Danielle Kelley appears on tonight’s member teleconference

At 6 PM Eastern daylight Time I will host the twice monthly teleconference for members of the living lies blog. We are going to start adding guests more frequently than we had done in the past. Tonight we have Danielle Kelley who is an attorney in Tallahassee Florida and has been frequently quoted in mainstream media over the last few days regarding corruption of the modification process for mortgage loans under HAMP and other programs. She is also challenging foreclosures resulting from alleged “defaults” that only occurred because the bank or its representative told the borrower that they must stop paying if they want to be considered for a modification. It is a trick that has landed many people in foreclosure instead of modification.

Danielle Kelley is a partner in the law firm of Garfield, Gwaltney,  Kelley and White  with offices in Tallahassee and Fort Lauderdale.

The teleconference is only for paying members of the blog. If you have not recently updated your credit card information with our Internet store you should do so now.

Questions submitted by email will get preference over questions that are presented orally. The format for tonight’s short monologue by me, an interview of Danielle Kelley,  and then questions and answers.

As always we caution you not to use the information on tonight’s program as advice on your case even if it is in Florida where we are licensed. Small details changing the fact pattern of each case would very likely change the tactics or strategy and certainly change the advice given to any client. Before you act or decide not to act based upon something you heard on our program or that you read on our blog you should first consult with a licensed attorney who is practicing in the geographical area and jurisdiction in which the property is located.

Bank of America employees admit they lied to foreclosure victims
http://www.allvoices.com/contributed-news/14814391-bank-of-america-employees-admit-they-lied-to-foreclosure-victims

Ex-BofA employees say they delayed mortgage help, received bonus for foreclosures
http://www.bizjournals.com/charlotte/blog/bank_notes/2013/06/ex-bofa-employees-say-they-delayed.html

Waters Asks for Investigation into B of A Foreclosure Tactics
http://www.americanbanker.com/issues/178_117/waters-asks-for-investigation-into-bofa-foreclosure-tactics-1059962-1.html

Where did all that money go? Why Citi Wants to Rack Up US Taxes
http://www.cnbc.com/id/100823752
UK parliamentarians call for ‘reckless’ bankers to face jail
http://uk.reuters.com/article/2013/06/19/uk-britain-banks-idUKBRE95H1FB20130619

 

New Florida Law: Hurry Up and Wait?

As most lawyers will probably tell you, the new Florida law changes the procedure and frankly contradicts the Rules of Civil Procedure issued by the Florida Supreme Court. In all events foreclosure defense attorneys should move quickly to issue discovery requests and subpoenas in anticipation of the application of this law. The good news is that you have a powerful argument for requiring expedited discovery in view of the fact that the judge can issue a final judgment as early as 20 days after the filing of the lawsuit for foreclosure. The bad news is that the new law seems to eliminate or at least infringe on your right to file a motion to dismiss as set forth in the Florida Rules of Civil Procedure.

The new law contains elements that are difficult to decipher.  The new law puts a burden on the borrower to show a genuine issue of material fact that would eliminate the possibility of a summary judgment in favor of the party who filed the lawsuit. In essence, the new law is in conflict with the Florida Rules of Civil Procedure in that an answer and affirmative defenses is only due after disposition of a motion to dismiss, which is a matter of right under the rules in Florida and every other state. I would imagine the Florida Supreme Court will, as it has done before, jealously guarded its right to issue rules of procedure and that this law will eventually be struck down. Meanwhile we have to treat it as the law of the state.

On the flip-side, the law requires proof of ownership of the loan  before the burden shifts to the borrower. But the proof of ownership is in the form of copies of documents which the banks have already shown they are very willing to fabricate and forge. In essence, the new procedure passed by the legislature turns the law on its head, to wit: at this stage in litigation the allegations of the plaintiff are taken as true only for procedural purposes and not for the purpose of entering final judgment without a hearing and without an opportunity to conduct discovery and otherwise cross-examine witnesses and challenge documents. it is a not-so-clever way of abridging the due process rights of everyone in the state and as a precedent in other matters would undoubtedly lead to disaster, but for my supreme confidence that the Florida Supreme Court will treat this as a no-brainer and strike down the law.

Thus the new law is as close to changing Florida to a nonjudicial state as you can get without actually doing it. I would suggest that in order to preserve your procedural and constitutional rights for your clients that you file an immediate motion to dismiss to be heard on an emergency basis where a motion to dismiss is appropriate or proper (which appears to be in nearly all cases).

I would further suggest that in addition to issuing requests for discovery (which under normal rules would be due after the hearing where the judge rules on whether the borrower has raised any material issues of fact, which is a further conflict with the Florida Rules of Civil Procedure as promulgated by the Florida Supreme Court) that you file an emergency motion to expedite discovery.

And lastly I would insist that the hearing on whether the borrower can raise issues of material fact (keeping in mind that the borrower is not even been given a chance to raise those issues without waiving the borrowers right to file a motion to dismiss) must be an evidentiary hearing conforming with the rules of evidence.

As a final note to my remarks on this law, I believe it is incumbent upon the attorney for any client that has been actually affected by this law to bring the matter up directly to Florida Supreme Court. It is difficult for me to imagine any scenario under which the court would uphold this law — simply on the grounds of who has authority to enact rules of civil procedure. The Florida Constitution gives that power to the Florida Supreme Court — not the legislator or the governor. Speaking personally, I intend to follow the rules of appellate procedure on behalf of clients instead of making them up to suit me or my client. That at least is a good starting point.

As a general remark on many of the issues of our day, I think it would be a good  idea to start with the contents of the state Constitution and the United States Constitution before passing any laws pretending as though the Constitution did not exist. The Constitution is the supreme law of the land. If you don’t like what it says, there is a provision for amendment. Without the amendment, the law is whatever the Constitution says it is. That is what is meant by a nation of laws as opposed to a nation of men. This latest law from the legislature signed by Gov. Scott is an example of mindless pandering to the banks who are contributing to the campaigns of the legislators and officers of government. But in addition to this particular law I find myself listening to debates that do not make any sense. As a result both sides of the debate on social issues and foreign policy, financial issues and the economy, are wrongly starting with the premise that the issue is even up for debate. Both sides seem to ignore the supreme law of the land as their starting point.  Neither side seems to stake out a defensible position on which we can have a reasonable debate.

Revisions To Mortgage Foreclosure Procedures In Florida
http://www.jdsupra.com/legalnews/revisions-to-mortgage-foreclosure-proced-31636/

Florida tops the U.S. in May foreclosures
http://www.naplesnews.com/news/2013/jun/14/florida-tops-the-us-in-may-foreclosures/

Bank of America Lied to Homeowners and Rewarded Foreclosures, Former Employees Say
http://www.propublica.org/article/bank-of-america-lied-to-homeowners-and-rewarded-foreclosures

New law to speed foreclosures draws criticism and praise
http://www.heraldtribune.com/article/20130618/article/306189993

 

Trustees on REMICs Face a World of Hurt

DID YOU EVER WONDER WHY TRUSTEES INSTRUCTED THE INVESTMENT BANKS TO NOT USE THEIR NAME IN FORECLOSURES?

Editor’s Comment: Finally the questions are spreading over the entire map of the false securitization of loans and the diversion of money, securities and property from investors and homeowners. Read the article below, and see if you smell the stink rising from the financial sector. It is time for the government to come clean and tell us that they were defrauded by TARP, the bank bailouts, and the privileges extended to the major banks. They didn’t save the financial sector they crowned it king over all the world.

Nowhere is that more evident than when you drill down on the so-called “trustees” of the so-called “trusts” that were “backed” by mortgage loans that didn’t exist or that were already owned by someone else. The failure of trustees to exercise any power or control over securitization or to even ask a question about the mortgage bonds and the underlying loans was no accident. When the whistle blowers come out on this one it will clarify the situation. Deutsch, US Bank, Bank of New York accepted fees for the sole purpose of being named as trustees with the understanding that they would do nothing. They were happy to receive the fees and they knew their names were being used to create the illusion of authenticity when the bonds were “Sold” to investors.

One of the next big revelations is going to be how the money from investors was quickly spirited away from the trustee and directly into the pockets of the investment bankers who sold them. The Trustee didn’t need a trust account because no money was paid to any “trust” on which it was named the trustee. Not having any money they obviously were not called upon to sign a check or issue a wire transfer from any account because there was no account. This was key to the PONZI scheme.

If the Trustees received money for the “trust” then they would be required under all kinds of laws and regulations to act like a trustee. With no assets in a named trustee they could hardly be required to do anything since it was an unfunded trust and everyone knows that an unfunded trust is no trust at all even if it exists on paper.

Of course if they had received the money as trustee, they would have wanted more money to act like a trustee. But that is just the tip of the iceberg. If they had received the money from investors then they would have spent it on acquiring mortgages. And if they were acquiring mortgages as trustee they would have peeked under the hood to see if there was any loan there. to the extent that the loans were non-confirming loans for stable funds (heavily regulated pension funds) they would rejected many of the loans.

The real interesting pattern here is what would have happened if they did purchase the loans. Well then — and follow this because your house depends upon it — if they HAD purchased the loans for the “trust” there would have no need for MERS, no trading in the mortgages, and no trading on the mortgage bonds except that the insurance would have been paid to the investors like they thought it would. The Federal Reserve would not be buying billions of dollars in “mortgage bonds” per month because there would be no need — because there would be no emergency.

If they HAD purchased the loans, then they would have a recorded interest, under the direction as trustees, for the REMIC trusts. And they would have had all original documents or proof that the original documents had been deposited somewhere that could be audited,  because they would not have purchased it without that. Show me the note never would have gotten off the ground or even occurred to anyone. But most importantly, they would clearly have mitigated damages by receipt of insurance and credit default swaps, payable to the trust and to the investment banker, which is what happened.

No, Reynaldo Reyes (Deutsch bank asset manager in control of the trustee program), it is not “Counter-intuitive.” It was a lie from start to finish to cover up a PONZI scheme that failed like all PONZI schemes fail as soon as the “investors” stop buying the crap you are peddling. THAT is what happened in the financial crisis which would have been no crisis. Most of the loans would never have been approved for purchase by the trusts. Most of the defaults would have been real, most of the debts would have been real, and most importantly the note would be properly owned by the trust giving it an insurable interest and therefore the proceeds of insurance and credit default swaps would have been paid to investors leaving the number of defaults and foreclosures nearly zero.

And as we have seen in recent days, there would not have been a Bank of America driving as many foreclosures through the system as possible because the trustee would have entered into modification and mitigation agreements with borrowers. Oh wait, that might not have been necessary because the amount of money flooding the world would have been far less and the shadow banking system would be a tiny fraction of the size it is now — last count it looks like something approaching or exceeding one quadrillion dollars — or about 20 times all the real money in the world.

At some point the dam will break and the trustees will turn on the investment banks and those who are using the trustee’s name in vain. The foreclosures will stop and the government will need to fess up tot he fact that it entered into tacit understandings with scoundrels. When you sleep with dogs you get fleas — unless the dog is actually clean.

Stay Tuned for more whistle blowing.

In Countrywide Case, Trustees Failed to Provide Oversight on Mortgage Pools

Danielle Kelley Looks at New Florida Law: Pitfalls and Possibilities

The fundamental paradigm shift that is coming is that the banks are the deadbeats, not the borrowers. The borrowers are seeking to enforce a fair deal; the banks are seeking to steal and lie their way through the PONZI scheme we called “Securitization.” —Neil F Garfield, Livinglies.me

If you are seeking legal representation or other services call our South Florida customer service number at 954-495-9867 and for the West coast the number remains 520-405-1688. In Northern Florida and the Panhandle call 850-765-1236. 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.

SEE ALSO: http://WWW.LIVINGLIES-STORE.COM

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 PROVIDE ACTIVE LITIGATION SUPPORT 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.

Danielle Kelley, Esq. is a partner in Garfield, Gwaltney, Kelley and White located in Tallahassee. She has been a constant contributor to the dialogue on wrongful foreclosures and has been quoted recently in a number of articles in mainstream media. For further information on the firm’s services please call 850-765-1236.

Editor’s Comment: The Florida bill was clearly meant to speed up the “inevitable” foreclosure process, which is the wrong assumption right off the bat. If the foreclosures are wrongful we are not talking about some “i” that wasn’t dotted or some “t” that wasn’t crossed. We are talking about foreclosures that (a) didn’t need to happen and (b) couldn’t happen legally if the party  bringing the foreclosure had no right to do so.

The fundamental paradigm shift that is coming is that the banks are the deadbeats, not the borrowers. The borrowers are seeking to enforce a fair deal; the banks are seeking to steal and lie their way through the PONZI scheme we called “Securitization.”

