TILA Rescission in a Nutshell

Posted on June 16, 2015 by Neil Garfield

For more information please call 954-495-9867 or 520-405-1688

NOTE: There are strategic nuances here on when to do what. That is included in our rescission package. Some things are better left unsaid in a public forum. This is not an opinion of law upon which you should rely. You should find an attorney who has studied this issue carefully and then rely on their advice.

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On the one hand you have a bunch of lawyers and judges who have studied the remedy of TILA rescission and all of them have come up with a unanimous conclusion: the deal is canceled when a notice of rescission is put in the mail.
On the other hand you have a bunch of judges and lawyers who have not studied the situation and who have arrived at the mistaken conclusion that they may reinterpret the TILA rescission anyway they want and that the rules of common law rescission will be applied.
Who is right? Answer: group #1. How do I know? Because the Supreme Court in the Jesinoski decision has already ruled and there is no higher place to go. The ruling from the US Supreme Court was unanimous which in our highly polarized world is as unusual as the TILA rescission remedy which they affirmed. The Supreme Court is not always right, but it is always final — their ruling is the law of the land. People can differ on whether they were right or wrong in Jesinoski — but either way there is nothing anyone can do about it. Only Congress can change the law.

TILA Rescission is a strategy that should considered in virtually all consumer loan cases. This might involve an enforcement action in Federal Court or State Court. The sooner you send the rescission the sooner the 20 days will expire. It is ONLY after the 20 days that you can take the position that they are in violation of statute and that they have waived any objection to the rescission — unless they file a lawsuit against you seeking to vacate the rescission, which IS effective by operation of law, the moment you drop it in the mailbox.

There are three TILA RESCISSION duties that arise for every lender and one remedy to get out of it. The three duties are (a) return of canceled note (b) filing any papers necessary to remove the mortgage encumbrance from the homeowner’s chain of title and (c) return of all money ever paid by the borrower or to anyone in relation to the loan whether it be for fees, interest, principal or other compensation. If they want to stop these duties from being applied against any of the people in the chain that made allegations of ownership, balance, servicing or default, they must file suit, as a creditor, within 20 days from the date of the notice and get an order within that time that vacates the rescission.

The creditor has 20 days in which to comply. If they don’t comply ( or sue and get a court order) there are the following consequences: (a) they are in violation of statute, subject to an enforcement suit on their duties under rescission (b) they have waived any objection to the rescission that should have been brought as their own lawsuit within the 20 days and (c) if they continue to stonewall their obligations for one year, the creditor (if there is one) waives any right to demand any payment on the rescinded loan — the debt is extinguished along with the previously extinguished note and mortgage. Standing for the lawsuit can only be by way of allegations that they are the true creditor and cannot be based upon the void note and void mortgage because you can’t use a void instrument as the basis for any claim.

Note that the suit to enforce the rescission is NOT a suit to make the rescission effective by operation of law. The cancellation of the note and mortgage has already happened as the Jesinoski decision made abundantly clear. The note and mortgage are void as of the date of mailing of the notice of rescission.

This is a very unusual remedy for borrowers that both judges and lawyers have been misinterpreting for years. The idea that a borrower, on their own, could end a loan involving hundreds of thousands of dollars with a simple letter is NOT what the Judges or lawyers think is the right approach. It doesn’t matter what they think. Congress passed this law and it was signed into law by the President 50 years ago.

The Courts cannot reinterpret it to mean something else without violation of separation of powers between the judiciary and the legislative branches of government.What matters is that It was not until the Jesinoski decision that thousands of Judges and tens of thousands of lawyers were told that they were wrong for the last 15 years. The loan is cancelled by the mailing of the notice of rescission.

TILA Rescission is a specific statutory scheme that is different from common law rescission. What the Judges and lawyers failed to perceive when they started messing around with the interpretation of a perfectly clear statute is that if their approach was upheld, the entire system of nonjudicial foreclosure would be subject to the same reinterpretation. And for those of you who recall in nonjudicial states, the challenges to nonjudicial foreclosures were met by the banks arguing that the courts have no business interpreting a specific statutory scheme that is very clear on its face and can only be overturned if it is deemed unconstitutional on its face or in its application. The banks won, which means borrowers win on the issue of rescission.

The January ruling from a unanimous Supreme Court was unusual unto itself. The opinion written by Justice Scalia was terse and caustic — showing the court’s irritation at having to remind judges and lawyers that there is a basic rule of law that says that the court may not “interpret” a statute that is unambiguous. This statute is clear as it could be. So even if a Judge doesn’t like it or doesn’t believe it should be the law, or doesn’t like the result, the Judge has no choice but to follow the rule of law set forth in TILA, in Reg Z and in the Supreme Court decision issued in January. The only way this can change is if Congress passes a new law.

The key to your rescission strategy is going to be the answer to this question: under what circumstances is the effective date of the rescission delayed or contingent? The answer is none. That answer follows from the fact that the rescission IS effective on the date of mailing BY OPERATION OF LAW. So the issue has already been decided by Congress, the Federal Reserve (reg Z) and the US Supreme Court. Like any order or act that is effective by operation of law, rescission may be vacated — but not ignored. And like other orders or actions that are effective by operation of law, there are limits on the ability to sue for temporary or permanent injunction.
And THE bank or alleged servicer writing a letter to YOU saying that you have no right to rescind means nothing except that they received the notice — just like when you write a letter to them asking them to please not foreclose because you have in fact made all your payments. The banks and servicers ignore those letters and get foreclosure judgments and sale of the property no matter how many letters you write. If you don’t challenge them IN COURT it means nothing.

Once the 20 days has expired you need to consider whether to hire counsel to prosecute the enforcement of the rescission. Those allegations consist of reference to the note and mortgage, the fact that you did rescind the transaction and that the loan contract is canceled and then the fact that the creditors are in default of their obligations under TILA. The upside is that it should result in cancelling the foreclosure case because the mortgage and note will then be void by operation of law. The Court lacks jurisdiction to enter a judgment of foreclosure on a mortgage that is void at the time the court hears the case. The downside is that if you win the enforcement action it is going to result, if they comply, in them sending the canceled note, filing the satisfaction of mortgage and giving you the money that was paid. But THEN the creditor may, for the first time, demand payment on the old loan. [see our rescission package on further details and strategies on this]

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Judges Resist Proactive Homeowners Challenging Servicers and Pretender Lenders

Posted on February 12, 2015 by Neil Garfield

For more information please call 954-495-9867 or 520-405-1688

This is for general information only. It should never be used as a substitute for the advice of an attorney licensed in the jurisdiction in which your property is located.

