b)
Pre-commencement communications pursuant to Rule 13e-4(c)
Item 6.02.  Change in Servicer or Trustee

Carrington Mortgage Services, LLC (“CMS”) is a Delaware limited liability company and a wholly-owned subsidiary of Carrington Capital Management, LLC. CMS maintains its executive and principal offices at 1610 E. St. Andrews Place, Santa Ana, CA 92705. Its telephone number is (949) 517-7000.

On June 29, 2007, CMS acquired substantially all of the servicing assets of New Century Mortgage Corporation (“NCMC”), an indirect wholly-owned operating subsidiary of New Century Financial Corporation (“New Century”) as provided in the prospectus filed pursuant to Rule 424 of the Securities Act of 1933, as amended, on July 11, 2007 under the same Central Index Key (CIK) as this periodic report on Form 8-K (the“Prospectus”)

DISCOVERY HINT. IN ORDER TO GET APPROVALS THEY HAD TO SUBMIT FORMS (APPLICATION ETC.). ASK FOR THOSE FORMS AND THE DISCLOSURES ON THOSE FORMS FROM BOTH THE COMPANY YOU ARE SEEKING INFORMATION ABOUT AND THE AGENCY UNDER THE FREEDOM OF INFORMATION ACT. CMS has the approvals necessary to service mortgage loans in accordance with the related servicing agreements. CMS is qualified to service mortgage loans on behalf of Freddie Mac, a corporate instrumentality of the United States, and has received the approval of the Secretary of Housing and Urban Development to service mortgage loans. CMS has received approvals from the rating agencies with respect to the acquisition of the servicing platform. The residential mortgage servicing operations of CMS are currently rated -RPS4” by Fitch Ratings (“Fitch”). PRACTICE HINT: FILE AN ADMINISTRATIVE GRIEVANCE WITH THE AGENCY REGARDING THE VIOLATIONS YOU ARE ALLEGING. IN MANY CASES IT IS QUICKER AND THREATENS THE ABILITY OF THE SERVICER TO CONTINUE BUSINESS. DISCOVERY HINT: ASK FOR MATERIAL SUBMITTED FOR RATING FROM BOTH THE COMPANY (ISSUER) AND THE RATING AGENCY. SUBPOENA IF NECESSARY. DO DEPOSITIONS UPON WRITTEN QUESTIONS ON RATING AGENCIES AND GOVERNMENT AGENCIES TO ESTABLISH POINTS THAT YOU FEEL WILL BE UNCONTROVERTIBLE ONCE ENTERED INTO THE RECORD. PRACTICE HINT: IN ORDER TO DO THAT YOU WILL PROBABLY NEED TO FILE A MOTION TO TAKE THE DEPOSITION IN LIEU OF LIVE TESTIMONY THUS GIVING THE OTHER SIDE AN OPPORTUNITY TO CROSS EXAMINE THE WITNESS EITHER LIVE OR IN PERSON. YOU COULD ALSO TAKE THE BETTER ROUTE OF GETTING THE DEPOSITION DONE BY TELEPHONE OR VIDEO BUT THESE CAN GET EXPENSIVE. EITHER WAY MAKE SURE EACH DOCUMENT IS SPECIFICALLY LABELED AS AN EXHIBIT AND EVENTUALLY BATES STAMPED. START CREATING AN INDEX OF EXHIBITS WITH SHORT SUMMARIES OF WHAT YOU WANT TO SUE THEM FOR IN WORD FORMAT OR SOME OTHER SPREADSHEET OR DATABASE FORMAT SO THAT YOU CAN DO EASY SEARCHES. PRACTICE HINT: THE LONGER YOU MAKE THE JUDGE WAIT FOR THE PRODUCTION OF THE DOCUMENT, THE LOWER YOUR CREDIBILITY. SHUFFLING PAPERS AROUND MAKES IT LOOK LIKE YOU MAY NOT KNOW WHAT YOU ARE TALKING ABOUT AND THAT YOU ARE UNPREPARED.

Stanwich Asset Acceptance Company L.L.C.
By:
Name:  Bruce M. Rose
Title:  President



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