Verification of the complaint has taken another bizarre turn. In reading the testimony and affidavits of those who “verified” the complaint, it turns out they signed the verification but knew nothing about the case. The only thing they verified was that the complaint contained information that was given to her or him by unknown parties through computer via a computer monitor.

Banks are using the verification aspect to bolster their false claims to the business records exception of hearsay. They are wrong and any judge who rules that is wrong if the verifier or affiant (a) is not the records custodian and (b) had no basis for personally knowing the truth. Pressed to give an accounting for how they know what they know, the verifier will answer “it’s in the complaint.” They often express confidence that it wouldn’t be in the complaint if it wasn’t true. Talk about circular logic!

The recent revelations about Bank of America are the tip of the iceberg of lying and deception that started when the first mortgage bond was sold and the first loan application was taken within the scope of the PONZI scheme that required bonds to be sold in order to make payments to the investors.

The fact that BOA told its employees to lie to customers in order to get them into foreclosure is enough to infer the truth, to wit: the goal was foreclosures and not financial recovery. How is that possible? What bank would not want the most it could get in mitigation of a “loss” it supposedly incurred as a result of a “default” by a “borrower” on a “debt” that was owed to the bank because the bank funded the origination or acquisition of the loan?

The questions answer themselves. If the Bank had a real loss they would want to mitigate the loss as quickly as possible. In the past that has always meant some sort of workout when that possible. Now we find out that BOA was paying its employees to lie and deceive the “borrowers” for the express purpose of getting the property into foreclosure even though that means getting a lot less money for the “creditor” than any modification, settlement or workout. So the answer is that they had no real loss and they must want the foreclosure for some other reason.

The “other reason” is simply that foreclosure is the cover-up for the PONZI scheme. And the government feels stuck by assurances it gave the large banks (see statements of future whistle blowers) when they forced the banks to acquire the investment banks, the aggregators and other players in this scheme, before the government knew that the scheme existed. So the government is buying up worthless mortgage bonds with no loans backing them and pretending that the bonds are really worth something. This is supposed to shore up the financial system by avoiding massive failures of the largest banks — something that is eventually going to happen anyway because the $ trillions that were siphoned off from from investors were then siphoned off from the banks and management now controls that money.

If you look at the merger and bond activity you can see the banks acquiring other institutions in order to provide a safety valve through which part of the ill-gotten gains from the PONZI scheme can be repatriated and the “earnings” of the bank can be seen as stable or increasing even while the rest of the world goes to hell in a hand basket. (see below). The rest of the money is being controlled by a handful of people (see future whistle blowers) who are actually controlling world events by controlling the purse strings of all world economies.

Sounds like a conspiracy theory, doesn’t it. Maybe a little less crazy now that we know that BOA was rewarding employees for lying to customers. And maybe a little less so now that we know the bonus was paid with a Target gift card. If it was a legitimate bonus, why use Target as the intermediary? Answer: the auditors of the bank probably would not like seeing bonuses paid to people who were supposedly working with borrowers on modification or settlement of the loan — especially when the record shows that the bonus was for getting the case into foreclosure rather than settlement.

As you can read for yourself below, the pace of foreclosures is picking up and is going to accelerate under the new Florida law. They are in a rush to hush up any further whistle blowers who might blow the whole thing wide open. But the carrot they held out to homeowners might be the bank’s undoing if the borrower moves promptly and fights the foreclosure on the basis of ownership of the loan. There is only one way to really own a loan and that is by paying for it. The argument has been rejected by many judges, but now it is right in the statute that the proof of ownership must be present as a condition precedent which means that the real burden of proof is switching back to the banks, where it belongs.

————————————————-

Danielle Kelley, Esq. June, 2013

The banks wanted this bill – so let’s take a look at the “consumer friendly” portions and get ready.  Keep in mind the act is remedial in nature.  All complaints filed after June 7, 2013 will be subject to a motion to dismiss if the plaintiff does not meet the requirements of the new bill:

1) they must give affirmative allegations that at the time foreclosure is filed they are the holder of the original note, allege with specificity the factual basis by which they are entitled to enforce the note under 673.3011 (no more either/or pleading),

3) a plaintiff given authority to sue (i.e. servicer or someone coming in with a POA like we’ve been seeing) – the Complaint shall describe their authority and identify with specificity the document that gives them authority to act on behalf of the Plaintiff.

Given what we know about how they verify complaints, they will have a hard road showing they can verify the plaintiff actually “has” the original note.  I won’t settle for anything less than a declaration that they have seen it in person – not on a computer screen.  The bill states, “The term “original note” or “original promissory note” means the signed or executed promissory note rather than a copy thereof.”  I don’t want to hear about a janitor who was adopted as assistant vice president through corporate resolution and is verifying they saw the “original note” on a screen.  Keep in mind that they executed the complaints filed this month months ago – they sign right after they send off for verification usually. 

If they file a lost note count they must attach an affidavit under penalty of perjury to the Complaint that

1) details a clear chain endorsements, transfers, or assignments Note;

2) set forth facts showing the Plaintiff is entitled to enforce the lost instrument (Note); and

3) attach documents to the affidavit such as copies of the Note, allonges, audit reports, or other evidence of acquisition, ownership, and possession.  

 

Relevant portions of the bill below:

(2) A complaint that seeks to foreclose a mortgage or other lien on residential real property, including individual units of condominiums and cooperatives, designed principally for  occupation by from one to four families which secures a  promissory note must:

(a) Contain affirmative allegations expressly made by the plaintiff at the time the proceeding is commenced that the plaintiff is the holder of the original note secured by the mortgage; or

(b) Allege with specificity the factual basis by which the plaintiff is a person entitled to enforce the note under s. 673.3011.

(3) If a plaintiff has been delegated the authority to institute a mortgage foreclosure action on behalf of the person entitled to enforce the note, the complaint shall describe the authority of the plaintiff and identify, with specificity, the document that grants the plaintiff the authority to act on behalf of the person entitled to enforce the note. This subsection is intended to require initial disclosure of status and pertinent facts and not to modify law regarding standing or real parties in interest. The term “original note” or “original promissory note” means the signed or executed promissory note rather than a copy thereof. The term includes any renewal, replacement, consolidation, or amended and restated note or instrument given in renewal, replacement, or substitution for a previous promissory note. The term also includes a transferable record, as defined by the Uniform Electronic Transaction Act in s. 668.50(16).

(4) If the plaintiff is in possession of the original promissory note, the plaintiff must file under penalty of perjury a certification with the court, contemporaneously with the filing of the complaint for foreclosure, that the plaintiff is in possession of the original promissory note. The certification must set forth the location of the note, the name and title of the individual giving the certification, the name of the person who personally verified such possession, and the time and date on which the possession was verified. Correct copies of the note and all allonges to the note must be attached to the certification. The original note and the allonges must be filed with the court before the entry of any judgment of foreclosure or judgment on the note.

(5) If the plaintiff seeks to enforce a lost, destroyed, or stolen instrument, an affidavit executed under penalty of perjury must be attached to the complaint. The affidavit must:

(a) Detail a clear chain of all endorsements, transfers, or assignments of the promissory note that is the subject of the action.

(b) Set forth facts showing that the plaintiff is entitled to enforce a lost, destroyed, or stolen instrument pursuant to s. 673.3091. Adequate protection as required under s. 673.3091(2) shall be provided before the entry of final judgment.

(c) Include as exhibits to the affidavit such copies of the note and the allonges to the note, audit reports showing receipt of the original note, or other evidence of the acquisition, ownership, and possession of the note as may be available to the plaintiff.

(6) The court may sanction the plaintiff for failure to comply with this section.

SEE ALSO

http://dkelleylaw.wordpress.com/2013/06/18/the-buck-didnt-stop-there-what-the-boa-declarations-are-missing/

Unnatural Disaster How mortgage servicers are strong-arming the victims of the Moore, Oklahoma tornado (among others)
http://www.newrepublic.com/article/113496/moore-oklahoma-tornado-victims-strong-armed-mortgage-servicers

HAMP Extension 2015 Could Help Millions More Avoid Foreclosure, LoanLove.com Reports
http://www.sys-con.com/node/2700128

Bank of America gave bonuses for hitting foreclosure quotas, suit alleges
http://www.bizjournals.com/orlando/morning_call/2013/06/bank-of-america-gave-bonuses-for.html

The Biggest Bond Bubble In History Is Turning Into Carnage
http://www.businessinsider.com/biggest-bond-bubble-in-history-is-turning-into-carnage-2013-6

Foreclosure’s Harvest of Shame
http://www.huffingtonpost.com/joel-sucher/foreclosures-harvest-of-s_b_3438553.html

What’s Behind the Big Jump in Foreclosures?
http://www.fool.com/investing/general/2013/06/16/whats-behind-the-big-jump-in-foreclosures.aspx

FreddieMac.com launches online tool for distressed borrowers
http://www.housingwire.com/fastnews/2013/06/17/freddiemaccom-launches-online-tool-distressed-borrowers

The Goal is Foreclosures and the Public, the Government and the Courts Be Damned

13 Questions Before You Can Foreclose

foreclosure_standards_42013 — this one works for sure

If you are seeking legal representation or other services call our South Florida customer service number at 954-495-9867 and for the West coast the number remains 520-405-1688. In Northern Florida and the Panhandle call 850-765-1236. 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.

SEE ALSO: http://WWW.LIVINGLIES-STORE.COM

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 PROVIDE ACTIVE LITIGATION SUPPORT 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.

Danielle Kelley, Esq. is a partner in the firm of Garfield, Gwaltney, Kelley and White (GGKW) in Tallahassee, Florida 850-765-1236

EDITOR’S NOTE: SOMETIMES IT PAYS TO SHOW YOUR EXASPERATION. Danielle was at a hearing recently where all she wanted was to enforce a permanent modification for which her client had already been approved by Bank of America and BOA was trying to get out of it and pursue foreclosure even though the deal was done and there was no good or valid business reason why they would oppose a modification they already approved — except that they want to lure people into defaults and foreclosure to avoid liability for buy-backs, insurance, and credit default swap proceeds they received.

They need the foreclosure because that is the stamp of approval that the loans were valid and the securitization wasn’t a sham. Without the foreclosure, they stand to lose not only a lot of money in paybacks, but their very existence. Right now they are carrying assets that are fictitious and they are not reporting liabilities that are very real. At the end of the day, the public will see and even government officials whose “Services” have been purchased by the banks will not be able to deny that the nation’s top banks are broke and are neither too big to fail nor too big to jail. When that happens, our economy will start to recover ans the flow of credit and funds resumes and the banks’ stranglehold on government and on our society will end, at least until the next time.

THIS IS WHAT DANIELLE KELLEY WROTE TO ME AFTER THE HEARING:

 At the hearing against BOA on an old case of mine and Bill’s [William GWALTNEY, partner in GGKW] today I moved to enforce settlement. They actually agreed to a trial payment with my client in writing at mediation 2 years ago. The Judge granted the motion and wants a hearing in 60 days on the arrears (which he agreed my client isn’t liable for), sanctions and fees. She made her payment post-mediation and they sent the checks back. I gave him the Massachusetts affidavits from the BOA employees.  The Judge looked shocked. Opposing Counsel argued the Massachusetts case had nothing to do with our case.

Judge said “Mrs. Kelley how about I enter an order telling Plaintiff they have so many days to resolve this?”  I said “with all due respect your Honor BOA hasn’t listened to the OCC and followed the consent order, they haven’t listened to DOJ on the consent judgement and they are violating the AG settlement. I can assure you 100% they won’t listen to this Court either. Once we leave this room we are at the mercy of BOA actually working with us and their own attorney nor this court can get them to.  Their own attorney couldn’t reach them yesterday or today.  My client was to send in one utility bill two years ago. She sent it the day after mediation and they’ve sat and racked up two years of arrears and fees. This court has the power to sanction that behavior under rule 1.730 and should because this was orchestrated. The Massachusetts case is a federal class action which includes Florida homeowners like my client. It says Florida on the Motion for class certification so it does matter in this case. This was a scheme and a fraud.  It was planned and deliberate”.

Opposing counsel wanted to start the modification process over because the mediation agreement said “Upon completion of the trial payments Defendant will be eligible for a permanent modification”. Opposing counsel said “just because they meet the trial payments doesn’t mean they get a permanent mod.”  I said “under the consent judgment they better” and told the judge we were not going through the modification again, my client had already been approved. He agreed and said that the trial would become permanent and ordered BOA to provide an address for payment. He told opposing counsel that the argument that a trial period wouldn’t become permanent wasn’t going to work for him.

I love the 14th circuit. There is a great need from here to Pensacola and in the smaller counties like I was in today you can actually get somewhere.