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see also 201306_cfpb_laws-and-regulations_tila-combined-june-2013

I’ve been busy dealing with Judges who are resisting meritorious defenses and proactive lawsuits challenging the validity of the mortgage, note, debt or assignments. I had one Judge order me to remove America’s Wholesale Lender — an entity that doesn’t exist — as a party Defendant.

But an increasing number of homeowners are seeking to challenge, rescind, or otherwise put the pretender lenders on defense, along with the “servicers” who have no authority and question the enforceability of a modification agreement in which the countersigning party is a “servicer” with dubious or nonexistent rights to enforce a modification agreement.

This is reminiscent of when I wrote in 2008 that the Courts are getting it wrong about rescission. I said then that rescission is a specific statutory remedy which is clear on its face and not subject to interpretation that the “borrower” is getting a free house. I said that applying common law rules on rescission was wrong. There was no requirement for the homeowner to file suit and no requirement for the homeowner to tender money to the “lender” (who can’t be known because of the lack of disclosure). Hundreds of state and Federal Courts all the way up to the appellate level disagreed with me. But I stuck to my guns and continued to advance the legal theory that the statute was explicit and that Courts did not have the right to legislate from the bench.

The US Supreme Court eventually agreed with me recently overturning hundreds of final judgments, orders on dismissal and discovery. The effective on past cases is not yet known. If they have already been concluded right through sale it might be that local law might make the wrong decision final anyway. But my opinion is that if we go by what the statute says, once the notice of rescission was sent, the mortgage and note were nullified “by operation of law.” And the effect is simple: there can be no foreclosure on a mortgage and note that don’t legally exist, even if the mortgage is still recorded in the chain of title. Closings — even short sales — are cast into doubt as to whether the title or the money was handled properly.

As a result, the general consensus about the borrower was turned on its head. The “enforcement” of the rescission was not required by the borrower, it was required to be challenged within 20 days of the notice of rescission. The tender of money by the borrower is similarly turned on its head — it is the lender who owes money (a lot of it) to the borrower. And the threat of foreclosure is totally removed. The statute of limitations doesn’t just apply to borrowers. it also applies to “lenders.”  Once the borrower gives notice of rescission, the “lender” must file a declaratory action contesting the rescission within 20 days. If they don’t file that action, they waive any potential defense to the rescission.

Many individuals are sending notices of rescission even on old loans based upon the premise that they only recently discovered the defects in the loan and defects in the loan closing procedures. If the lender fails to file a lawsuit saying that they are a “lender” and where they prove their status as a lender, they lose. If they can’t prove that the disclosures at closing were true and correct within the tolerances specified in the statute (TILA), they lose. If they fail to file within 20 days, they lose.

The requirement that the “lender” record a satisfaction of mortgage and return the canceled note is just to make it easier for the homeowner to get alternative financing. And the requirement that the “lender” disgorge or pay all money paid in the origination of the loan including brokers’ fees, together with all payments of interest and principal was also teeth in the law to level the playing field, reducing the amount that the homeowner might need to pay to the lender LATER.

The idea behind the law was to address predatory or wrongful lending or enforcement tactics by banks whose dubious business plans were far too sophisticated for any normal borrower to understand what was really happening. TILA and Regulation Z were written to level the playing field. Once the borrower discovered material defects in the loan or loan procedure, they are allowed to get rid of that loan and go get another loan. The primary impact, from a legal point of view, is that the mortgage is gone “by operation of law” and the note is nullified, leaving a bare debt for the “lender” to allege and prove. But whatever the debt might be, it is UNSECURED, and thus subject to discharge in bankruptcy.

Rescission is a drastic remedy that puts the “bank” at a  spectacular disadvantage. But it is the law. and the same holds true when you have fatal defects in the origination of the loan. If the named lender doesn’t exist or didn’t make the loan, the note and mortgage should not have been released to anyone, much less recorded. That means that the mortgage was essentially a wild deed. The mortgage is not voidable, it is void. And THAT means, just like in the case of rescission that the mortgage must be removed from the chain of title on the property. Like rescission, the note and mortgage are void or nullified by operation of law, if the Judges would only apply it.

My group has several of these cases on appeal and we are confident that the appellate courts will turn the corner on proactive cases where the homeowner is current on the so-called payments due (and which are extracted under threat of enforcement and foreclosure). The current thinking of the courts in many cases is neither based in fact nor logic. If the borrower is declared in default they are regarded as deadbeats. If they are current, they are regarded as greedy deadbeats. We think that like several cases have already shown, the “servicer” or “lender” will be forced to defend cases that were dismissed by trial judges.

In the end, we think that homeowners will not only get rid of the note and mortgage, but potentially also the debt because only someone who actually did the funding could come forward with a legal or equitable claim for unjust enrichment. Such creditors will have a difficult time making the claim because (a) they don’t know anything about the case and (b) in order to do so they would be required to track and prove the money trail to show that they are in fact the creditors. Modifications by volunteer intermeddlers — like servicers who lack actual authority to service the loan because they are relying on the Trust that is falsely claiming ownership of the loan — will in our opinion also be deemed a nullity.

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Short-Sale Alert: Shifting the Title Problem to the Borrower

Posted on March 20, 2013 by Neil Garfield
If you are seeking legal representation or other services call our Florida customer service number at 954-495-9867 and for the West coast the number remains 520-405-1688. Customer service for the livinglies store with workbooks, services and analysis remains the same at 520-405-1688. The people who answer the phone are NOT attorneys and NOT permitted to provide any legal advice, but they can guide you toward some of our products and services.
The selection of an attorney is an important decision  and should only be made after you have interviewed licensed attorneys familiar with investment banking, securities, property law, consumer law, mortgages, foreclosures, and collection procedures. This site is dedicated to providing those services directly or indirectly through attorneys seeking guidance or assistance in representing consumers and homeowners. We are available to any lawyer seeking assistance anywhere in the country, U.S. possessions and territories. Neil Garfield is a licensed member of the Florida Bar and is qualified to appear as an expert witness or litigator in in several states including the district of Columbia. The information on this blog is general information and should NEVER be considered to be advice on one specific case. Consultation with a licensed attorney is required in this highly complex field.

