GOOD PLEADINGS: FAGAN V WELLS FARGO ET AL

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Suit Filed Incorporating Agency Sanctions and Consent Decrees from Last Week

“And most importantly, Fagan goes again to the heart of the securitization illusion, the falsity of the presentations made to both investor-lenders and homeowners, and the manner in which the “fair market value” was intentionally misstated to justify the inflation of the “value” of the bogus mortgage bonds sold to investor lenders. The importance of this attack cannot be overstated — because it debunks, once and for all, the myth that greedy unscrupulous borrowers caused this mess. It states unequivocally that the value of the property was intentionally overstated to induce Fagan and millions of other borrowers in more than 80 million “loan” transactions to assume that the value of the property was worth far more than the value of the loan product they were purchasing from the mortgage broker and mortgage originator. Neither the investor-lender nor the homeowner would have even considered the possibility of entering into this transaction without the value of the property being real — as the ultimate protection for the investor-lender and the homeowner. This is why the reduction of principal is no gift. It is merely a correction that is due to BOTH the investor-lender and the borrower.”

Barry Fagan v Wells Fargo Bank SC112044 OBJECTION TO DISCLAIMER AND DECLARATION OF NON-MONETARY STATUS OF T.D

Barry S. Fagan v Wells fargo Bank Complaint with Exhibits-1

Barry Fagan v Wells Fargo Bank SC112044 REQUEST FOR JUDICIAL NOTICE OCC CONSENT ORDER & PROOF OF SERVICE 4 21 2011

  1. The first thing that is important to note is the identity of the defendants sued by Fagan: Besides Wells Fargo, he names American Securities Company, T.D. Service Company and Ebert Appraisal Service Inc. He thus sets the stage for attacking the reality of the transaction he was tricked into. Naming the Service Company and the Appraisal Company is different from what most people are doing and he really pursues both them and the service company that initiated the foreclosure proceeding.
  2. The second thing of importance is the filing of the objection to disclaimer of non-monetary status of T.D. Service. This is the first time I have seen someone “get it” and realize that T.D. or any company that initiates foreclosures is probably controlled by one of the Wall Street bankruptcy remote shells, and is NOT a party without an interest in the outcome. That is why we see substitutions of trustee every time there is a foreclosure. Why is that necessary — precisely because, as Fagan points out, that an arm’s length company with no interest in the proceeding would never do what T.D. is doing because of the potential exposure to liability — and because T.D. and others like it are siphoning off the money that could otherwise go to the investor-lenders.
  3. As I  have repeatedly said, the consensus of lawyers is that without objecting to EVERYTHING you are conceding that there might be a shred of legitimacy to what is clearly a completely fraudulent claim, fraudulent foreclosure on a fraudulent mortgage securing a fraudulent note. Fagan accuses TD of proceeding despite their knowledge that Wells Fargo was not the creditor, not the real party in interest, lacked standing, had no money in the deal, was not the lender and never purchased the receivable.
  4. In addition Fagan, obviously knowledgeable about the actual procedures in use, thrusts his litigation dagger into the heart of the matter by alleging that the person signing the papers, besides lacking authority, lacked any knowledge of the transaction, and had no way of knowing the identity of the real creditor except that Wells Fargo is plainly eliminated as a real creditor.
  5. Lastly, Fagan attacks at the Achilles heal of the securitization illusion: that the transaction occurred between the borrower and an undisclosed creditor, that the closing documents reflected none of the realities of the real transaction, and that no attempt was made to conform to the the requirements of the pooling and service agreement regarding the transfer of the receivable, the note (fatally defective anyway) and deed of trust (fatally defective anyway). He specifically names for example that the alleged assignments, even putting all the defects in the instrument itself aside, is executed far past the cut-off date stated in the pooling and service agreement. This creates a double violation of the PSA, to wit: that the assignment needs to be recorded or in recordable form within 90 days of the creation of the pool, and the “asset” must consist of a rel asset meaning one that is performing and not in default.
  6. Any reasonable person can understand that the rules accepted by the investor-lenders were that they would be receiving performing loans complying (as per the PSA) with industry standard underwriting guidelines, and within the time periods prescribed by the PSA. Otherwise the investor-lender has advanced money for nothing, which is why they are now all suing the investment banks and NONE of the investors is making any claims against the homeowners; in fact the investors are alleging the mortgages were bad from the beginning and are unenforceable. SO we have the actual lender agreeing with the actual borrower that the real transaction is not the reference point of the closing documents and therefore the closing documents are merely part of an illusion of underwriting mortgages and securitizing them, neither of which actually occurred. 
  7. The next thing to note is that Fagan filed a verified complaint — requiring in California, a verified response. This  puts the other side at jeopardy for perjury prosecution because if Fagan is right, and I am sure he is, none of these parties can file a verified response which would require the signature of a competent witness. A competent witness is one who takes an oath, has personal knowledge through his/her own senses of the facts or statements alleged, has personal recollection of those facts and is able to communicate that knowledge. 
  8. Fagan also includes a compelling argument and pleading for quiet title that I recommend reading and using for those in like situations.
  9. And most importantly, Fagan goes again to the heart of the securitization illusion, the falsity of the presentations made to both investor-lenders and homeowners, and the manner in which the “fair market value” was intentionally misstated to justify the inflation of the “value” of the bogus mortgage bonds sold to investor lenders. The importance of this attack cannot be overstated — because it debunks, once and for all, the myth that greedy unscrupulous borrowers caused this mess. It states unequivocally that the value of the property was intentionally overstated to induce Fagan and millions of other borrowers in more than 80 million “loan” transactions to assume that the value of the property was worth far more than the value of the loan product they were purchasing from the mortgage broker and mortgage originator. Neither the investor-lender nor the homeowner would have even considered the possibility of entering into this transaction without the value of the property being real — as the ultimate protection for the investor-lender and the homeowner. This is why the reduction of principal is no gift. It is merely a correction that is due to BOTH the investor-lender and the borrower.
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17 Responses