Now the banks won’t even say impasse at mediation. It’s always “no agreement”.   But they’ll tell you to send in documents the next week only to say they didn’t get them. Now after those affidavits I see why.

Danielle Kelley, Esq.

Garfield, Gwaltney, Kelley & White
4832 Kerry Forest Parkway, Suite B
Tallahassee, Florida 32309
(850) 765-1236

 FOLLOW DANIELLE KELLEY, ESQ. ON HER BLOG

Reuters: BOA Paid Bonuses of Target Gift Cards To Modification Employees For Steering Cases Into Foreclosure, Fired Them If They Didn’t Go After the Foreclosure

SIX FORMER BOA EMPLOYEES TESTIFY THAT BOA MODIFICATION AND FORECLOSURE SPECIALISTS WERE PAID AND INSTRUCTED TO LIE TO HOMEOWNERS, PAID WITH GIFT CARDS IF THEY SUCCESSFULLY THREW THE HOMEOWNER INTO FORECLOSURE AND WERE DISCIPLINED OR FIRED IF THEY FAILED TO TURN OVER THE REQUESTS FOR MODIFICATION INTO THE RIGHT NUMBER OF FORECLOSURES.

IF YOU WANT A MODIFICATION, YOU NEED A LAWYER TO CHALLENGE THE REPRESENTATIONS OF LOST DOCUMENTS AND INCOMPLETE APPLICATIONS FOR MODIFICATION. AND YOU ESPECIALLY NEED A LAWYER OR HUD COUNSELOR TO SUBMIT THE COVER LETTER AND THE SPECIFIC PROPOSAL FOR MODIFICATION WITH AFFIDAVITS FROM EXPERTS — (usually absent because the bank doesn’t request it). LIVINGLIES PROVIDES SUPPORT TO ANY ATTORNEY NEEDING ASSISTANCE IN DRAFTING THE COVER LETTER, AFFIDAVITS AND PROPOSAL. CALL CUSTOMER SUPPORT EAST COAST 954-495-9867 OR CUSTOMER SERVICE WEST COAST 520-405-1688 FOR PRICE QUOTES AND REQUIREMENTS. GGKW PROVIDES LEGAL SERVICES ONLY IN FLORIDA.

If you are seeking legal representation or other services call our South Florida customer service number at 954-495-9867 and for the West coast the number remains 520-405-1688. In Northern Florida and the Panhandle call 850-765-1236. 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.

SEE ALSO: http://WWW.LIVINGLIES-STORE.COM

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 PROVIDE ACTIVE LITIGATION SUPPORT 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. Garfield is a partner of Garfield, Gwaltney, Kelley and White

Danielle Kelley, Esq. is a partner in the firm of Garfield, Gwaltney, Kelley and White (GGKW) in Tallahassee, Florida 850-765-1236

Our very own Danielle Kelley was quoted in a Reuters article yesterday that laid out in exquisite detail the endemic practice of lying, layering, laddering and forcing homeowners into foreclosure when a modification was better for both the homeowner and the investor. The article is by Michelle Conlin and Peter Rudegeair, Reuters, News Agency. Article carried in New York Times and other periodicals. Story picked up by several investigative reporters for in depth reports on TV, radio and other news media.

Since BOA might be successful in killing story, we produce most of it here:

The full article can be found at: FORMER BANK OF AMERICA WORKERS ALLEGE IT LIED TO HOMEOWNERS

EDITOR’S NOTE:  As we have been saying for 6 years, sometimes alone in the wilderness, this is not a conspiracy theory, it is a fact. The entire securitization scheme was a lie, a Ponzi scheme to steal trillions of dollars from the U.S. Economy, and trillions of dollars from other countries around the world.

In order to make it work, the big banks had to set up an infrastructure in which they would lie, cheat and steal, sending the profits off to other jurisdictions and covering up the crimes by using companies at each layer of the scheme who channeled a large portion of investor funds and most of the recovery from insurance, credit default swaps, and government bailouts away from the investors and away from the borrowers.

The essential capstone of the strategy was the foreclosure sale and the expiration of the right of redemption. Without it, the banks could owe as much as $25 trillion back to insurers, credit default swap counterparties, government agencies, government sponsored entities (Fannie and Freddie) and the investors who provided all the money that was used to create the largest liquidity boom in history. And then there were the extra fees for servicing a loan that was deemed non-performing (even though it was the bank who lied to homeowners telling them to stop paying). So far it has been the perfect crime.

And the underpinning of the strategy was that the banks could control the narrative — that it was about borrowers who were intentionally getting into deals they could not afford — when it was just the opposite, to wit: it was the banks acting through many layers of nominees, conduits and intermediaries whose goal was to rid themselves of the money on deposit from investors (money that should have been entirely into a REMIC trust account and never was). Much of the money successfully stolen was in the form of a second tier yield spread premium that was created in the spread between the loans that were promised to investors and the actual loans made to borrowers.

It was all a lie. The borrowers believed the lender was the lender and that the lender would not assume a high risk on a loan that was doomed to fail. The investors believed that since most of them were managed funds who were required to invest only in triple A rated securities that were insured and guaranteed that industry standard underwriting was under way. Nothing could have been further from the truth.

The Banks were lying and paying for others to lie about the property valuation, the safety of the collateral, the existence of the collateral for investors, and the existence of insurance and hedge products for the investors. They lied to investors, they lied to the press, they lied to the government agencies, they lied to the two presidents that were caught in the web of deceit, and they lied to the secretaries of the treasury.

And now, as predicted the tsunami is going the other way as the truth sloshes over all the lies they told. We start with the story of modification of loans which could have resulted on most of the foreclosed homes being modified. Now we have strong evidence from the actual people who worked for BOA and other large financial institutions that their strategy was to use the promise of modification to lure homeowners into default on loans owned by unidentified parties, and stretch out the time so that the hole dug for the homeowner was too deep to get out of, and eventually put a cap on the well that could spray liability all over the mega banks and end their existence.

PRACTICE HINT: WITHOUT EXPERTS IN E-DISCOVERY, YOU WILL BE UNABLE TO WIN YOUR CASES OR GET ENOUGH TRACTION TO FORCE MODIFICATION ON THE TERMS OFFERED BY THE BORROWER. GGKW, IN WHICH DANIELLE KELLEY IS  PARTNER, IS DEVELOPING RELATIONSHIPS WITH PRIVATE INVESTIGATORS AND FORENSIC  COMPUTER SPECIALISTS WHO ASSIST US ON MOST OF OUR CASES. WHEN YOUR GOAL IS TO WIN RATHER THAN DELAY, IT COSTS MONEY. ANTI-FORECLOSURE MILLS CHARGING LOW MONTHLY PAYMENTS ARE EFFECTIVE AT DELAYING THE FORECLOSURE BUT USUALLY INEFFECTIVE AT STOPPING IT OR EVEN WINNING THE CASE. YOU GET WHAT YOU PAY FOR.

 FOLLOW DANIELLE KELLEY, ESQ. ON HER BLOG

Significant quotes from Reuters article:

Borrowers filed the civil case against Bank of America in 2010 and are now seeking class certification. The affidavits, dated June 7, are the latest accusations over the mishandling of mortgage modifications by some top U.S. banks.

Six former Bank of America Corp (BAC.N) employees have alleged that the bank deliberately denied eligible home owners loan modifications and lied to them about the status of their mortgage payments and documents.

The bank allegedly used these tactics to shepherd homeowners into foreclosure, as well as in-house loan modifications. Both yielded the bank more profits than the government-sponsored Home Affordable Modification Program, according to documents recently filed as part of a lawsuit in Massachusetts federal court.

The former employees, who worked at Bank of America centers throughout the United States, said the bank rewarded customer service representatives who foreclosed on homes with cash bonuses and gift cards to retail stores such as Target Corp (TGT.N) and Bed Bath & Beyond Inc (BBBY.O).

For example, an employee who placed 10 or more accounts into foreclosure a month could get a $500 bonus. At the same time, the bank punished those who did not make the numbers or objected to its tactics with discipline, including firing.

About twice a month, the bank cleaned out its HAMP backlog in an operation called “blitz,” where it declined thousands of loan modification requests just because the documents were more than 60 months old, the court documents say.

The testimony from the former employees also alleges the bank falsified information it gave the government, saying it had given out HAMP loan modifications when it had not.

Mortgage problems have dogged Bank of America since its disastrous purchase of Countrywide Financial in 2008. The bank paid $42 billion to settle credit crisis and mortgage-related litigation between 2010 and 2012, according to SNL Financial.

Bank of America and four other banks reached a $25 billion landmark settlement with regulators in 2012, following a scandal in late 2010 when it was revealed employees “robo signed” documents without verifying them as is required by law.

But problems have persisted. Since 2012, more than 18,000 homeowners have filed complaints about Bank of America with the Consumer Financial Protection Bureau, a new agency created to help protect consumers. Recently, the attorney generals of New York and Florida accused Bank of America of violating the terms of last year’s settlement.

The government created HAMP in 2009 in response to the foreclosure epidemic and to encourage banks to give homeowners loan modifications, allowing some borrowers to stay in their homes.

THE BLITZ

The court documents paint a picture of customer service operations where managers roamed the floor with headsets, able to listen into any call without warning. Service representatives were told to lie to homeowners, telling them their paperwork and payments had not been received, when in reality they had.

“This is exactly what’s been happening to homeowners for years,” said Danielle Kelley, a foreclosure defense lawyer in Florida. “No matter how many times they send in their paperwork, or how often they make their payments, they simply can’t get loan modifications. They wind up in foreclosure instead.”

The former employees said they were told to falsify electronic records and string homeowners along in foreclosure as long as possible. The problem was exacerbated because the bank did not have enough employees handling modifications, adding to the backlog of cases purged during the “blitz” operations.

 

 

What to say about BOA

13 Questions Before You Can Foreclose

foreclosure_standards_42013 — this one works for sure

If you are seeking legal representation or other services call our South Florida customer service number at 954-495-9867 and for the West coast the number remains 520-405-1688. In Northern Florida and the Panhandle call 850-765-1236. 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.

SEE ALSO: http://WWW.LIVINGLIES-STORE.COM

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 PROVIDE ACTIVE LITIGATION SUPPORT 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.

My partner, Danielle Kelley, Esq.  was in a hearing for the simple purpose of enforcing a modification agreement that had been approved by Bank of America. In typical style the bank was now saying that the homeowner was not entitled to a permanent modification even though the client had satisfied all of the terms of the trial modification. You might think this should be easy and you would be right.

Sometimes it is good courtroom strategy to show your exasperation with the system, with the court and with banks that are so arrogant that they think that they can continue to violate court orders, consent decrees, laws, rules and regulations.

Here is part of what Danielle wrote to me shortly after the hearing:

 At the hearing against BOA on an old case of mine and Bill’s [William Gwaltney of GGK] today I moved to enforce settlement. They actually agreed to a trial payment with my client in writing at mediation 2 years ago. The Judge granted the motion and wants a hearing in 60 days on the arrears (which he agreed my client isn’t liable for), sanctions and fees. She made her payment post-mediation and they sent the checks back. I gave him the Massachusetts affidavits from the BOA employees.  The Judge looked shocked. Opposing Counsel argued the Massachusetts case had nothing to do with our case.

Judge said “Mrs. Kelley how about I enter an order telling Plaintiff they have so many days to resolve this?”  I said “with all due respect your Honor BOA hasn’t listened to the OCC and followed the consent order, they haven’t listened to DOJ on the consent judgement and they are violating the AG settlement. I can assure you 100% they won’t listen to this Court either. Once we leave this room we are at the mercy of BOA actually working with us and their own attorney nor this court can get them to.  Their own attorney couldn’t reach them yesterday or today.  My client was to send in one utility bill two years ago. She sent it the day after mediation and they’ve sat and racked up two years of arrears and fees. This court has the power to sanction that behavior under rule 1.730 and should because this was orchestrated. The Massachusetts case is a federal class action which includes Florida homeowners like my client. It says Florida on the Motion for class certification so it does matter in this case. This was a scheme and a fraud.  It was planned and deliberate”. 

Opposing counsel wanted to start the modification process over because the mediation agreement said “Upon completion of the trial payments Defendant will be eligible for a permanent modification”. Opposing counsel said “just because they meet the trial payments doesn’t mean they get a permanent mod.”  I said “under the consent judgment they better” and told the judge we were not going through the modification again, my client had already been approved. He agreed and said that the trial would become permanent and ordered BOA to provide an address for payment. He told opposing counsel that the argument that a trial period wouldn’t become permanent wasn’t going to work for him.