Editor’s Comment: In reviewing some documents for a proposed short-sale it appears to me that the reason why the banks are willing to do it is hidden in the legalese contained in the multiple forms that the borrower is asked to sign.

It is important that you have an attorney licensed in the jurisdiction in which the property is located review those short-sale papers before you sign them, thinking your problems are over.

The first big problem that I see is that it appears to be common practice for the borrower to warrant title and lack of encumbrances that others might assert claims. This is a warranty that properly should be made by the servicer, the trust and the trustee on the deed of trust (where applicable) since the information necessary to make such an assertion or acknowledgment or warranty is solely within the care, custody and control of the pretender lenders.

The fact is that the satisfaction of mortgage or release and reconveyance may be executed by a party lacking the authority to do so, just as the wrongful foreclosures are based upon robo-signed fabricated documents. If the Seller in a short-sale makes such a warranty and a claim arises later that the title is corrupted it is the Seller who made the warranty to the new buyer and the title company, and both the buyer and the title company could sue the Seller who thought they were putting an end to the foreclosure nightmare.

The fact is that depending upon the actual money trail and the the documentary trail that preceded the short-sale, there are many parties who could assert a claim, although it appears unlikely they will do so.

If the asset pool (trust or REMIC) actually acquired the loan legally then it should say so and join in the release and reconveyance or satisfaction of mortgage. Which brings me to the second point of concern: when the package is delivered to the Seller in a short-sale, it typically does NOT include the forms that will be used to release the mortgage, waive the deficiency etc. It is entirely possible that a trusting Seller in a short-sale might themselves tied in knots because the satisfaction or reconveyance contains statements, warranties and assertions that are not true and potentially binding the Seller for all responsibilities on title and even deficiencies.

If the onus of potential title problems is not being covered by the title company and disclaimed by the parties executing the release or satisfaction, then the Seller is stuck with a problem he didn’t have before: corruption of title caused by the fake scheme of securitization is transferred to the Seller’s doorstep. It is even possible that you might be inadvertently signing up for a deficiency judgment when in a foreclosure (particularly in non-judicial states) the deficiency is ordinarily waived. This can force the Seller into a bankruptcy they were seeking to avoid. Be Careful!

Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud | Tagged: , , , , | 103 Comments »

DO YOU DARE ISSUE A WARRANTY DEED OR ANY DEED WITHOUT LIABILITY?

Posted on September 19, 2011 by Neil Garfield

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The inescapable conclusion at this point, is that title on more than 100 million real estate transactions is at the very least in doubt and quite probably corrupted. In legalese that would be expressed as clouded, unmarketable (i.e., you can’t sell it or finance it, because nobody will take it), defective or fatally defective. The only exceptions I can think of are those deals where raw land has been purchased from a long-standing owner with no debt attached to the land or where a home is purchased or refinanced where the last transaction is twenty years ago. Most people are unaware that they are sitting on shifting sands instead of a solid foundation — where title is properly recorded in the recording office of the county in which the property is located.

Yet people and institutions are issuing instruments fraught with liability and the high probability that the transaction — and the representations contained in the instrument they signed —- will be the subject of litigation later when someone tries to clear title or collect damages. Here are some examples:

  1. A Warranty Deed, required in most transactions, requires the person signing to (a) attest and prove they are who they say they are (b) that they or the party whom they represent has title (usually fee simple absolute) and (c) that if they are signing as an agent, they have provided proof (usually recorded with the deed in properly recordable form) of their authority. The signor is promising, in exchange for the consideration paid, that if this Warranty Deed turns out to be challenged by anyone, they will defend the challenge and pay damages if they lose. Reliance on the title company, mortgage banker, mortgage lender or anyone else is not a defense although the signor could cross claim against those people and bring them into the lawsuit. The point is that the cost of litigating these cases could rise into tens of thousands of dollars. The cost of losing could rise into hundreds of thousands of dollars, or even millions of dollars. 
  2. A “Special Warranty Deed” might have some language of limitations that SHOULD put the buyer on notice but most people rely upon the title or closing agent, or their lawyer (if they have one) to make sure that the deed gives them the title they thought they were getting. This too could give rise to litigation because of representations at closing, representations in the title commitment or policy etc.
  3. A Satisfaction of Mortgage requires the person signing to (a) attest and prove they are who they say they are (b) that they or the party whom they represent is the creditor and is the owner of the rights under the mortgage or deed of trust and (c) that if they are signing as an agent, they have provided proof (usually recorded with the Satisfaction in properly recordable form) of their authority. The signor is promising (unless someone played withe the wording), in exchange for the consideration paid, that if this Satisfaction turns out to be challenged by anyone, they will defend the challenge and pay damages if they lose. Reliance on the title company, mortgage banker, mortgage lender or anyone else is not a defense although the signor could cross claim against those people and bring them into the lawsuit. The point is that the cost of litigating these cases could rise into tens of thousands of dollars. The cost of losing could rise into hundreds of thousands of dollars, or even millions of dollars. 
  4. A Release and Reconveyance is the same as a Satisfaction of Mortgage. So whether you received a satisfaction of mortgage or a release and reconveyance, your assumption that the prior lien was paid off and is now officially satisfied and removed from the records as encumbrance on the land may be, and I think, probably is wrong. We have seen several cases here at livinglies where the wrong party (Ocwen in one case) took the oney issued the Satisfaction and then refused to either give back the money or provide any additional information even though it is now apparent that they were not the creditor, not he owner of the mortgage and had no authority to issue the satisfaction. 
  5. A Trustees Deed on Foreclosure is much the same as a Warranty Deed. Potential Trustee liability here is huge. It requires the person signing to (a) attest and prove they are who they say they are (b) that they or the party whom they represent is the Trustee or “substitute Trustee” (see below) and is the owner of the rights under the mortgage or deed of trust, (c) that if they are signing as an agent, they have provided proof (usually recorded with the Satisfaction in properly recordable form) of their authority and (d) that they are in fact the Trustee and that they have performed the statutory duties of due diligence that is required of a Trustee under a Deed of Trust. The signor is promising (unless someone played withe the wording), in exchange for the consideration paid, that if this Deed turns out to be challenged by anyone, they will defend the challenge and pay damages if they lose. Reliance on the “beneficiary” who usually comes out of nowhere, “lender” who also usually comes out of nowhere, title company, mortgage banker, mortgage lender or anyone else is not a defense although the signor could cross claim against those people and bring them into the lawsuit. The point is that the cost of litigating these cases could rise into tens of thousands of dollars. The cost of losing could rise into hundreds of thousands of dollars, or even millions of dollars. The banks don’t actually worry about this because most “Trustees” are “substitute Trustees” in which a substitution was filed given apparent authority to a new “Trustee” who is not an independent title agent or some similar entity but rather an agent that is in the foreclosure business with the bank that has inserted itself into the transaction as a “pretender lender.” Due diligence by the Trustee would have revealed most robosigning and other fraudulent practices, but due diligence, contrary to the requirements of statute, was never performed because they were no longer taking the orders from the legislature. They were skipping over their statutory duties and taking orders from a party who is merely alleged to be the lender even though it is not the same party as stated on the original note and mortgage ( deed of trust).
  6. Substitution of Trustee: Until securitization came into play it was a rare occurrence that the trustee would be substituted. The Trustee on teh Deed of Trfust would simply be given instructions by the payee on the note and the named secured party in the mortgage) deed of trust) to commence default and dforeclosure proceedigns. But now in virtually every foreclosure there is first a “substitution of trustee’probably because the original trustee would perform the due diligence required under statute and revealed potential problems which would have held up or cancelled the foreclosure. requires the person signing to (a) attest and prove they are who they say they are (b) that they or the party whom they represent is the creditor and is the owner of the rights under the mortgage or deed of trust and (c) that if they are signing as an agent, they have provided proof (usually recorded with the Satisfaction in properly recordable form) of their authority. The signor is promising (unless someone played withe the wording) that if this Substitution of Trustee turns out to be challenged by anyone, they will defend the challenge and pay damages if they lose. Reliance on the “beneficiary” who usually comes out of nowhere, “lender” who also usually comes out of nowhere, title company, mortgage banker, mortgage lender or anyone else is not a defense although the signor could cross claim against those people and bring them into the lawsuit. In many cases the substance of the substitution is that the “new” beneficiary is in effect appointing itself or its agents who promise to do their bidding instead of using the original Trustee or someone else who take their duties seriously. The point is that the cost of litigating these cases could rise into tens of thousands of dollars. The cost of losing could rise into hundreds of thousands of dollars, or even millions of dollars. The banks don’t actually worry about this because most “Trustees” are “substitute Trustees” in which a substitution was filed given apparent authority to a new “Trustee” who is not an independent title agent or some similar entity but rather an agent that is in the foreclosure business with the bank that has inserted itself into the transaction as a “pretender lender.” Due diligence by the Trustee would have revealed most robosigning and other fraudulent practices, but due diligence, contrary to the requirements of statute, was never performed because they were no longer taking the orders from the legislature. They were skipping over their statutory duties and taking orders from a party who is merely alleged to be the lender even though it is not the same party as stated on the original note and mortgage ( deed of trust).

There are many other documents that fall within the same level of analysis like the Notice of Default (which comes from the alleged authority of the  Substitute Trustee, based upon information from what is probably an undisclosed source, the Notice of Sale (which appears right on its face, but is subject to the same analysis as to the signor, and other documents.

The Bottom Line is that homeowners and institutions alike are facing potential litigation and liability as the years roll on, with few if any witnesses to back them up and in the case of homeowners precious little in the way of resources to fight off the litigation.

Check with a real property and litigation attorney before you take any action based upon what you see here. They should be licensed in the county in which the property is located.

Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud | Tagged: , , , , , , , , , , , , , , , , , , , , , , , , , , | 13 Comments »

Deleveraging: Borrowers Paying Off Loans Early — But Who Signs the Satisfaction of Mortgage?

Posted on January 3, 2011 by Neil Garfield

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It could get even worse, and probably will. The current status of title and the current status of these obligations is such that a moral hazard exists that is sure to be exploited by a new group of third parties who perceive the opportunity. Because the title question is not resolved and the status of the obligation is not revealed, ANYONE can make the claim that they are the creditor and ANYONE can pretend to be an “institution.” They will take your money in a scam, give you a satisfaction of mortgage that meets the statutory standards as to form and you will record it only to find out that nobody ever heard of the people who took the payoff on your mortgage. By the way, this group is no different from the current group of pretender lenders who are doing the exact same thing.

EDITOR’S COMMENT: If you don’t know the identity of the creditor, how do you pay off your loan? The answer is that any of the securitization players including “servicers” will be more than happy to take your money and they might even give you a satisfaction of mortgage. If it is a credit card, they will be happy to give you a statement that says you don’t owe any more money. That ought to feel good, right? A growing number of people who still have some money are using it to reduce their debt a process called “deleveraging” in the world of finance. The net result for the economy is that instead of buying stuff they don’t need, people are taking the advice of people like Dave Ramsey on Fox and going for a new brass ring — NO DEBT.

The problem again is the attempted securitization of the receivables and the obfuscation of the identity of the owner of the loan. A satisfaction of mortgage from someone who that doesn’t own the loan is the same as a deed from someone who doesn’t own the house. Don’t be too surprised if down the road you start getting dunning letters from collection bureaus claiming you still owe the money.

It doesn’t matter how you are paying off a loan — sale of property, securities or refinancing — if you don’t have the right party in the room as the “lender”, you have a title and a credit problem. The satisfaction of mortgage from a party with no financial interest in the loan is a wild deed — void. A statement that reciting the payoff of the loan is worthless if it comes from someone to whom you do not owe the money.

