Table of Contents of 2nd Edition of Attorney Workbook

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Editor’s Comment:

Table of Contents- WHOSE LIEN IS IT ANYWAY

WHOSE LIEN IS IT ANYWAY? 

Real Property, Mortgages and Foreclosures

Post-Securitization 

 A treatise, practice manual and forms for litigation of claims relating to claims relating to securitized loans

 By Neil F Garfield, Esq. MBA, JD

Author and Editor of livinglies.wordpress.com

Published by GTC|Honors[1]
Disclaimer

IMPORTANT: The information presented in this workshop is general information and is not specific advice on the law of any state other than Florida.

No decision or action should be undertaken strictly on the basis of the information in this workbook or in the presentation without first consulting a licensed competent attorney in YOUR community or where your property is located.

The accuracy of the information is not guaranteed. State laws vary, and local rules vary from state to state and county to county. The style of pleadings, and the rules of when and how to file objections, motions, pleadings and discovery varies from state to state as well.

The presenters do not purport to know the rules and laws of all 50 states.

The purpose of this presentation is to provide you with informational guidelines about cases and situations OTHER than your own, and what that COULD mean in your case.

You should not use this workbook or this workshop as a basis for advising anyone other than within a jurisdiction in which you licensed to practice law, as it probably would be otherwise considered the Unauthorized Practice of Law (UPL). UPL is a crime in most states and carries substantial penalties and the risk of imprisonment.


TABLE OF CONTENTS

TITLE PAGE
About the Author 5
Arizona Mortgage Fraud Statute 9
Practice Materials Available 12
Forward: Prospects for the Housing Market 13