I love the 14th circuit. I talked to a potential client last night in Santa Rosa county briefly (giving him to Danielle G) who said the judges in Pensacola are pro-bank.  But in between here and there its different. He said he hired Matt Weidner (who referred him to me) because he couldn’t find an attorney in North Florida who did foreclosure defense. There is a great need from here to Pensacola and in the smaller counties like I was in today you can actually get somewhere.

She was pro se at mediation but that agreement is a blessing. Now the banks won’t even say impasse at mediation. It’s always “no agreement”.   But they’ll tell you to send in documents the next week only to say they didn’t get them. Now after those affidavits [in the class action in Massachusetts] I see why.

Michigan Appellate Court Dismisses BOA Foreclosure for Lack of Standing — but for the wrong reason?

CHASE-WAMU MERGER CONSIDERED IN MICHIGAN COURT OF APPEALS AS NOT AN ASSIGNMENT.  BOA FORECLOSURE DISMISSED AND REMANDED FOR LACK OF STANDING.

And next is an interesting favorable decision in the State of Michigan entered June 6, 2013 but not yet published. Sobh-v-Bof-A, Chase et al

Bank of America was found to LACK STANDING to Foreclose. So far so good. But the reasoning of the Court leads me to question whether the right record was in front of them. They ASSUME that the Chase-Wamu merger transferred the loans only because, as I see it, nobody read the merger agreement. The receiver, as I pointed out in prior posts, acting on behalf of the FDIC, the trustee in WAMU bankruptcy, Chase and WAMU executives were sort of playing fast and loose with the rules.

It turns out that Chase never paid for anything. While it could be argued that they assumed the liability on billions of dollars in deposits, they also got the money that was on deposit. The agreement says the consideration is zero in no uncertain language. In fact, later on in the agreement and then again outside the agreement, they slipped in a provision wherein Chase was putting up $1.9 billion, but getting more than $2 billion back out of a tax refund owed to WAMU, so they had negative consideration and there is no recital of any net loss they were taking when they assumed the deposits of WAMU.

It also turns out that, straight from the receiver’s lips, if you are looking for an assignment, you won’t find one because there isn’t one. And the merger and assumption agreement specifically does NOT include the bogus mortgage loans and other liabilities (put back) in the securitization scheme which is most of all loans originated by WAMU. Chase didn’t want to buy the loans because they correctly perceived that the liabilities on those loans and the liabilities to alleged REMIC structures that never received an interest in the loans, and the liabilities to insures, counterparties on credit default swaps and to the Federal government and Federal Reserve might vastly exceed the nominal value of mortgages originated by WAMU. Then there was also the liability for predatory or fraudulent loan practices. Altogether, Chase didn’t want to be saying it owned ALL the loans. It just wanted to be able to say it some of the time when they had an uncontested foreclosure and they could get a free house.

So Chase got an affidavit from the receiver that said that Chase owned the loans by operation of law because of the merger. That affidavit has been used hundreds if not thousands of times in foreclosures where Chase perceived the risk to be low. Thus in uncontested cases, Chase alleged it owned the loans even if they were “securitized” and got away with it because, well, there was nobody to say otherwise.

A good thing that the Michigan court said was that the Chase had the burden of proving the chain of ownership which was the history of the piece of property. A bad thing that the Court said was that Chase “acquired” the loans but that the foreclosures were voidable because the assignment was never recorded. In Michigan the absence of a recorded assignment is deadly so they ran with that idea and decided fro the borrower and against Chase who will no doubt now enter into a settlement or modification for which they have no authority to even talk about because they do not now nor did they ever own the loans.

Just because the loans were considered a hot potato and nobody wanted them doesn’t mean that anyone can claim them. But that is exactly the plan of engagement adopted by Chase. So all that happened here was that Chase was chased out of Court with permission to come back when it had the assignment recorded. tricky business there. Will they fabricate that instrument or will they simply settle with the borrower for what they can get? Whatever they get, it is free money because at no time in the history of the loan has Chase ever been at risk unless, now that they are acting as though they have control over the loan portfolio, a court decides that if you fake it or made it. Greed has no bounds. If Chase had simply left the loan portfolio to wallow in its own crud, no argument could be made against Chase for all the chicanery that went on with the borrowers and investors. Now that they have led courts to believe they have apparent authority, maybe they have apparent liability as well.

BOA “SENIOR COLLECTOR”: “I lied because I was told to lie.”

Want to know why the blog is called “Living Lies”? Then read this:

see affidavit.boa3.djk

see also Memorandum to Certify Class: Editor’s Note: This is where the banks are at their most vulnerable.. They have gone to great lengths to create the illusion that they were modifying loans or even willing to do so when in fact what they really wanted and needed is a foreclosure sale to prevent them from getting hammered on liability for stealing the investors’ money and for diversion of both assets and money from the investors and from what would have been a benefit to borrowers. memotocertifyclass. I believe that there are monetary damages that could be awarded particularly when the pretender lender cannot come up with an allegation and proof of financial injury. Opportunities to sell or refinance the home were thwarted both by the pending foreclosure action and the negative credit reporting from non-creditors. People who have had their credit scores tanked by the pretender lenders should write to the credit reporting agencies and tell them that the report is false and fraudulent — that you never owed any money to the entity that entered the negative report.

Practice Hint: Get the name of the person and confirm their telephone, email, fax and physical address. Tell them you are recording the conversation for training purposes. And then record it.

This affidavit shows exactly why you need people are both lawyers and forensic computer experts to assist on most cases. Law firms lacking these resources and lacking private investigators, are not equipped well enough to do battle with these lying behemoths. If they are charging low fees just to sign you up, their chances are diminished that they can do anything besides delay a wrongful foreclosure instead of beating it.

This affidavit is an example of why the entire foreclosure process is going to unravel in the near future. Previously judges were resisting pleading, argument and discovery direct it at the credibility and truthfulness of affidavits and live testimony in court if they were submitted by a well-known bank or other institution supposedly acting on behalf of a bank. As time passed more and more judges were beginning to discern inconsistencies in the pleading and proof of the banks. But they still thought that the banks were most likely in possession of “the truth” and that any representation from the bank should be treated as credible whereas any representation from the borrower should be treated as dilatory at best.

Bank of America has taken the position that its house is totally in order. They even got the Atty. Gen. of the state of New York to back off of a lawsuit that was eventually filed only against HSBC. Danielle Kelly, Esq., of the firm of Garfield, Gwaltney, Kelley and White is writing an article about affidavits (in support of foreclosing) signed by people with no idea of what they contain (or knowing that they are lies), including the description of the signor as someone with authority to do so. You’ll see that article shortly, so I won’t belabor the point. I’ll simply quote the following from an affidavit of a supposedly senior person at BOA filed in United States District Court for the District of Massachusetts.:

Using the Bank of America computer systems I saw that hundreds of customers had made their required trial payments, sent the documents requested of them, but had not received permanent modifications. I also saw records showing that Bank of America employees have told people that  documents had not been received when, in fact, the computer system showed that Bank of America had received the documents. This was consistent with the instructions my colleagues and I were given. We were told to lie to customers and claim that Bank of America had not received documents it had requested, and that it had not received trial payments (when in fact it had). We were told that admitting that the bank received documents would “open a can of worms” since the bank was required to underwrite a loan modification within 30 days of receiving those documents and it did not have sufficient underwriting staff to complete the underwriting in that time…. Site leaders regularly told us that the more we delayed the HAMP modification process, the more fees Bank of America would collect. We were regularly drilled that it was our job to maximize fees for the bank by fostering and extending the lay of the … modification process by any means we could —  this included lying to customers. For example, we were instructed by our supervisors at Bank of America to delay modifications by telling homeowners who called in at their documents were “under review,” when, in fact, there had been no review or any other work done on the file.

Employees who were caught admitting that Bank of America had received financial documents or that the borrower was actually entitled to a permanent loan modification where discipline and often terminated without warning.

The only other thing that I would state at this point is that Bank of America did not merely lie to its customers. Bank of America makes a practice of lying to its own staff. While the use of a “nonperforming” loan are higher than the fees paid on a  “performing” loan, the real reason for this outrageous behavior is that the banks are attempting to protect and maintain their receipt of outrageous sums of money that they have declared to be proprietary trading profits. As I have stated before these banks are intermediaries. They are not and never were principals or real parties in interest in any transaction between the homeowner and the investors who put up the money.

As partial explanation of what I am talking about, consider this: you order a brand-new TV on Amazon using one of your many plastic cards. The vendor is (by way of example) Best Buy. Your account is debited $1000 which is exactly the amount you agreed to pay. Later, you find out that Best Buy accepted $600 for the TV and the intermediaries kept the other $400.  You also find out that during the shipping process the intermediaries took possession of the TV and intentionally dropped it 30 times to make sure that it wouldn’t work. During that process you learn that the intermediaries each paid for a contract of insurance using your money. Sure enough, the TV arrives in 1000 pieces. Each of the intermediaries receives full payment for the TV probably at the original purchase price of $1000. The intermediaries tell you that your problem is with Best Buy because that is the vendor in the transaction. Best Buy tells you that the TV was just fine when it left its distribution center and directs you to one of the intermediaries that handled either the shipment or the payment for the shipment. You are left going around in circles and you get worn out or you accept a settlement that is worth far less than the TV you purchased.

Now comes the fun part. The issuer of the credit card wants you to repay them $1000 at the end of the month or pay monthly installments with an interest rate of 24%. All you know is that you got screwed but you’re not entirely sure how that happened. The purpose of this blog is to educate you gradually on how you got screwed and why you are not a deadbeat; instead, you are a pawn in a very large Ponzi scheme.

Garfield, Gwaltney, Kelley & White

4832 Kerry Forest Parkway, Suite B

Tallahassee, Florida 32309

(850) 765-1236

More News:

http://www.fbi.gov/lasvegas/press-releases/2013/former-chief-executive-officer-of-mortgage-servicing-company-pleads-guilty-to-bank-fraud-in-scheme-to-withhold-funds-from-wells-fargo-bank  – But they won’t go after Wells?  Makes a lot of sense

From Danielle Kelley, Esq. : The affidavits filed with the Court in Massachusetts by BOA and Urban employees are infuriating.   I particularly like the one that talks about the gift cards and $500 bonus payments to employees who had high foreclosure numbers and the one about the “Blitz” where as many as 1,500 modification applications would be denied several times a month based on production numbers whether the homeowners truly qualified for a modification or not. Selling out homeowners while collecting federal incentives to “pretend” to consider them for a federal modification program and then behind closed doors giving Target gift cards to employees who have high foreclosure numbers? 

4th DCA Florida: Trustee of Asset Pool Must Join or Ratify

 

“servicer may be considered a party in interest to commence legal action as long as the trustee joins or ratifies its action.”

ElstonLeetsdale LLC v CWCapital Asset Management LLC-1

This ought to be interesting. If Deutsch, or U.S. Bank, or Bank of New York, or any of the other “Trustees” join or ratify the action then they are asserting, under oath (if the lawyer for the homeowner knows what he or she is doing) that (1) the Asset pool is exists, (2) that the subject loan is in the asset pool (i.e., consideration paid by the Trust and assignment before cut-off date) and (3) that the trust was properly organized and (4) that the Trustee is authorized by [fill in blank here, if the lawyer of the homeowner knows what he or she is doing] to accept the assignment, join in the lawsuit and ratifies the representations and claims made on behalf of the REMIC trust and (5) signed by  a trust officer for the bank who says it is the trustee for the asset pool.

You might want to ask while you are on the subject, exactly why the Trustee wants to bind the beneficiaries of the trust to ownership of a worthless loan. This is a question raised by Judge Shack in New York 5 years ago. Nobody was listening. Now maybe some people are starting to see the wisdom of Shack’s question. If securitization was on the level, then the funding, assignment, assumption and payment would have all occurred as set forth under New York Law, the Internal Revenue Code, the provisions of the Pooling and servicing Agreement, which means underwriting according to industry standards and procuring insurance and credit default swap protection FOR THE INVESTORS, NOT THE BANKS WHO HAD NO MONEY IN THE DEAL.

So while you are on the subject, you might want to ask the trustee why they have made no claim against the insurance, credit default swaps and other payments received from co-obligors that were not disclosed to the borrower. In fact, you might want to ask whether the trustee views this as an account receivable, bond receivable or note receivable? If he or she doesn’t know, ask who would know — after all a trustee is like a receiver with special skills and experience in keeping the books for each trust and assuring customers there would be no commingling of funds. If the trustee doesn’t think the trust is owed any money other than the payments from the borrower, ask him or her, why not?