All roads lead back to the same question — who is the creditor and what exactly is the current status of the obligation after the receivable has been sliced, diced, paid off from collateral sources without subrogation and otherwise closed out long before you proposed to pay it off. In fact you might be proposing to pay off something that no longer exists.

Lawyers who ask me about this, because it is coming up more and more, get two pieces of advice from me — either get a release letter from the client that says they acknowledge that this transaction might not be what it seems and that title is clouded, defective or unmarketable OR get a court order declaring the status of title to be as set forth in the new deal where the mortgage is being paid off — a quiet title action in which the parties cooperate. Otherwise, I tell them, you are a walking target for malpractice or discipline when the client finds out that the the transaction is a legal nullity.

It could get even worse, and probably will. The current status of title and the current status of these obligations is such that a moral hazard exists that is sure to be exploited by a new group of third parties who perceive the opportunity. Because the title question is not resolved and the status of the obligation is not revealed, ANYONE can make the claim that they are the creditor and ANYONE can pretend to be an “institution.” They will take your money in a scam, give you a satisfaction of mortgage that meets the statutory standards as to form and you will record it only to find out that nobody ever heard of the people who took the payoff on your mortgage.

Then there is the possibility, some say probability, that anyone signing a deed that guarantees they have title (called a Warranty Deed) could and probably will get sued for breach of that warranty when it is discovered that the signor either had no interest in title, even though they thought they did, or that they conveyed title with an encumbrance which was represented as satisfied but in fact still is in the title chain.

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US borrowers pay off home loans

By Suzanne Kapner in New York, Financial Times

Published: December 13 2010 18:58 | Last updated: December 13 2010 18:58

A growing number of US borrowers are paying off their mortgage balance ahead of schedule, reversing a trend that saw them extract record amounts of cash from their homes by taking out ever larger loans during the housing bubble.

The reduction in mortgage balances is part of a larger move by consumers to pare back their debt in the wake of the financial crisis. Consumers are also using disposable income to reduce credit card debt.

The shift is having an impact on the shape of the US recovery. Such deleveraging “will be good for economic growth over the long term, but not in the short term”, said Frank Nothaft, chief economist of Freddie Mac, the government-owned mortgage finance company.

It also speaks to the weakness of the housing market. Borrowers can no longer count on rising home prices to inflate their spending power. In fact, with home prices falling, some borrowers will find themselves owing more on their mortgage than their homes are worth unless they pay off their principal, making it difficult to sell their home or refinance.

Lenders said that more borrowers are choosing to make mortgage payments every other week, as opposed to once a month, which works out to an extra payment a year and can save thousands of dollars in interest.

Other borrowers are opting for shorter-term mortgages, which will leave them debt-free sooner, but also require higher upfront payments than do standard 30-year fixed-rate loans.

A record number of borrowers are also paying off principal when they refinance, a process known as “cashing-in” that is the opposite of the “cash outs” popularised during the housing boom, when rising home prices allowed borrowers to refinance into larger loans and pocket the difference.

With home prices falling, such “cash outs” dropped in the third quarter to their lowest level in 25 years. Meanwhile, mortgage debt outstanding has been shrinking since the second quarter of 2008, after growing steadily during the previous three decades.

Brad Blackwell, a national sales manager for Wells Fargo Home Mortgage, said he is seeing more borrowers pay off their mortgages faster. Wells Fargo has seen a 10 per cent increase since January in the number of customers enrolled in its bi-weekly mortgage plan.

The savings can be significant. A borrower with a $200,000 mortgage that carries a 5 per cent interest rate could save $33,000 and repay the loan five years early simply by making one extra payment a year, according to Victoria Clement, a senior vice president of Loan Depot.

CMG Mortgage, based in San Ramon, California, encourages borrowers to deposit their entire paycheck into what it calls a “home ownership accelerator account,” which acts like a checking account, but automatically funnels any money not used for living expenses to mortgage payments, thereby reducing the loan balance faster.

Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud | Tagged: , , | 11 Comments »

MEDIATIONS, MODIFICATIONS, SHORT-SALES AND SETTLEMENTS

Posted on September 26, 2010 by Neil Garfield

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AUTHORITY AND AGENCY

In “Fair Game” Gretchen Morgenson continues to unravel the failing process of “saving homes” while the world ignores the simple truth that legally the homes are in no jeopardy but for the pranks and illusions created by the pretender lenders.

  • There is no valid foreclosure, auction, mediation, modification, short-sale, satisfaction of mortgage, release and re-conveyance, or even settlement with a party to whom the money is not owed and a party owning no rights under the security instrument (the mortgage or deed of trust).

It is all an illusion given reality by repetition not by truth. It is fraud ignored by courts who naturally find it far more likely that a deadbeat homeowner is trying to trick the court than a world class bank or someone pretending to be an agent of a world class bank. But in the end, whether title moves by foreclosure or any of the procedures mentioned above, there is no clear title. There is clouded, fatally defective title and a settlement with a party lacking any power to even be in the room.

This is why I have maintained that lawyers err when they do not aggressively (on the front end despite the rules requiring mediation etc.) insist on proof of authority to represent and proof of agency and proof that a decision-maker is in the room. If those elements are not satisfied, there can be deal — only the appearance of a deal.It is entirely possible that not even the lawyer has authority to represent and that the lawyer has conflicts of interest when you make the challenge. If a lawyer asserts he represents a party you have a right to demand proof of that. I’ve seen dozens of cases unravel at just that point.

The foreclosure mills play musical chairs but they are forgetting that this fraud on the court may come back and haunt them with liability, discipline and even criminal charges. They keep their options open until they absolutely are forced to name a pretender lender. That lawyer standing in the room has generally spoken to nobody other than a secretary in his own firm. he doesn’t know the client, or any representative of the client. He or she presumed to be authorized to represent the client because the file was given to him or her.

Think I am kidding. Try it out on Deutsch Bank or U.S. Bank or BONY-Mellon. Demand that the lawyer produce incontrovertible proof that their client knows the case even exists and that this lawyer represents them.