FALSE CREDIT BID AS RACKETEERING
16
DIAGRAM: GENERAL PLAN OF ENGAGEMENT 19
DIAGRAM: SINGLE TRANSACTION 20
DIAGRAM SPECIFIC PLAN OF ENGAGEMENT 21
DIAGRAM: WIN AT THE BEGINNING NOT IN THE END 21
DEDICATION 22
GENERIC COMPUTATION OF DAMAGES AND CLAIMS OF BORROWER 24
NARRATIVE: SINGLE TRANSACTION AND STEP TRANSACTION DOCTRINE 25
      BINDING COMMITMENT TEST 26
      SELLING FORWARD PRESUMES SECURITIZATION 26
      END RESULTS TEST 26
      INTERDEPENDENCE TEST 27
NARRATIVE: DEMAND FOR ADMINISTRATIVE HEARING 29
DIAGRAM FIGURE 1: THE MONEY TRAIL 31
DIAGRAM FIGURE 2: THE MONEY TRAIL AND DEFENSE OF PAYMENT IN FULL 32
DIAGRAM FIGURE 3: STRUCTURE OF SPECIAL PURPOSE VEHICLE AND APPLICABLE LAWS 33
DIAGRAM FIGURE 4: RISK AND LOSS MITIGATION 34
DIAGRAM FIGURE 5: TRANCHE STRUCTURE AND BURDEN OF PROOF 35
OUTLINE: AFFIRMATIVE DEFENSES AND COUNTERCLAIMS 36
RELATED SOURCES OF INFORMATION AND DEFINITION OF TERMS 37
INTRODUCTION — GETTING STARTED 39
      HISTORY 41
     INSTITUTIONALIZING WRONGFUL FORECLOSURES 45
     SHOW ME THE MONEY 49
      PATTERNS OF LENDING 50
CATEGORIES OF LOANS 52
     THE ACADEMIC SECURITIZATION MODEL AS MYTH 52
     THE TRADITIONAL HOME MORTGAGE LOAN 54
     THE ACADEMIC “SECURITIZATION” MODEL WITH ERRORS 54
     THE MYTHOLOGICAL “SECURITIZATION” MODEL 55
     NOTES FROM THE UNDERGROUND 58
     THE NEED FOR A FULL ACCOUNTING 61
TAKING CONTROL OF THE NARRATIVE 65
     PRACTICE POINTERS 65
OBJECTIONS AND PRESERVING YOUR RIGHTS ON APPEAL 67
     OBJECTIONS BASED UPON FOUNDATION, HEARSAY ETC. 69
GLOP: THE STORY OF HOW CRAZY THE AMERICAN ECONOMY AND POLITICS CAN GET 74
STANDARD MORTGAGE TRANSACTION AND FORECLOSURE — No power of sale, no securitization, no MERS 77
     PRACTICE POINTERS 84
CASE EXAMPLES OF FORECLOSURES PRODUCING THE WRONG RESULTS     PRACTICE POINTERS — Association Foreclosures 85
RECORDING, MERS AND AUCTIONS 88
FROM THE CONSUMER FINANCIAL PROTECTION BOARD (ALL PARTIES IN SECURITIZATION CHAIN HAVE RESPONSIBILITIES OF BANKS AND SERVICERS) 91
STANDARD MORTGAGE TRANSACTION AND FORECLOSURE — Power of Sale, No Securitization, No MERS (NON-JUDICIAL) 93
PRACTICE POINTERS 105
2008 Legal Memo at BKR Conference: Lying About Ownership 107
HOMEOWNERS MAY SEE VALUE RESTORED AS BANKS PAY FOR SIGNATURES 111
NON-STANDARD MORTGAGE TRANSACTION AND FORECLOSURE — Power of Sale, With Securitization Claims, No MERS (NON-JUDICIAL)[2] 113
PRACTICE POINTERS 128
SECURITIZATION ACADEMIC MODEL 130
EFFECT OF ACADEMIC MODEL OF SECURITIZATION 137
Manhattan U.S. Attorney Recovers $202.3 Million From Deutsche Bank 139
HOA LIABILITIES 141
PRACTICE POINTERS 141
NON-STANDARD MORTGAGE TRANSACTION AND FORECLOSURE — Power of Sale, With Securitization Claims, MERS (NON-JUDICIAL) 144
PRACTICE POINTERS 164
SECURITIZATION ACADEMIC MODEL: 166
EFFECT OF ACADEMIC MODEL OF SECURITIZATION: 173
ALLONGES, ASSIGNMENTS AND INDORSEMENTS 220
ALLONGE 220
ASSIGNMENTS 221
INDORSEMENTS AND ENDORSEMENTS 223
VALIDITY OF THE SECURITIZATION CHAIN: WERE THERE ANY REAL TRANSFERS FOR VALUE OR WERE THE ASSIGNMENTS, ALLONGES, INDORSEMENTS ETC MERELY A SHAM? 225
SAN FRANCISCO STUDY

CORRUPTION OF CHAIN OF TITLE BY STRANGERS TO LOAN ORIGINATIONS AND FORECLOSURE TRANSACTIONS

229
BANKRUPTCY AND FEDERAL JURISDICTIONAL ISSUES 251
TABLE OF AUTHORITIES 257
CREDIT BID SHAM 295
National Notary Association to take Up Issue of  Forgery, Robosigning and attesting to authority in corporate capacity 297
FIDUCIARY LIABILITY 298
DEFINITIONS AND BASIC REQUIRED ELEMENTS OF LOAN 300
SHORT SALES OR REO SALES IN CHAIN OF TITLE MAY OR MAY NOT EXIST 329
HOME MORTGAGE DISCLOSURE ACT 330
MERS 336
APR 340
Protecting Tenants at Foreclosure Act of 2009 415
REAL ESTATE SETTLEMENT PROCEDURES ACT 417
USURY 443
FORCING MODIFICATION 459
Glossary and Guidelines 462
CONTACT AUTHOR: INFO@LIVINGLIES.BLOG.COM

 


[1] Copyright Neil F Garfield 2012

[2] With two exceptions, the comments relating to non-judicial foreclosures also apply to judicial foreclosures. The first of the two exceptions are that the Notice of sale is executed by a “substituted trustee” in a non-judicial sale instead of a judge in a judicial sale. The second is that the sale is conducted by the “trustee” (who is under current practice a controlled party of the “new” creditor). Thus I have removed sections dealing exclusively with judicial foreclosures as they are now a subset of non-judicial foreclosures.