Once the trustee acknowledges that there were payments which should have been allocated to the bond receivable account or account receivable for the investors, then ask the big question, to wit: do your books and records show the same flow of money in and out of the trust as the figures used by the subservicer in declaring the default, and bringing the foreclosure action. Once you get by “I don’t know” the answer is going to be “NO” if you drill deep enough and keep asking the questions who knows, what do they know, how do they know it and is the party claiming to be the trustee really a trustee?

I ask you this: with each of these fine banking institutions maintaining separate corporations or divisions that provide trust services for even a few hundred thousand dollars, why wasn’t the same trust department used to provide trust services to the REMIC trust? Why is it managed by Reynaldo Reyes, VP, Asset management at Deutsch Bank? What fees were received by the trustee? What services did it perform?

Suddenly a new dawn is upon us. The banks knowing full well they were going to claim and get free houses started early and effectively in persuading the media, government and the public, including the borrowers themselves that to defend the foreclosure was immoral because the borrower was seeking a free house. The banks were smart enough to get out in front of that one, but it is coming back around to bite them. The homeowners are not seeking free homes, they are seeking reasonable deals based upon true facts instead of false representations, withholding of disclosures required by law and lies from the intermediaries who pretend to be the lenders or to act for the lenders when they do not.

Is there a free house? Yes, every time another Judge rubber stamps another foreclosure and allows a non-creditor to submit a “credit bid” (non-cash) and take title to a home they advanced no money to finance or purchase any loan.

 

WHY JOIN ORIGINATOR AND THE PARTY WHO PARTICIPATED IN THE ILLEGAL TABLE FUNDED LOAN

Amongst the cases I review and manage, the question was raised by one of the homeowners as to why I insisted on holding both the originator and subsequent intermediaries in the alleged securitization chain and/or table-funded loan where both the party alleging having (1) the capacity to sue see SEC Corroborates Livinglies Position on Third Party Payment While Texas BKR Judge Disallows Assignments After Cut-Off Date, (2) the standing to sue and/or the authority to initiate foreclosures and (3) financial injury where they allege sale or assignment of the note. The reason is simple from a tactical and legal point of view. I wish to close out their options to keep moving the goal posts.

Here is the answer I wrote to the customer, whose property is located in a judicial state. This particular person is being pro-active — always a wise choice — in that he has been making his payments, was told to to stop making payments if he wanted a modification which he did initially and then changed his mind and reinstated, and remains convinced he was the victim of various forms of fraud and crimes including false Appraisals of the supposedly fair market value of the property at the time of the loan closing or the alleged loan closing. His goal is not a free house. His goal is to pursue any rights you might have for modification or settlement of his claims with respect to the illusion of a loan closing and the office of a closing agent. As any reader of this blog knows, it is my opinion that any such loan closing was in fact an illusion and that all the parties participating in that illusion were paid actors pretending to be something they were not —  less creating plausible deniability for any of the improper actions of the intermediaries at the “loan closing.”

There is a reason why I insist on continuing the joinder of those two defendants. Embrace wants to be dismissed out with prejudice because it says that sold the loan to Wells. I want to say that they didn’t sell the loan to Wells.  If I prevail on that point then Wells Fargo is out as a plaintiff in any foreclosure they might file, and potentially out as a servicer since they might not be able to show any authority.  If that is the case then they owe you an accounting for all of the money they collected from you and a statement of what they did with the money that they collected from you. You might well have a cause of action against Wells Fargo for taking money under false pretenses.

 If I don’t Prevail on that point and somehow they are able to show that Wells Fargo paid for the loan and owns the loan by virtue of that payment, then Embrace is still a proper party in the action because they are the owner of record of a mortgage based on a note that was never funded by Embrace.  The issue here is whether or not the mortgage was transferred with the debt and that issue is tied closely with the issue of securitization, which both of them deny. I believe that I will be able to show that the loan is subject to claims of securitization on behalf of a loan pool that may never have existed or which might not exist now.  and if I am able to show that the loan pool was never funded and therefore could never have paid for the loan then the apparent authority of both defendants is eviscerated.

  Either way, I don’t want to let either of them out of the litigation quite yet.  If we prevail on the question of whether or not there was an actual sale and the sale was authorized (see my blog article from yesterday) then Embrace is the only party left on record in the recording office. At that point I would drill down on them to see whether or not they can show that they fulfill their part of the bargain with you, to wit: that you sign a note and they give you adequate disclosure under the law and they fund a loan to you. It is my position that they did not give adequate disclosure and that they did not fund a loan to you even if the loan was not securitized. The best they can say is that this was a table funded loan which is according to Reg Z of the Federal Reserve a predatory loan  per se if it was part of a pattern of conduct.

 Given the statistics and information we have about both defendants it is my opinion that the chances are 96% that the loan was allegedly sold into the secondary market where it is the subject of a potential claim from an asset pool. The problem I wish to reveal here is that the entire chain of ownership collapses on itself. The other problem that I want to addressed is who actually received the money that you pay every month and what did they do with it (who did they pay).  the strategy here is to show that regardless of whether or not a claim of securitization exists, there were co-obligors (Wells Fargo),  insurance payments and proceeds of credit default swaps and multiple resales all of which should be applied against the amount owed to the real creditor, whoever that might be, thus reducing the loan receivable.

 If I can tie the loan receivable to one which derives its value from the alleged loan made to you, even if the originator paid for it, then there is a strong argument for agency and allocation of receipts under which the payment of monthly payments and the receipt of insurance proceeds and the proceeds from other obligors (including but not limited to counterparties on credit default swaps) were received and kept, like in the Credit Suisse case. 

From that point forward it is a simple accounting task to allocate third-party receipts of insurance and hedge money to the benefit of the investors whether they received it or not. The auditing standards under the rules of the financial accounting standards Board would require a further analysis and allocation of the money received —  specifically the reduction of the loan receivable or bond receivable held by the investors (directly if the REMIC trust was ignored or indirectly if the agents for the trust purchased insurance and hedge products, the proceeds of which should have been credited to the investors.

 If the investors are the real creditors than the amount that they are entitled to have repaid to them does not exceed the amount they advanced. It practically goes without saying that if the money advanced from investors was based on their reasonable belief that they were acquiring title to the loans funded by the money advanced by the investors, they should recover part or all of their investment to the extent that the other players (see the SEC order against Credit Suisse) paid for insurance and hedge products using the money of the investors and kept the proceeds for themselves —-  thus explaining rising reports of profits in the banks who are supposedly merely intermediaries in the conduct of commerce which was in sharp decline.

 In the end, under a series of unjust enrichment and other common-law actions, as well as the requirements of statute and the terms of the promissory note executed by the borrower, all money received in that manner should reduce the principal balance due from the borrower because the creditor has already been paid either directly or indirectly through its agents who were either authorized or possessed of apparent authority.

In fact , the great likelihood is that the banks received substantial overpayments amounting to multiples of the original principal amount of the loan.  According to both law and the terms of the proposed agreement between the borrower and the apparent lender, subject to the terms of the documents themselves as well as state and federal law, the borrower is entitled to recover all such undisclosed payments and receipts which are defined under the truth in lending act as “compensation.”

 Thus while the creditors not entitled to any more recovery than the amount advanced under an alleged loan, the borrower is entitled to full recovery of all money paid in connection with or related to the loan received by the borrower, regardless of the original source of the loan and any agreements between the intermediaries in the alleged securitization chain that do not have the signature of the borrower on them. The reason is public policy. While securitization was not considered in the original passage of laws  it was the overreaching by banks to the disadvantage of consumers and borrowers that was sought to be discouraged by penalties that would be so great as to prevent the practice altogether.

 Usually it is money that is taken under false pretenses and the illusion of securitization claims is no exception. But in the case of the borrower it is the signature of the borrower that was obtained under the false pretenses that  the party obtaining the borrower’s signature. The consideration was the money advanced by an unrelated party tot he transaction (investor) who thought their money was first going through a REMIC trust that would give them certain tax advantages.

Regards

Neil

 Garfield, Gwaltney, Kelley & White

4832 Kerry Forest Parkway, Suite B

Tallahassee, Florida 32309

(850) 765-1236

SEC Corroborates Livinglies Position on Third Party Payment While Texas BKR Judge Disallows Assignments After Cut-Off Date

Maybe this should have been divided into three articles:

1. Saldivar: Texas BKR Judge finds Assignment Void not voidable. It never happened.
2. Erobobo: NY Judge rules ownership of note is burden of the banks. Not standing but rather capacity to sue without injury.
3. SEC Orders Credit Suisse to disgorge illegal profits back to investors. Principal balances of borrowers may be reduced. Defaults might not exist because notices contain demands that include money held by banks that should have been paid to investors.

But these decisions are so interrelated and their effect so far-reaching that it seems to me that if you read only one of them you might head off in the wrong direction. Pay careful attention to the Court’s admonition in Erobobo that these defenses can be waived unless timely raised. Use the logic of these decisions and you will find more and more judges listening with increasing care. The turning point is arriving and foreclosures — past, present and future — might finally get the review and remedies that are required in a nation of laws.

 

Courts and SEC Drilling Down on Reality of BANK Fraud.

The effects will be far-reaching. The complexity of the false securitization scam was intended to shield Wall Street from continuing its endless pattern of conduct of fraud, misdeeds, perjury and other crimes and other acts of contempt for the courts. The result was that the entire finance system and the economies of the world were turned upside down. Now we are going to see them turn right-side up.

It has taken years, but the SEC and the Courts are now unraveling the mysteries behind the secret curtains of the scam of securitization, which turns out to be nothing more than a cover for a giant PONZI scheme that fell apart as soon as investors stopped buying mortgage bonds. That is the hallmark of PONZI schemes — using the new investor money to pay the expected returns to the older investors.

If it was a legitimate business plan, the failure of the investors to buy more mortgage bonds would have no effect on the rest of the system. Each bond, each mortgage would have either succeeded or failed on its own merit. But that is not what happened.

As can be seen by the decisions noted below, Wall Street defrauded investors on many levels, defrauded the government, and defrauded the borrowers on mortgages they knew with certainty would never survive even a few months.

In confidential deals, the banks entered into agreements to be compensated for the failure of the mortgage bonds and defaulting loans and then simply lied to regulators, investors and borrowers — and kept the money for themselves instead of turning over the money to the investors who were going to lose more money than they had ever dreamed on “triple A” rated “insured” and “hedged” (credit default swaps).

The SEC is now ordering Credit Suisse (and soon others) to disgorge $60 million that clearly should have been paid to investors and thus reduced the accounts receivable of investors. A much better educated SEC and much better educated Judges are peeking behind the curtains and they don’t like what they see. These decisions are, in my opinion, the precursors of a wave of decisions that overturns the entire foreclosure tragedy.

The bottom line is that investors funded the mortgages (plus a lot of fees and “proprietary trading profits” that were hidden from the investors and indeed the world), the banks stole the money, the accounts due to the investors is much lower than what is alleged in foreclosure actions, and none of the foreclosers have any right to be in court because (a) they have no capacity to sue in the absence of financial injury caused by the borrower and (b) they are relying on assignments that in the eyes of the law never happened. They not only didn’t lose money, they made more money than most people imagined. Now they are being ordered to pay back the money they promised to investors whose losses will be correspondingly reduced.

How this will be apportioned to the principal balance supposedly due from borrowers has yet to be determined. But it is clear that the receivable from the only real lender is being reduced by the amount of money received by the intermediaries in the securitization chain — in deals that were intended to defraud investors on two levels — not giving the money that the investors should have received and withholding disclosure about the actual quality of the loans.

The reduction in loss or accounts receivable of the investors should proportionately reduce the amount due from borrowers, which means that most foreclosures were based upon a number of false premises: a balance due, a default by borrowers, and the right to submit a false credit bid at auction from a non-creditor on a “foreclosure” that should never have occurred in the first place. Ownership of the note can only be proven if the would-be forecloser received the actual note (not a photo-shopped “original”) in a transaction in which it paid money pursuant to the actual authority to enter into the transaction. That is three elements: the real note, real ownership of the note and real authority to enter into the transaction by which the loans were allegedly assigned years after the cut-off date. The authority for this position is (a) New York Law, (b) the Internal revenue Code, (c) constitutional requirements of due process, (d) the UCC requiring an instrument to be “negotiated rather than just delivered (meaning payment was involved) and (e) common sense, to wit: lenders are entitled to be repaid but only once.

It has been argued here that the REMICs were ignored and that therefore they could not possibly be in the ownership chain of the note and mortgage. We have also argued that the originator of the mortgage has originated nothing if they didn’t pay anything.

With the help of the SEC and the these two court decisions we can see that there are many reasons why the REMIC could not be the owner of the loan and that no party in the securitization chain could be secured unless we invent a new entity in which all the parties in the securitization chain are rolled into one entity.