From what I am seeing, this interrupts the flow of plausible deniability. Nobody high up in the food chain wants to come in and say they have personal knowledge or that they have anything to do with these foreclosures. They just want their monthly fee for pretending to be Trustee over a pool that was never created, much less funded. They will try to use affidavits from people who know nothing and who are probably not even employed by the “client.” Even if they are employed a quick inquiry will reveal that the signatory lacks authority to hire legal counsel and has no personal knowledge of the case.

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September 18, 2010

When Mortgage Mediation Is a Gamble

By GRETCHEN MORGENSON

NEVADA — one of the states where home prices went stratospheric during the housing mania — is now reporting some of the nation’s most horrifying foreclosure figures. Last week, RealtyTrac said that 1 in every 84 households in the state had received a foreclosure notice in August, 4.5 times the national average.

To mitigate this continuing disaster, the Nevada Assembly created a foreclosure mediation program last year. Intended to help keep families in their homes, the program brings together troubled borrowers and their lenders to negotiate resolutions.

The program began on July 1, 2009, and in its first year, 8,738 requests for mediation were received and 4,212 completed, according to the state’s Administrative Office of the Courts. Some 668 borrowers gave up their homes and 445 were foreclosed upon in the period.

“We are the only state that requires the bank to do something — they must come to the table if the homeowner elects mediation,” said Verise V. Campbell, who administers the program. “We are now touted as the No. 1 foreclosure mediation program around the country. The program is working.”

During its first year, 2,590 cases — more than 60 percent of completed mediations — resulted in agreements between borrower and lender, Ms. Campbell said. But when asked how many actually wound up assisting homeowners through permanent loan modifications, she said her office did not track that figure.

Most of these agreements, say lawyers who have worked in Nevada’s program, were probably for temporary modifications like those that have frustrated borrowers elsewhere — you know, the kind of plan that lasts only three months until the bank decides that the borrower does not qualify for a permanent modification.

Clearly, the Nevada program is superior to the White House’s Home Affordable Modification Program, where borrowers have trouble even reaching lenders by phone. Forcing banks to meet with borrowers is definitely a good step.

But some mediators who have participated in the Nevada program and some lawyers who represent borrowers in it say it has flaws that may give the banks an advantage over borrowers.

Patrick James Martin, a lawyer in Reno who is a certified public accountant and an arbitrator for the Financial Industry Regulatory Authority, was an early mediator in the program. In a recent letter to Nevada’s state court administrator, Mr. Martin expressed concern that the program favored lenders.

“I really felt the lenders didn’t have too much interest in having the program work,” Mr. Martin said in an interview. “A lawyer would show up for the lender with none of the documents required by the program. When they got into the mediation, they would call somebody in a bullpen someplace who had a computer handy and the borrower might or might not qualify for modification. No discussion, no negotiation.”

Mr. Martin said he no longer received cases to mediate.

Another experienced mediator, who declined to be identified because he feared reprisals, was removed from the system after he recommended sanctions for banks that did not meet their obligations under the program. These duties include showing up, bringing pertinent documents and having authority to negotiate with the borrower.

After this mediator made a petition for sanctions in a case this year, Ms. Campbell sent him and the other parties in the matter a letter saying that the recommendation was not a “valid Foreclosure Mediation Program document.” The letter, on Supreme Court of Nevada stationery, also stated that nothing in the law that established the mediation program “requires or permits a mediator to recommend specific sanctions.”

But the statute governing mediations in Nevada clearly specifies that if a lender does not participate in the mediation in good faith, by failing to appear, for example, “the mediator shall prepare and submit to the mediation administrator a petition and recommendation concerning the imposition of sanctions” against the lender. The court then has the power to issue sanctions, which can include forcing a loan modification.

Keith Tierney is a veteran real estate lawyer who was until recently a mediator in the program. He, too, stopped receiving mediation assignments after recommending sanctions against lenders in a number of cases. He said that a program official told him last week that he was no longer eligible because he issued a petition and recommendation for sanctions, even though that is what the law allows.

When asked why she believed that such recommendations were not allowed, Ms. Campbell said mediators who issued them were not following the program rules as interpreted by Nevada’s Supreme Court.

But Mr. Tierney said: “The statute trumps rules. Every attorney in the world knows that if a rule is in contradiction to a statute, the rule is null and void.”

Administering the program gives Ms. Campbell great power. She issues certificates allowing foreclosures to take place after mediations occur. And while she said such certificates were submitted only when mediators’ statements showed they should be, mistakes have happened.

ONE woman went through a mediation in which the lender didn’t provide necessary documents and the mediator noted it, according to legal documents. Under the rules, no certificate is supposed to be issued in such a circumstance, but shortly afterward, the borrower received notice of a trustee sale. Ms. Campbell’s office had issued a certificate allowing foreclosure; only by filing for bankruptcy could the borrower stop it.

Ms. Campbell said such problems were rare. The state doesn’t produce data that would allow her assertion to be verified.

Ms. Campbell is not a lawyer and is not a veteran of the housing or banking industries. Before overseeing the mediation program, she worked in the casino industry. She worked for a Chinese company developing a gambling property in Macau and was director of administration for the Cosmopolitan Resort and Casino in Las Vegas.

Ms. Campbell said that her position involved administrative duties, not legal insight, and that her experience overseeing large projects amply prepared her to manage the Nevada mediation program.

But David M. Crosby, the lawyer who represented the borrower whose case resulted in an erroneous foreclosure action, said significant questions remained about the program. Among them, he said, was the role that Ms. Campbell played in the process.

“Does she just do administrative stuff or does she make decisions?” he asked. “That doesn’t seem well decided.”