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Objections and Preserving Your Rights on Appeal: From, Whose Lien Is It Anyway? by Neil F Garfield

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Editor’s Comment:

Foreclosure cases are won or lost on procedure more than on the merits of the case offered by either side. Lawyer and especially pro se litigants tend to use the right of appeal, as though it was a vehicle for entertaining evidence, objections or motions that should have been made. These make up a large percentage of the 85% of cases that are affirmed on appeal.[1]

The appellate court rarely has even the power to consider affidavits or other evidence that was not proffered and which does not show up on the record on appeal sent by the clerk of the court on the “trial” level. The appellate court is limited to what DID happen and not what SHOULD have happened. If the matter was properly raised in the lower court, then the matter may be considered by the appellate court. If not, then they must simply state that the grounds for appeal were not properly preserved for appeal and affirm the decision of the lower court Judge.

In foreclosure cases, most of the objections that should be made are known in advance and quite probably should be brought or offered as a motion in limine before the actual hearing, so that the complete focus of the court is on the issue that  would be presented by opposing counsel  and the objections raised by the borrower homeowner. In those cases, where the objections are known in advance, you should not only state that you have an objection, but the state the reasons for your objection and include a memorandum of law on the point, complete with copies of the most relevant cases.

Most of the errors that I see on the trial court level amounts to denial of due process in that the Court refuses to hear the merits or to allow the parties to conduct discovery. If that is the case in your case, you should mention it even though it is “fundamental error” that the appellate court could hear even without raising the objection contemporaneously with the subject of your objection.

This assures (along with the transcription from a court reporter) that everything about that objection was stated, presented and denied, if such is the case. It might also alert the Judge that you are ready to make such an appeal. If the objection is procedural relating to whether a proper foundation has been laid for the introduction of evidence, or whether the Court is accepting the proffer of counsel without any evidence in the record to support it, then you must make that point clearly and with support from citations in your own state. If the court refuses to hear the objections in limine then you still have the matters raised as part of the court record but you must raise the objection in the hearing or you might well have waived them unless your main point (ill advised) is that the court abused its discretion in denying the motion in limine without hearing it on the merits.

In every case I have seen reversed on appeal, there was something in the record that contradicted or nothing in the record that supported the position taken on appeal.

There are no magic words or bullets on objections. What is necessary is that you state it, without rambling on tangent subjects, with sufficient specificity so that the appellate court will understand in a flash what your objection related to, and what grounds and what law upon which you were relying. Do not combine objections. If you have more than one then state that you have 2 or more objections and proceed with the first.

The mistake I see in appeals and trial proceedings is that the attorney for the homeowner borrower remains silent while opposing counsel states facts that are not in the record (because there has not been an adversary proceeding and that you deny those facts, as they are in issue between the two sides). In many cases the Judge takes silence as a concession that the facts are true as stated and that your defense relates to something other than contesting the facts being proffered by opposing counsel.

The appellate court might agree, particularly if you are not clear in immediately identifying the fact that there was a real transaction in which money exchanged hands and then another event which involved the signing of papers but in which there was no actual transaction. The fact that the borrower believed the papers to be true while everyone else knew they were not, cannot now be used to further the fraud upon your client.

____________________

[1] It has been pointed out by some bankruptcy court judges that out of the three possibilities for appeal of a bankruptcy court ruling, petitioners and their counsel usually bypass the appeal laterally to the sitting District Court Judge charged with hearing civil cases with Federal jurisdiction and with hearing appeals from decisions made in the bankruptcy court. Sources tell us that the percentage of reversals and remand is possibly as high as 50% when brought to the District Judge rather than the BAP or Circuit Court of Appeals.

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