In the absence of such an entity or the lawful ability to create one retroactively we are left with an unsecured debt — the amount of which runs the gamut from the banks owing the borrower money to the substantial reduction of the principal due after credit is given for the ill-gotten gains stolen by the banks from the investors. Given these facts, there is no legal justification for even contemplating the purported existence of a default by the borrower since the amount due, and the amount of the required payment are both unknown without an accounting from ALL parties in the securitization chain.

If the cut-off date and the Internal Revenue Code and the Pooling and Servicing Agreement all state that any transaction assigning a loan after the cut-off date is not allowed, then the assignment is void. Add to that New York law that expressly states that the transaction is void, not voidable, (see below) which means that legally it never happened. Without a valid assignment, there can be no foreclosure. Add to that the lack of any consideration, and you have a dead shark on your hands —something that struck fear into the hearts of homeowners, governments, and investors but is now lying, gasping for breath, as the finale nears.

There is nothing left to hide because the doors are all open. It will still take years to unravel the financial mess, but now we have a chance to change policy and direct relief to where it belonged all along — to the investors who supplied the money and the homeowners who were duped into crazy, exotic mortgages that hid the real objective: foreclosure.

REQUIRED READING: Read Carefully and Take Notes

“Plaintiff’s ownership of the note is not an issue of standing but an element of its cause of action which it must plead and prove.(e.s.) … 

… dismissal on a pre answer motion by the defendant and are waived if not raised in a timely manner.” (e.s.) Wells Fargo v Saitta 4/29/13 Slip Op 50675

140156203-Ero-Bobo

PRACTICE AND DISCOVERY NOTE: “

In fact, the identity of the owner of the note and mortgage is information that is often in the exclusive possession of the party seeking to foreclose. Mortgages are routinely transferred through MERS, without being recorded. (e.s.) The notes underlying the mortgages, as negotiable instruments, are negotiated by mere delivery without a recorded assignment or notice to the borrower. A defendant has no method to reliably ascertain who in fact owns the note, within the narrow time frame allotted to file an answer. In light of these facts and the fact that Defendant contested the factual allegations asserted in Plaintiff’s pleading, Defendant’s general denial is sufficient to contest whether Plaintiff owns the note and mortgage.”

4^th paragraph, page 11

“Since the trustee acquired the subject note and mortgage after the closing date, the trustee’s act in acquiring them exceeded its authority and violated the terms of the trust.The acquisition of a mortgage after 90 days is not a mere technicality but a material violation of the trust’s terms, which jeopardizes the trust’s REMIC status.”

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SEC FINDS FRAUD, ORDERS DISGORGEMENT OF ILLEGAL PROFITS.

http://www.sec.gov/litigation/admin/2012/33-9.368.pdf

This SEC decision is one that deserves several readings. It essentially condenses 6 years of teaching on this blog into one decision, although they have still not quite drilled down all the way on the money trail. But they have drilled down far enough to discover that the banks made settlements on buy-backs, kept the money and didn’t give to the investors because (1) they wanted to keep it for themselves and (2) the huge number of early defaults would have led the investors to question whether industry standards were being followed in the underwriting of these loans. Had that happened, the well would have dried and nobody would be buying mortgage bonds because they would be revealed as PONZI certificates.

Even if you have been following this blog for years, as I know many of you have done, reading this decision from the SEC will bring it all together as to who , what, where, why and when. Anyone who takes another step in litigation without reading this is stepping into the darkness.

—————————————————————

Next Case: Saldivar

And then there is this: the assignment is void, not voidable and therefore the banks can’t attack the ability of the homeowner to attack the assignment since they are arguing that the assignment never really took place. It puts the burden of proof back on to the banks, where it belongs — a burden they cannot sustain because they cannot prove anything that would give traction to their position of keeping the money, taking the houses, taking the insurance taking the credit default swap proceeds, and taking the federal bailouts, all without giving an accounting other than the subservicer’s partial snapshot consisting of accounting records reflecting ONLY transactions with the borrower, neither proving nor offering to prove the validity or existence of the assignment. What you have essentially is what I have said a few times before on this blog — offer, without acceptance or the right to accept and no consideration.

saldivar-memo-opinion

This decision is important because of the reasoning, the logic and most importantly the application of New York law. Virtually all the REMIC trusts were common law trusts formed under New York law for a lot of reasons. So this decision is extremely important as persuasive authority in its finding that if the REMIC is closed, there is nothing to make the assignment TO after the close-out date, which as the Judge points out is the start of business for the trust.

He reasons that if the assignment after the close out date could be ratified then it is voidable and not void. If it is voidable then the homeowner has no standing to challenge the validity of the assignment. But, the Judge says if the assignment was void ab initio then there is nothing to ratify because the event never happened. If the event never happened then the homeowner does have standing to challenge the validity if the assignment. Essentially the homeowners saying that he denies there was any assignment. If there was no assignment then any action by the assignee is without any right, justification or excuse.

It is potentially standing which is jurisdictional to be sure but it is in personam jurisdiction now instead of subject matter jurisdiction — or perhaps both.

As pointed out above, the capacity to sue involves the basic elements of any lawsuits for money or equitable relief based upon a money debt: (1) duty, (2) breach of duty, (3) injury and (4) causation — the injury was caused by the borrower. As pointed out by these cases, NONE of the required elements are present and therefore, there is no capacity to sue. Capacity to sue is close to the issue of standing but it isn’t the same thing. While standing involves jurisdictional issues over the parties, capacity to sue involves jurisdictional issues over the subject matter. There is no subject matter jurisdiction unless the foreclosing party can make a case for stating the four elements of any lawsuit.

The keys here are the Judge’s citation to two things. First that the law of New York says it is void and the court must use the laws of the state of New York — a position mercilessly pounded into the courts by the banks. Now that position is blowing up in their faces. Second, he points out that under the Internal Revenue Code contains huge penalties and negative economic consequences if the REMIC was still accepting assignments after the cut- off date. Thus the Judge used reason, logic, New York law, and the negative effect imposed by the IRC if the REMIC provisions were violated. We might also add that the PSA contained the same restrictions. He concludes that the assignment 3 years after the cutoff was void, not void able and that it was void ab initio which means that there was no effective assignment despite the fabrication of a piece of paper.

This puts Deutsch and others who have stated they are the trustee for the REMIC in a no-win position. To the extent they have corroborated the assignment they have delivered an economic blow to the investors in the REMIC — and are now subjected to potential liability in the trillions of dollars. If they have not tried to back up the assertions of those bringing foreclosure then they clearly won’t do it now. And it explains why no actual signature for an actual Deutsch officer or employee is on any document used in bringing the foreclosure.

The further interesting point is that this is the fire in the brush that flushes the investors out. They must corroborate what we have been saying — that their agents violated the restrictions of the pooling and servicing agreement and that they, the investors, cannot be held to be bound to the ultra vires actions of their agents. And it raises the question of what else did these intermediaries do that violated the terms of the investment in mortgage bonds? It raises, most importantly, the question of WHY they violated the terms of the PSA and prospectus.

The only rational answer is MONEY — like the insurance and CDS proceeds. But beyond that and tantalizingly raised in this decision is — if the investors gave up money and it wasn’t through the REMIC — then you have two choices, to wit: either they invested in nothing or, as I have repeatedly stated on the blog and in my expert testimony, they became involuntary common law partners in a common law general partnership.

This raises issues that Wall Street wants to stay very far from. All their authority comes from a PSA that is now revealed to have been violated resulting in the inescapable conclusion, using the logic from this Texas bankruptcy judge, that Wall Street has no power over these transactions — including servicing loans. This means we can insist on the identity of the investors and that the ONLY people to go to for HAMP are the investors or some new authorized agent. But remember that in a true common law general partnership with no documentation there are some real knotty problems as to how investors could hire a Servicer without 100% of the holders of what might indivisible interests in loans, insurance proceeds and credit default swaps bought with money from the investors.

Unrhetorical Questions — Money, Lies and Accounting Records: Gander and Goose

Why are our courts routinely accepting allegations and documents from foreclosing banks that they would summarily throw out if the same allegations and documents came from borrowers?

 How can possession of an ALLONGE construed as ownership

of the debt without any other evidence being presented?

Why is the standard definition of “Allonge” ignored?

IF THE COURT IS USING THE TERMS OF “ALLONGE”, “ASSIGNMENT”AND “ENDORSEMENT” INTERCHANGEABLY, WHY DOES ALL THE LITERATURE ON LEGAL DEFINITION AND ELEMENTS SAY OTHERWISE? ARE WE MAKING A NEW UCC?

WHY ARE COURTS ALLOWING ENDORSEMENTS (SHOULD BE SPELLED “INDORSEMENT”) IN BLANK TO TRANSFER THE LOAN WHEN THE BASIS OF THE PROPONENT’S AUTHORITY TO FORECLOSE IS A DOCUMENT THAT FORBIDS ACCEPTANCE OF  ENDORSEMENTS IN BLANK?

 I recently received a question from an old friend of mine who was a solicitor in Canada and who is frustrated with our court system that continues to assume the validity of loans that have already been thoroughly discredited. He has attempted on numerous occasions to get information through a qualified written request or a debt validation letter and has attempted to verify the authority of any party to whom he would address a request for modification of his loan in Florida. While chatting with him online I realized that this information might be of some value to attorneys and borrowers. The principal point of this article is the old expression “what is good for the goose is good for the gander.” For those of you who are unfamiliar with the old expression it means that there should be equality of treatment, all other things being equal. In mortgage litigation is apparent that when an allegation is made or a proffer is made through counsel rather than the introduction of evidence, the courts continue to function from both a misconception and  misapplication of the Rules of Court and the rules of evidence.

 When the case involves one institution against another, the same arguments that are summarily  rejected when they are advanced by a borrower are given considerable traction because the argument was advanced by a financial institution or financial player that identifies itself as a financial institution. In fact, a review of most cases reveals a much heavier burden on the party defending against the loss of their homestead than the party seeking to take it —  which is a complete reversal of the way our justice system is supposed to work.  The burden of proof in both judicial and nonjudicial states is constitutionally required to be on the party seeking affirmative relief and not on the party defending against it.

In the nonjudicial states, in my opinion, the courts are violating this basic constitutional requirement on a regular basis under circumstances where the party announcing a right to enforce a dubious deed of trust, collection on a dubious note, and therefore having the right to sell the property without judicial intervention despite the inability of the foreclosing entity to produce any evidence that it owns the debt, note, mortgage rights,  or even demonstrate a financial interest in the outcome of the foreclosure sale; to make matters worse the courts are allowing trustees on deeds of trust to be appointed or substituted even though they have a direct or indirect financial relationship with the alleged lender.

These trustees are accepting “credit bids” without any due diligence as to whether or not the party making the offer of the credit bid at auction is in fact the creditor who may submit such a credit bid according to the statutes governing involuntary auctions within that state.  In nonjudicial states the burden is put on the borrower to “make a case” and thus obtain a temporary restraining order preventing the sale of the property. This is absurd. These statutes governing nonjudicial sales were created at a time when the lender was easily identified, the borrower was easily identified, the chain of title was easily demonstrated, and the chain of money was also easily demonstrated. Today in the world of falsely securitized loans, the courts have maintain a ministerial attitude despite the fact that 96% of all loans are subject to competing claims by false creditors. The borrower is forced to defend against allegations that were never made but are presumed in a court of law. If anything is a violation of the due process requirements of the United States Constitution and the Constitution of most of the individual states of the union, this must be it.

 In the judicial states,  the problem is even more egregious because the same presumptions and assumptions are being used against borrowers as in the nonjudicial states. Thus in addition to being an unconstitutional application of an otherwise valid law, the judicial states are violating their own rules of civil procedure mandated by the Supreme Court of each such state (or to be more specific where the highest court is not called the Supreme Court, we could say the highest court in the state).  This is why I have strongly suggested for years that an action in mandamus be brought directly to the highest court in each state alleging that the laws and rules, as applied, violate constitutional standards and any natural sense of fairness.