Filed under: bubble, CASES, CDO, CORRUPTION, Eviction, evidence, expert witness, foreclosure, foreclosure mill, GTC | Honor, HERS, investment banking, Investor, MODIFICATION, Mortgage, Motions, Pleading, securities fraud, Servicer, STATUTES, taxes, trustee | Tagged: , , , , , , , | 7 Comments »

IF THE GLOVE DOESN’T FIT, YOU MUST ACQUIT

Posted on April 23, 2010 by Neil Garfield

IF THE PRETENDER LENDER DOES NOT HAVE THE POWER, AUTHORITY, RIGHT TITLE OR INTEREST TO EXECUTE A SATISFACTION OF MORTGAGE, THEN THEY HAVE NO RIGHT TO FORECLOSE IT. HERE IS ARIZONA’S STATUTE ON SATISFACTION OF MORTGAGES: NOTE THE REFERENCES TO LOST NOTES VERSUS LOST MORTGAGES.

33-707. Acknowledgment of satisfaction; recording

A. If a mortgagee, trustee or person entitled to payment receives full satisfaction of a mortgage or deed of trust, he shall acknowledge satisfaction of the mortgage or deed of trust by delivering to the person making satisfaction or by recording a sufficient release or satisfaction of mortgage or deed of release and reconveyance of the deed of trust, which release, satisfaction of mortgage or deed of release and reconveyance shall contain the docket and page number or recording number of the mortgage or deed of trust. It shall not be necessary for the trustee to join in the acknowledgment or satisfaction, or in the release, satisfaction of mortgage or deed of release and reconveyance. The recorded release or satisfaction of mortgage or deed of release and reconveyance constitutes conclusive evidence of full or partial satisfaction and release of the mortgage or deed of trust in favor of purchasers and encumbrancers for value and without actual notice.

B. When a mortgage or deed of trust is satisfied by a release or satisfaction of mortgage or deed of release and reconveyance, except where the record of such deed of trust or mortgage has been destroyed or reduced to microfilm, the recorder shall record the release or satisfaction of the deed of trust or mortgage showing the book and page or recording number where the deed of trust or mortgage is recorded.

C. If the record of such mortgage or deed of trust has been destroyed and the record thereof reduced to microfilm, it shall be sufficient evidence of satisfaction of any such mortgage or deed of trust for the release or satisfaction of mortgage or deed of release and reconveyance to be recorded and indexed as such. The instrument shall sufficiently identify the mortgage or deed of trust by parties and by book and page or recording number of the official records. Such instrument shall be treated as a release or satisfaction of mortgage or deed of release and reconveyance and recorded.

D. If the note secured by a mortgage or deed of trust has been lost or destroyed, the assignee, mortgagee or beneficiary shall, before acknowledging satisfaction, make an affidavit that he is the lawful owner of the note and that it has been paid, but cannot be produced for the reason that it has been lost or destroyed, and the affidavit shall be recorded. If the record of such mortgage or deed of trust has been destroyed and the record thereof reduced to microfilm, such affidavit shall be recorded and indexed as releases, satisfactions of mortgage and deeds of release and reconveyance are recorded and indexed and shall have the same force and effect as a release or satisfaction of a mortgage or deed of release and reconveyance as provided in subsection A of this section.

E. If a full release or satisfaction of mortgage or deed of release and reconveyance of deed of trust that, according to its terms, recites that it secures an obligation having a stated indebtedness not greater than five hundred thousand dollars exclusive of interest, or a partial release or satisfaction of mortgage or partial deed of release and reconveyance of deed of trust that, according to its terms, recites that the payment required for the partial satisfaction or release does not exceed five hundred thousand dollars exclusive of interest, has not been executed and recorded pursuant to subsection A or C of this section within sixty days of full or partial satisfaction of the obligation secured by such mortgage or deed of trust, a title insurer as defined in section 20-1562 may prepare, execute and record a full or partial release or satisfaction of mortgage or deed of full or partial release and reconveyance of deed of trust. No earlier than sixty days after full or partial satisfaction and at least thirty days prior to the issuance and recording of any such release or satisfaction of mortgage or deed of release and reconveyance pursuant to this subsection, the title insurer shall mail by certified mail with postage prepaid, return receipt requested, to the mortgagee of record or to the trustee and beneficiary of record and their respective successors in interest of record at their last known address shown of record and to any persons who according to the records of the title insurer received payment of the obligation at the address shown in such records, a notice of its intention to release the mortgage or deed of trust accompanied by a copy of the release or satisfaction of mortgage or deed of release and reconveyance to be recorded which shall set forth:

1. The name of the beneficiary or mortgagee or any successors in interest of record of such mortgagee or beneficiary and, if known, the name of any servicing agent.

2. The name of the original mortgagor or trustor.

3. The name of the current record owner of the property and if the release or satisfaction of mortgage or deed of release and reconveyance is a partial release, the name of the current record owner of the parcel described in the partial release or satisfaction of mortgage or deed of partial release and reconveyance of deed of trust.

4. The recording reference to the deed of trust or mortgage.

5. The date and amount of payment, if known.

6. A statement that the title insurer has actual knowledge that the obligation secured by the mortgage or deed of trust has been paid in full, or if the release or satisfaction of mortgage or deed of release and reconveyance of deed of trust is a partial release, a statement that the title insurer has actual knowledge that the partial payment required for the release of the parcel described in the partial release or satisfaction has been paid.

F. The release or satisfaction of mortgage or release and reconveyance of deed of trust may be executed by a duly appointed attorney-in-fact of the title insurer, but such delegation shall not relieve the title insurer from any liability pursuant to this section.

G. A full or partial release or satisfaction of mortgage or deed of full or partial release and reconveyance of deed of trust issued pursuant to subsection E of this section shall be entitled to recordation and, when recorded, shall constitute a full or partial release or satisfaction of mortgage or deed of release and reconveyance of deed of trust issued pursuant to subsection A or C of this section.

H. Where an obligation secured by a deed of trust or mortgage was paid in full prior to September 21, 1991, and no release or satisfaction of mortgage or deed of release and reconveyance of deed of trust was issued and recorded by November 20, 1991, a release or satisfaction of mortgage or deed of release and reconveyance of deed of trust as provided for in subsection E of this section may be prepared and recorded without the notice prescribed by subsection E of this section.

I. A release or satisfaction of mortgage or a release and reconveyance of deed of trust by a title insurer under the provisions of subsection E of this section shall not constitute a defense nor release any person from compliance with subsections A through D of this section or from liability under section 33-712.