  1. The most difficult thing to do is foreclose outside a robust market. It cannot be done – but continues to happen . Our lawyers should be ashamed of themselves.

    This is a case i live for. JPM Chase Bank is foreclosing as the “assignee” / succcessor to Chase Finance LLC . JPM Chase Bank is the acceptance, settlement , source and use and “Name on the Promissory Note ”

    Its common to make a note payable to the makers order. In such a case the payee could not bring an action against himself ….as maker. But in repsect to form, the note is valid and if tranferred to a second person the instrument becomes enforcable as an obligation. Upon a transfer to a thrid person , the acceptance becomes operative.

    Prima facie evidence of a fact, is in law sufficient to establish the fact, unless rebutted. For example, when buildings are fired by sparks emitted from a locomotive engine passing along the road, it is prima facie evidence of negligence on the part of those who have the charge of it.

    Make it a great day –

    M.Soliman
    expert.witness@live.com

  2. No — there were no funds to begin with

    Ahhh SO where did the capitalization come from for Investors capital account?
    Are you talking about substitution?

    Quick, come on …no researching ..

  3. Understanding Issues & Vulnerability.
    What Counsel should know and must get.

    The Deed is security to the Note for enforceability
    The security is not the Deed . . . Know the difference.

    If I was the lender, this would be a deal killer in a court of law

    M.Soliman
    expert.witness@live.com

  4. Gary H and THE A MAN

    Co-mingling? No — there were no funds to begin with — refinance of charge-off debt (likely false charge-off debt) — no funds necessary — no funds necessary for COLLECTION RIGHTS to charge-off debt. Only funds necessary were for dollar amount financed ABOVE the charged-off debt for the false refinance.

    This is why trusts were – in effect —- “NO FUNDING (or limited funding) NECESSARY”

    But — charge you full price for a fabricated refinance?? You betcha. YSP — and all.