 Here is the question posed by my Canadian friend:

(1)  The documents are phony documents (copies) produced by Ben Ezra Katz. It will cost me several thousand dollars to have a document expert evaluate the documents and then testify if they find them to be copies. At the beginning of this case, The Plaintiff’s attorney (Ben Ezra Katz associate) told the court (I do have a transcript) that they has found the ORIGINAL documents (note, mortgage, etc.) and that they had couriered the ORIGINAL documents to the clerk of Court. They did a Notice of Filing which on its’ face states ORIGINAL documents. I can not afford a document expert, however the AG in S. Florida has an open investigation into this case. Would I be out of line in requesting that they include this case per-se as part of their investigation and accordingly make a determination as to if or if not the subject documents which are on file with the clerk of court are originals or copies ??
(2)  The only nexus that Wells Fargo produces to establish themselves as a real party in interest is a hand filled out allonge (copy attached). Please note that the signer only signs as “assistant secretary” without further specifics. On the basis of what they provide it is virtually impossible to depose this person to determine if she actually did or did not sign this document, and if so what is her authority to do so.  I want to launch some sort of discovery that seeks to discover what else the Plaintiff has which would support the alleged allonge. Things such as any contracts, copies of any consideration, what was the consideration, who authorized the transaction, etc.  Do you have any suggestions in this regard. I bounced this off my attorney and I am not sure that we are on the same page. He wants to go to trial and have the proven phony documents as the main thrust. I agree with that, however I also would feel far better if we were able to cut them off at the knees as to standing such as the alleged allonge is part of the phony documents, and there are no documents that the Plaintiff can produce to support not only its’ authenticity, but its’ legitimate legal function. I do not like to have all of my eggs in one basket.

 And here is my response:

 You are most probably correct in your assessment of the situation. If they lied to the court and filed phony documents you should file motion for contempt. You should also file a motion for involuntary dismissal based on the fact that they have had plenty of time to either come up with the original documents or alleged facts to establish lost documents. The affidavit that must accompany the allegation of lost documents must be very specific as to the content of the documents and the path of the documents and it must the identify the person or records from which the allegations of fact are drawn. They must be able to state with certainty when they last had the original documents if they ever did have the original documents. If they didn’t ever have the original documents then an affidavit from them is meaningless. They have to establish the last party had physical custody of the original documents and establish the reason why they are missing. If they can’t do those things then their foreclosure should be dismissed. The more vague they are in explaining what happened to the original documentation the more likely it is that somebody else has the original documentation and may sue you again for recovery. So whatever it is that they allege should result in your motion to strike and motion to dismiss with prejudice. As far as the attorney general’s office you are correct that they ought to cooperate with you fully but probably incorrect in your assumption that they will do so.

I think you should make a point about the allonge being filled out by hand as being an obviously late in the game maneuver. You can also make a point about the “assistant Sec.” since that is not a real position in a corporation. Something as valuable as a note would be reviewed by a real official of the Corporation who would be able to answer questions as to how the note came into the possession of the bank (through interrogatories or requests for admission) and  what was paid and to whom for the possession and rights to the note, when that occurred and where the records are that show the payment and how Wells Fargo actually came into possession of the note or the rights to collect on the note. As you are probably aware the predecessor that is alleged to have originated the note or alleged to have had possession of the note must account for whether they provided the consideration for the note and what they did with it after the closing. If they say they provided consideration than they should have records showing a payment to the closing agent and if they received consideration from Wells Fargo they should have those records as well.

But the likelihood is that neither Option One nor Wells Fargo ever funded this mortgage which means that the note and mortgage lack consideration and neither one of them has any right to collect or foreclose.   In fact, since they are taking the position that the loan was not securitized and therefore that no securitization documents are relevant,  neither of them can take the position that they are representing the real party in interest as an authorized agent for the real lender.  And the reason you are seeing lawsuits especially by Wells Fargo in which it names itself as the foreclosing party is that the bank knows that Iit ignored and routinely violated essential and material provisions of the securitization documents including the prospectus and pooling and servicing agreement upon which investors relied when they gave money to an investment banker.

In that case, since you seek to modify the loan transaction and determine whether or not it is now or is potentially subject to  a valid mortgage, you should seek to enforce a request for information concerning the exact path of the money that was used to fund the mortgage. And you should request any documentation or records showing any guarantee, payment, right to payment, or anything else that would establish a loan to you where actual money exchanged hands between the declared lender and yourself. The likelihood is that the money was in a co-mingled account somewhere —  possibly Wells Fargo —  which came from investors whose names should have been on the closing and the closing documents.  Those investors are the actual creditors. Or at least they were the actual creditors at the time that the loan money showed up at the alleged “loan closing.” Since then, hundreds of settlements and lawsuits were resolved based upon the bank tacitly acknowledging that it took the money and used it for different purposes than those disclosed in the prospectus and pooling and servicing agreement. These settlements avoid the embarrassing proof problems of any institution since they not only ignored the securitization documents, more importantly, they chose to ignore all of the basic industry standards for the underwriting of a real estate loan because the parties who appeared to be underwriting the loan and funding the loan had absolutely no risk of loss and only had the incentive to close deals in exchange for sharing pornographic amounts of money that were identified as proprietary trading profits or fees.

And the reason why this is so important is that the mortgage lien could never be perfected in the absence of the legitimate creditor who had advanced actual money to the borrower or on behalf of the borrower. This basic truth undermines the industry and government claims about the $13 trillion in loans that still are alleged to exist (despite multiple payments from third parties in multiple resales, insurance contracts and contracts for credit default swaps). The abundant evidence in the public domain as well as the specific factual evidence in each case negates any allegation of ultimate facts upon which relief could be granted, to wit: the money came from third-party investors who are the only real creditors. The fact that the money went through intermediaries is no more important or relevant than the fact that you are a depository bank is intended to honor checks drawn on your account provided you have the funds available. The inescapable conclusion is that the investors were tricked into making unsecured loans to homeowners and that the entire foreclosure scandal that has consumed our nation for years is based on completely false premises.

Your attorney could pose the question to the court in a way that would make it difficult for the court to rule against you. If the lender had agreed to make a loan provided you put up the property being financed PLUS additional collateral in the form of ownership of a valid mortgage on another piece of property,  would the court accept a handwritten allonge from you as the only evidence of ownership or the right to enforce the other mortgage? I think it is clear that neither the banks nor the court would accept the hand written instrument as sufficient evidence of ownership and right to collect payment if you presented the same instruments that they are presenting to the court.

PRACTICE HINT: In fact, you could ask the bank for their policy in connection with accepting its mortgages on other property as collateral for a business loan or for a loan on existing property or the closing on a new piece of property being acquired by the borrower. You could drill down on that policy by asking for the identification of the individual or committee that would decide whether or not a handwritten allonge would be sufficient or would satisfy them that they had  adequate collateral in the form of a mortgage on the first property and the pledge of a mortgage on a second piece of property.

The answer is self-evident. No bank or other lending institution or lending entity would loan money on the basis of a dubious self-serving allonge.  There would be no deal. If you sued them for not making the loan after the bank issued a letter of commitment (which by the way you should ask for both in relation to your own case and in relation to the template used by the bank in connection with the issuance of a letter of commitment), the bank would clearly prevail on the basis that you provided insufficient documentation to establish the additional collateral (your interest in the mortgage on another piece of property).

The bank’s position that it would not loan money on such a flimsy assertion of additional collateral would be both correct from the point of view of banking practice and sustained by any court has lacking sufficient documentation to establish ownership and the right to enforce. Your question to the court should be “if justice is blind, what difference does it make which side is using an unsupportable position?”

HSBC Hit with Foreclosure Suit; FHA’s $115 Billion Loss Scenario; Return of the Synthetic CDO?
http://www.americanbanker.com/bankthink/hsbc-hit-with-foreclosure-suit-fhas-115-billion-dollar-loss-scenario-1059622-1.html

HSBC Foreclosure Law Violations
http://www.wealthdaily.com/articles/hsbc-foreclosure-law-violations/4356

Trouble Looms For Bank Of America, AIG’s Objections Have Merit
http://www.forbes.com/sites/halahtouryalai/2013/06/05/trouble-looms-for-bank-of-america-aigs-objections-have-merit/

Massachusetts foreclosures decline 79% as local laws stall the process
http://www.housingwire.com/news/2013/06/05/massachusetts-foreclosures-decline-79-local-laws-stall-process

———————————————–

Money from thin air? If the bank does not create currency or money then where does the money come from? Answer investor deposits into what they thought was an account for a REMIC trust. And if the money came from investors then the banks were intermediaries whether they took money on deposit, or they were the underwriter and seller of mortgage bonds issued from non existent entities, backed by non existent loans. And any money received by the banks should have been for benefit of the investors or the REMIC trust if the DID deposit the money into a trust or fiduciary account.Dan Kervick: Do Banks Create Money from Thin Air?
http://www.nakedcapitalism.com/2013/06/dan-kervick-do-banks-create-money-from-thin-air.html

Supreme Court foreclosure ruling tilts toward banks
http://www.bizjournals.com/portland/blog/real-estate-daily/2013/06/foreclosure-ruling-tilts-toward-banks.html

Your student loan isn’t really a loan!
http://www.salon.com/2013/06/05/let_college_students_go_bankrupt/

How, When, Where and Why to Hire an Attorney

REMEMBER TO DIAL IN ON NEW NUMBER FOR MEMBERS’ TELECONFERENCE TONIGHT: 1-626-677-3000

Editor’s Comment: Every case is different so this is not a comment on any specific case nor should you act on anything you read here without in-depth consultation with a trusted adviser.

As I have stated many times in my appearances at seminars, radio and television the first rule is don’t exchange a predatory lender for a predatory attorney. The same holds true for any organization offering services to consumers or homeowners in financial distress. The more popular ones may have achieved that status by good marketing and advertising rather than by efficient use of their skills which produces a satisfactory result to the client.

On the other hand, homeowners and consumers must understand that the practice of law is a business. None of these businesses played any major part in creating your distress. None of them owe you anything; nonetheless most homeowners and consumers contact my organizations do so under the mistaken belief that we are a foundation with infinite resources or that because they were screwed by the banks there is some special obligation on the part of the attorney, counselor, or other service provider. No such obligation exists.

The amount of money that such service providers charge is determined by the marketplace, ethical rules and disciplinary rules, and in certain cases by a web of regulatory or statutory restrictions or prohibitions. As soon as any service provider accepts you as a customer they are creating a liability for themselves and if they are offering a payment plan they are creating a risk that they will not be paid a reasonable fee for the services that they provide.

The second rule is that anyone who guarantees you a result is either lying or stupid. Stay away from them. Anyone who will tell you that they can do anything a lawyer can do for much less money is essentially offering their services under the banner of “unauthorized practice of law” which in some states is an actual felony. But that doesn’t mean that you can’t use alternative service vendors to assist you in getting information, analyzing information and presenting the information in a format that would be useful to an attorney or judge.

When speaking to a prospective client I often hear that other lawyers are charging much less than what I charge. My answer is always the same, to wit: if you’re shopping for price than you are in the wrong place; if you want Neil Garfield to represent you then you are in the right place but you have to choose whether you are willing to pay a higher price for a 66-year-old veteran of Wall Street, real estate investments and trading, and 34 years as a trial lawyer.

In places like South Florida where competition has become intense, several law offices have created the illusion that they are an anti-foreclosure mill by offering low down payments and low monthly payments. Such law firms are concentrating on developing volume rather than developing their skills and prowess in the courtroom. I have had to clean up the mess of many prior attorneys in order to present the case to a new lawyer. And of course the prospective client has mistaken the actions or inaction of prior counsel as a reason to distrust any member of the bar; such prospective clients jump from the frying pan into the fire when they enter into various agreements involving the execution of documents transferring title and contingency fee agreements which lack specificity on how they will be applied.

Back in 2007 and 2008 couldn’t find a lawyer that understood what I’m talking about or who would be willing to defend a foreclosure action for any amount of money because they thought they would lose every one of those cases. Now a number of cases are being lost not because there are no lawyers, but rather because the lawyers have taken on a large caseload without enlarging their staff to handle it. Therefore they end up unprepared in court conceding points that should be in issue.

As I have been saying for the last two or three years we are far beyond the point where a homeowner representing themselves is likely to get any satisfactory result. You will hear anecdotal stories where sometimes the homeowner was able to get a good result; but for the most part these cases are won on a knowledge of civil procedure and a use of strategy and tactics based upon prior experience in motion practice and trial practice. In this case you also want people who are already knowledgeable about negotiable instruments, the UCC,  contract law, property law, and the actual workings of Wall Street. The lawyer should be competent to be able to follow both the money trail and the paper trail and to compare the two as part of his preparation for his appearance in court.

The time to consult with an attorney is at the first moment that you think you might have a problem. Going to a neighbor or friend and following advice based upon a small number of anecdotal tales will probably result in you producing documents or making statements that will be later used against you. Like when the bank tells you what to say in a hardship letter making it clear that you couldn’t possibly pay any mortgage when in fact you could make mortgage payments based upon reasonable terms. Also, when a representative of the bank tells you that you should stop making payments they are telling you to breach the contract you signed. I make it a practice never to advise clients to do anything that puts them in a worse position than they are already in.