J. In addition to any other remedy provided by law, a title insurer preparing or recording the release and satisfaction of mortgage or the release and reconveyance of deed of trust pursuant to subsection E of this section shall be liable to any party for actual damage, including attorney fees, which any person may sustain by reason of the issuance and recording of the release and satisfaction of mortgage or release and reconveyance of deed of trust.

K. The title insurer shall not record a release and satisfaction of mortgage or release and reconveyance of deed of trust if, prior to the expiration of the thirty day period specified in subsection E of this section, the title insurer receives a notice from the mortgagee, trustee, beneficiary, holder or servicing agent which states that the mortgage or deed of trust continues to secure an obligation, or in the case of a partial release or satisfaction of mortgage or deed of partial release and reconveyance of deed of trust, a notice that states that the partial payment required to release the parcel described in the partial release or satisfaction has not been paid.

L. The title insurer may charge a reasonable fee to the owner of the land or other person requesting a release and satisfaction of mortgage or release and reconveyance of deed of trust for services, including but not limited to search of title, document preparation and mailing services rendered, and may in addition collect official fees.

Filed under: bubble, CDO, CORRUPTION, Eviction, foreclosure, GTC | Honor, Investor, Mortgage | Tagged: , , , , , , , , , , | 15 Comments »

Some stories don’t end well in this battle for justice — A Smiling Judge Refuses to Get it

Posted on November 26, 2009 by Neil Garfield

WHY WE ARE PLANNING 2-3 DAY BOOT-CAMPS AND MANUALS FOR LAWYERS, BOOT-CAMPS FOR FORENSIC ANALYSTS, AND BOOT-CAMPS FOR LAYMEN. IT’S JUST NOT AS SIMPLE AS YOU MAY WANT IT TO BE.

NOT EVERYTHING ENDS WELL. THE BATTLE IS ON. THIS JUDGE SAID THE ASSIGNMENT DOESN’T NEED TO BE RECORDED TO PROVE OWNERSHIP. HE’S TECHNICALLY RIGHT, BUT HIS CONCLUSION WAS WRONG. THIS IS WHY I KEEP SAYING THERE IS NO SILVER BULLET. The fact that an assignment is not recorded does not mean that it can’t be recorded — unless it is not executed in recordable form. If it isn’t executed in recordable form and it isn’t recorded then it violates the terms of the pooling and service agreement and the prospectus/indentures for the mortgage backed bond sold investors.

If the purported document violates the enabling documents then the assignment has not been accepted. If the assignment has not been accepted then there is no assignment. At best there is a conditional assignment which is clearly in violation of the the express terms of the enabling documents. The existence of the condition creates an issue of fact as to who really has the right to own, enforce and collect on the obligation, note and mortgage.

If there was no consideration for the “transfer? then there isn’t even an equitable argument for why the pretender lender should be allowed to foreclose. They have nothing to lose by the alleged default and obviously don’t even know if there is a default in the OBLIGATION that was FUNDED with ADVANCED MONEY by INVESTORS.

But you see, this Judge was already predisposed to not giving the “borrower” a free house. He/She needs to be coddled and led along the path of education so he/she understands that the “borrower” is actually an investor who purchased a financial loan product subject to terms and duties which were breached by all the people in the securitization chain. The “lender” is the investor who advanced the money and is not in court.

The pretender lender is using bluff and fraud to get their share of the great American pie at the homeowner’s expense, depriving the homeowner of the knowledge of the identity of the true lender, the ability to settle out of court with the true lender, the ability to comply with federal law in seeking modification, short-sale, refinance or even payoff because the pretender lender in Court in Florida doesn’t even have the right, power, authority or justification to execute a satisfaction of mortgage.

If they don’t have the power to execute a satisfaction of mortgage then how could they have the power to foreclose?

The problem with this case is that the homeowners should be aggressive but not to try to convince the Judge why he/she should get a free house. You must align yourself with the Judge’s basic sense of fairness and basic mistrust of legal maneuvering to get out of a legally owed debt. By focusing your aggression on discovery, enforcement of the QWR and/or DVL, asking for the name of the true lender and the production of documents and names, addresses and phone numbers of people who can testify under oath, you present the Judge with something he cannot or should not refuse and that any appellate court would reverse him on. You are asking for discovery to test the merits of the pretender lender’s allegation or position that they have the right to enforce the note, that they are the party to whom the obligation is owed, that they are a creditor in the sense that they advanced money which they will lose if they don’t get to enforce the note and obligation, and that therefore they are the beneficiary of the terms of the the mortgage that secures the alleged debt.

If you go into court spouting securitization theories it is very easy to say you haven’t convinced the Judge. If you go in demanding an evidentiary hearing based upon the rules of evidence and founded on common discovery and enforcement in obtaining relevant information about your loan, and seeking an accounting from those people, entities or parties that were participants in the securitization chain, then you are only asking for a COMPLETE accounting so that you discover what undisclosed fees were paid under TILA and RESPA, and the true identities of the people involved in your table-funded loan.

I’m sorry for your result Mr Fitzgerald, but perhaps with the aid of competent, licensed, local counsel you can move for rehearing, file a bankruptcy that will stay the proceedings, and/or appeal.

Author : L.Fitzgerald
Comment:
” Happy Thanksgiving …give thanks to all the Blessings you have……he said,

and don’t complaint of the things you don’t have..”

“I’ll be eating turkey with my ” kids ” tomorrow “…he happily remarked .

With a smile on his face ..this Orlando 9 th Judicial Circuit

Court .. Judge…denied my motion to vacate judgment , and

allowed my house to be sold on Jan. 2010.

We became a ” potential homelessness couple.”… .the day

before Thanksgiving..

He was very kind to a Wall Street Bankster [ plaintiff ]..he gave away my only home ….

During this hearing ..one of my main arguments ..

was the Plaintiff’s lack of recorded Assignments ..and chain of

Title .. [ The Bankster is not my original lender..].

The smiling Judge made this comment ..that shocked us …

” Florida law does not require Assignments to be recorded…

…to prove the Plaintiff’s ownership…!!.

Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud | Tagged: , , , , , , , , , , , , , , , , , , , , | 42 Comments »

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