    This applies to subprime financing only — and not to loans that were funded outside of subprime — and to loans that defaulted AFTER financial crisis — due to unemployment that was a RESULT of the financial crisis fraudulent fiasco. That is a different egregious issue altogether.

    And, then there are those who cannot refinance their fraudulent loans — because banks have shut down refinancing. So these fraudulent loans will also likely go into foreclosure.

    And, when does the US Government say — ENOUGH IS ENOUGH??? Only when they get out of the business of protecting banks and deregulated entities. Too much government??? Yes — because they are protecting the very perpetrators of the fraud. Tea-party advocates have it backwards. Need to shut down fraud first — then get government out of protectionism business for the banks and deregulated entities.

    But, and I state strongly, without a major disclosure of the real fraud — we will continue as is — a constant and chronic battle in courts. Even some wins will not be enough.

    We need mass exposure of the fraud — those that are willing to fight without fear of losing in court in for themselves. We need those in the know to step up to plate for those who cannot afford to defend themselves. And, this cannot be a class action that will benefit the attorneys only.

    We need more. And, to those who I know will dispute this — you can make a lot of money if you are willing to pursue on a grand scale. If you have the goods — use them. Join forces. You need to trump the power.

  5. @ The A Man,

    ” Co Mingling of Funds is involved”…..true but Not entirerly so in Law!

    The Co-mingling mentioned goes deeper…..and deals with “Land Rights” vs. “Securitized Origination and Lending” on the part of Wall Street using subtefuge and fraud for gain of an asset!

  6. It is all in the chain of title. Period. Appraisal fraud etc… is just the Appetizer and Dessert. Once the Chain of Title is broken.

    Co Mingling of Funds is involved. Then the Judge can say that you dont owe the money because

    a. you dont know to who
    b. if the loan was sold multiple times the Servicer has unjust enrichment etc……

    NEVER AGAIN
    BE STRONG AND COURAGEOUS

  7. Can someone explain where to find the filing of the disclaimer of non-monetary status? Is this normally located in a specific place or is it in the civil code, as I am still unclear on this

    Thanks!

  8. Brian, this is Barry Fagan. Please feel free to email me directly at pendinglawsuit@yahoo.com.

  9. thanks for the totally random cut and paste there M.Soliman…

  10. PERSONAL JURISDICTION
    M.Soliman
    A party who propounds discovery demands makes a general appearance (Creed v. Schultz (1983) 148 Cal.App.3d 733, 740), as does one who
    moves for summary judgment before filing an answer. (Wilson v. Barry (1951) 102 Cal.App.2d 778, 781.)
    The trial court recognized,the rule in California that a party waives any objection to the court’s exercise of personal jurisdiction when the party makes a general appearance in the action. (See 2 Witkin, Cal. Procedure (4th ed. 1996) Jurisdiction, § 190, p. 756.)

    The answer, of course, is such an appearance, as is expressly made clear by section 1014: “A defendant appears in an action when the defendant answers, demurs, [or] files a notice of motion to strike. . . .” A defendant who has not yet answered has been held to have made a general appearance–that is, to have conceded the jurisdiction of the court–if he invokes the authority of the court on his behalf, or affirmatively seeks relief.

    A party who propounds discovery demands makes a general appearance (Creed v. Schultz (1983) 148 Cal.App.3d 733, 740), as does one who
    moves for summary judgment before filing an answer. (Wilson v. Barry (1951) 102 Cal.App.2d 778, 781.)

  11. Thank You Barry Fagan and Neil for posting this.

  12. Mr. Fagan, please contact Neil to get my email. I have some things from T.D. Service and WF for you. Their attorney admits they regularly forge documents for NJF and that it has been a multi year practice of WF/TDSC and at least this “one” attorney.

  13. @tnharry

    Thanks.

    Let’s just say there is a REASON that the ‘Lender’ was not used to name a substitute trustee.

    I agree that the ORIGINAL trustee is one that is supposedly NEUTRAL (if ReconTrust is really neutral since BofA owns them) but the replacement in my document is QUALITY, a company that is obviously in the banksters employ.

  14. @enough – then why did you buy the house if you had all those issues and questions about the appraisal and transaction?

    @concerned – good analysis on the sub of trustee issue. must have the property party making the appointment. too much discussion often goes into the trustee itself. the trustee in most non-judicial states is an attorney or law firm with no personal interest in the foreclosure, contrary to what is often mentioned on this blog or others

  15. I wonder if Fagan has looked at the clause in his Deed of Trust that controls the Substitution of Trustee? I did not look at the complete pleading, just the overview here from Neil.

    In my own “America’s Wholesale Lender – A Corporation” Deed of Trust, that ability to change the Trustee by issuing a ‘substitution of trustee’ is SPECIFICALLY ADDRESSED in clause # 24 (on page 14 of 16).

    “24. Substitution of Trustee. Lender, at its option, may from time to time appoint a successor trustee to any Trustee appointed hereunder by an instrument executed and acknowledged by Lender and recorded in the office of the Recorder of the county in which the Property is located. The instrument shall contain the name of the original Lender, Trustee and Borrower, the book and page where this Security Instrument is recorded and the name and address of the successor trustee. Without conveyance of the Property, the successor trustee shall succeed to all the title, powers and duties conferred upon the Trustee herein and by Applicable Law. This procedure for substitution of trustee shall govern to the exclusion of all other provisions for substitution. ”

    Did you notice that the Lender is not saying ANYTHING that would allow their ‘buddy’ MERS to do the ditty for the LENDER? Did you notice it says LENDER is the one that can name a new Trustee, NOT THE BENEFICIARY?

    My own recorded “Substitution of Trustee” was signed simply over the “MORTGAGE ELECTRONIC REGISTRATION SYSTEMS” citation, not as a ‘nominee’ for AWL, but using MERS role as the BENEFICIARY. The person signing is a Litton employee, BTW.

    The text of that questionable document very clearly states that the ‘signor’ is the present Beneficiary. It even states that this substitution is “in the manner provided for in said Deed of Trust”. Croak, feels like a fish-bone stuck in my throat.

    Do you notice also that the DOT did not even state anything about the substitution document needing to recite WHO the original beneficiary was? My mischievous pals at Litton decided to switch naming the original LENDER for the original Beneficiary. They, in fact, only reference AWL when they are describing MERS, Inc’s roll as nominee, being the original Beneficiary.

    Do you noticed that the DOT clearly states the ‘Original LENDER’ is to be named in the substitution document? My pals at Litton did NOT name the ‘Original Lender’ role in their sham version of a substitution of trustee document.

    Is the trustee that Litton named as the substitute in any trouble generating the NOD, NOS and setting all these sale dates? Obviously I believe Litton has to be VERY aware of how they deviated from the Deed of Trust clause.

  16. its about time. I have been comvinced that this is all appraisal fraud. every agnecy was not denying it but lts say , leaving that tidbit out, because most of us 80 million know it was. i was told by my real esate agent 5 years ago that bad things were happeniing. he told me in one subdivision in the ocunty straw buying was going on. didnt know back then about straw buying, didnt know each sale effected the next. my appraisal has a straw buy built right in. you would think wells fargo would have throne this Comparible out it was lower then the oth 2. it was either robo read or done on purpose because the other2 comparible properties getthis were the “same price” 280k. i was buying for 260k so the appraiser couldnt come in at 280 he had to do the math and come in at 270 so it looked like i was buying below property value. right. on the appraisal it says. “house on th MLS at 225k for 51 days. then sold for 245.” who in the heck would buy a house for 20k more. then to make matters even worse the appraiser added another 19k to the 245k to make the house as a comparible be worth more money. i think he should hvae started with the original 225k not the 245k then my house appraisal would have been lower then 260. oh thats right we oculdnt do that the appraiser owuld lose his job. OK then

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