There is a built-in conflict between lawyer and client that is not ever likely to be resolved. The client wants a particular result and the lawyer wants to get paid for the work he has done regardless of the result. They are both right. The reality is that the lawyer should get paid for the work that he does and hopefully client has chosen a lawyer carefully bus and enhancing the likelihood that they will get a satisfactory result.  There is also the age old conflict over contingency fees and how they should be applied. At the moment my opinion is that the use of a contingency fee when the only result is a reduction in the amount of the principal demanded is probably going to be hard to enforce and may violate ethical rules and disciplinary rules governing how attorneys charge for their services. On the other hand where there is a recovery of an actual cash payment, a contingency fee is perfectly valid.

The argument over how attorneys get paid a lot of money on a contingency fee can be avoided simply by paying the attorney for the work he does. In the absence of being paid a reasonable fee in full the attorney is entitled to enhance the likelihood of him being paid with a contingency fee. Contingency fees vary from 10% or the way up to 50% depending upon the state, local rules and the situation at hand and usually do not cover the cost of attorney’s fees for an appeal or an administrative action that is ancillary to the civil proceedings in state or federal court.

The time to change attorneys is when you have lost faith in the capacity or willingness of the attorney or law firm to advocate on your behalf with all available resources. You should be aware that the successor attorney will be completely disinterested in what you have already paid the prior attorney. As far as the new attorney is concerned, it is a new case and requires a retainer and monthly payments, if that is what the attorney offers.

When you interview an a prospective attorney you should take the lead and inquire about his or her experience and what the reasonable expectations should be on the outcome of the case. AND if you know about a deadline, then keep after the lawyer and make sure they don’t blow the deadline.

I’ll be taking questions tonight on the members teleconference. REMEMBER TO USE THE NEW NUMBER: 1-626-677-3000

Short sales may show up on credit reports as foreclosures
http://www.inman.com/2013/06/04/short-sales-may-show-up-on-credit-reports-as-foreclosures/

WANT TO KNOW WHY NO PROSECUTIONS OF TOO BIG TO JAIL BANKERS? LOOK NO FURTHER THAN ERIC HOLDER: http://www.huffingtonpost.com/2013/06/04/eric-holder-1999-memo_n_3384980.html?ncid=txtlnkushpmg00000029

Rapid Fire Foreclosure Trials Clear Cases, Concern Attorneys
http://4closurefraud.org/2013/06/03/rapid-fire-foreclosure-trials-clear-cases-concern-attorneys/

EVERYONE EXCEPT THE BANKS: Feds Target Bid-Rigging Scams at Foreclosure Auctions
http://realtormag.realtor.org/daily-news/2013/06/04/feds-target-bid-rigging-scams-foreclosure-auctions

Florida’s Foreclosure Act HB 87 May End Up in Legal Battle
http://4closurefraud.org/2013/06/04/floridas-foreclosure-act-hb-87-may-end-up-in-legal-battle/

The Stealth Problem of Predatory Mortgage Modifications
http://www.nakedcapitalism.com/2013/06/the-stealth-problem-of-predatory-mortgage-modifications.html

WHAT HAPPENED TO ALL THE DATA COLLECTED WHEN THE OCC WAS REQUIRING REPORTING? WHY CAN’T HOMEOWNERS AND THEIR ATTORNEYS GET THAT INFORMATION? Where Has All the Info Gone, Long Time Passing?
http://www.huffingtonpost.com/joel-sucher/where-has-all-the-info-go_b_3356243.html

New York attorney general sues HSBC over foreclosures
http://www.latimes.com/business/la-fi-hsbc-sued-20130605,0,709209.story

HSBC in dock for ‘flouting US laws on mortgage foreclosures’
http://www.independent.co.uk/news/business/news/hsbc-in-dock-for-flouting-us-laws-on-mortgage-foreclosures-8644770.html

Elizabeth Warren Calls for Grassroots Movement on Student Loan Debt
http://www.motherjones.com/mojo/2013/06/elizabeth-warren-grassroots-movement-student-loan-debt

Why is the Media Ignoring the Obvious?

My consistency should be lauded instead of ignored. I represent one of the few people left who were on Wall Street in the late 1960′s and early 1970′s and who used layered bundling of derivative securities in the 1980′s to finance investments in commercial and residential real estate. Back when I started on Wall Street in my early 20′s I fell right in with those who set the tone and culture of Wall Street that frankly has not changed since the dawn of securitization (the breaking up of an investment into smaller shares so that more people with more money could provide capital to capitalist enterprises). We are talking about 2,000 years of human history where the Romans invented the idea of condominiums and cooperatives, the prejudices against Jews forced them into the jewelry and lending business because they were not allowed to do anything else, and the first appearance of pieces of paper used interchangeably with the actual exchange of goods and services.

When I was on Wall Street, the last thing on our minds was the quality or risk of any deal. We were there to make money move and that is what produced revenue. Eventually in economic history. it was discovered that once you could convince people to leave their gold, or securities with you, there were open ended moral hazards that were made legal by control of the purse strings by Medici, Rothschild, Warburg, Morgan and dozens of others. They did it quite simply through blackmail, bribery and intimidation. Nothing has changed. The result is always the same — the money moves up to the people who already have it while the rest of the population is enslaved. And about every five years, as Mayer has always said, bankers tend to step on a rake — only this time they are getting away with it, which is a first. They never even bothered  to throw a scape-goat under the bus because they didn’t need to — they were immune.

So we have bankers moving with impunity in our society making your money THEIR money by tricks of the trade. Case in point: student loans, where banks were allowed to insert themselves into a system that was already working, rake in enormous profits and leave students’ future mortgaged beyond any hope of repayment. Same as with mortgages. Any economist or businessman will tell you the same thing: without educated, trained workers, developing and evolving in a society, the work and the opportunities are going to shift geographically to where the workers are educated, trained and able to handle the jobs. We currently have 3 million jobs that are unfilled because we have seen education as an expense rather than an investment. It is like not saving for retirement and then being surprised, when you can’t work anymore (because of physical limitations or because you don’t know a damn thing about how business is conducted by the younger generations) and suddenly you are shocked to discover you are broke and depending upon social security and the largesse of family who are only recreating the same cycle you started and your father started in the first place.

And of course, the student loans won’t be repaid anymore than the mortgage loans are getting repaid. That is because the loans were stupid, they included marketing and sales commissions for people to encourage young, inexperienced people to take out loans for more than they needed with little or no hope of ever repaying the loans. Since they were guaranteed by the government, thanks to the banking lobby, and since they couldn’t be discharged in bankruptcy (mostly) thanks to the banking lobby and since in the last 15 years the loans were securitized removing the last vestiges of risk, the increasing interest rate (set to double soon if congress doesn’t act) and onerous terms of repayment are going to force graduate to seek out anything that provides immediate income instead of find their unique fit and contribution into society and developing new ideas and innovating because of their newly acquired knowledge,  skills and creativity.

Now we have banks reporting profits that are stupendous. I use that word because it is plain stupid. Banks are supposed to make money by lending at a higher rate than their cost of capital. But now they are lending the money of investors with no cost and stealing around 25%-30% of the investor money right off the top (tier 2 yield spread premium). Is it legal? NO! But our attorney general chooses to see it another way or to look away entirely.

The “free” press has slashed budgets for investigative reporters, and is simply parroting what government, Wall Street and big business are telling them to say. So when I am interviewed, my answers are and have been the same since the  1980′s when I was a talk show host on South Florida radio — people, consumers of information from the Press, and citizens who elect public officials must insist on something different. The pronounced apathy of the American voter is equivalent to the boss taking a ten year holiday — what did you think was going to happen in your absence?

Here are some issues I always bring up and those of you who get to speak to other people, the media or government should keep these in mind:

Why are you not investigating the representations on bank balance sheets in view of the fact that they are losing in Foreclosures suits — whenever they are required to show proof of payment and proof of loss?

How can banks be making money when they loan less money? How could banks own mortgage bonds when we know they were only created when they had investors committed and then sold forward without actual loans backing them?

How can the mortgage bonds be “mortgage-backed” when the entity that issued them never received any funding and never received the loan receivables? Why can banks claim the loss when the loss belongs to investors?

Why didn’t the banks instruct the closing agents to name the asset pools as the lender, the payee, the secured party on new or acquired mortgages?

Why are you not asking your own legal department how a mortgage can be perfected lien when the named “lender” never funded the loan and never funded the acquisition of the loan?

How hard is to see that the trail of real transactions (where real money exchanged hands) doesn’t match up with the paperwork given to borrowers and violates the terms of the paperwork given to lenders)?

I could go on with a hundred more questions, as you readily see from my blog www.livinglies.wordpress.com. Believe me, I know what these bankers did. The roots of this crisis were planted in the 1960′s and 1970′s. I was there working on Wall Street as an investment banker and a principal in a small brokerage firm.

I helped create what people now call derivatives and I was there when the bond traders and creative minds figured out how to create junk bonds, replacing the search for undervalued bonds.

I was there when the first flicker was conceived of masquerading junk bonds as investment grade if they were backed by mortgage loans. And I was there when they realized that they could be sure of the failure of mortgage loans and make a fortune betting on it without ever putting up a dime. The trick on Wall Street has always been to take the profits and allocate losses to investors. Why is this so difficult for the media when the facts are all in the public domain?

Mortgage Investors Get Blindsided

MORTGAGED DIPLOMAS

The Sub-Prime Mortgage Market Is Heating Up Again
http://www.businessinsider.com/sub-prime-mortgage-market-is-heating-up-2013-6

GRETCHEN MORGENSON: http://http://www.nytimes.com/2013/06/02/business/in-bank-earnings-quantity-over-quality.html?emc=eta1&_r=0

BofA $8 Billion Mortgage Deal Before Judge After 2 Years – Bloomberg
http://www.bloomberg.com/news/2013-06-03/bofa-8-billion-mortgage-deal-before-judge-after-2-years.html

Feds crack down on foreclosure auction scams — aiming at everyone except the banks, who submit “credit bids”instead of cash at each alleged auction.
http://bigstory.ap.org/article/feds-crack-down-foreclosure-auction-scams

12 QUESTIONS THAT COULD END THE CASE

http://dtc-systems.net/2013/05/top-democrats-introduce-legislation-protect-military-families-foreclosure/

CALL OR WRITE TO FLORIDA GOVERNOR — THE CLOCK IS TICKING

Veto Clock Ticking on Florida Foreclosure Bill HB 87
http://4closurefraud.org/2013/05/30/veto-clock-ticking-on-florida-foreclosure-bill-hb-87/

DISCOVERY TIP: Has anyone asked for a received the actual agreement between the party designated as “lender” and MERS? Please send to neilfgarfield@hotmail.com.

Questions for interrogatory and request to produce, possible request for admissions:

(1) If we accept the proffer from opposing counsel that the transaction (i.e, the loan) was done for the express purpose of fulfilling an obligation to investors for backing mortgage bonds through a REMIC asset pool, then why was MERS necessary?

(2) Why wasn’t The asset pool disclosed to the borrower?

(3) Why wasn’t the asset pool made the payee on the promissory note at origination of the loan?

(4) Why wasn’t the asset pool shown on a recorded assignment immediately after closing as the new payee and secured party?

(5) What was the business purpose of using MERS?

(6) Was the lender the source of funding on the loan or was it too just another nominee?

(7) Is there any identified real party in interest on the note and mortgage as the creditor?

(8) If there is no real party in interest on the note and mortgage, then how can the mortgage be considered perfected when nobody has notice of who they can go to for a satisfaction or release or rescission of the mortgage?

(9) In which document and what provision are the parties at the loan “closing” empowered to identify a party other than the source of funds as the payee and secured party?

(10) Who were the parties to the loan? — (a) the borrower and the source of funds or (b) the borrower and the holder of paper documenting a transaction that is incomplete (the payee and secured party never fulfilled their obligation to fund the loan)?

(11)If the servicer’s scope of employment, authority or apparent authority was limited to tracking the payments of the borrower only, and did not include accounting for the creditor, then how does the servicer know what is contained in the creditor’s accounting records? — Since the creditor in any loan subject to claims of securitization received a bond whose indenture provided repayment terms different than those terms signed by the borrower to another party entirely, how can any finding of money damages be determined by any court without a full accounting for all transactions relating to the loan?

(12) What is the identity of the party who was injured by the refusal of the borrower to make any further payments? To what extent were they injured? Are they qualified to submit a “credit bid” or must they pay cash for the property at auction? If they are not qualified to submit a credit bid then (see below) then under what legal theory should they be permitted to foreclose or for that matter seek any collection? Are these intermediary parties violating the FDCPA because they are neither the creditor nor the agent of the creditor and yet demanding payment for themselves?

THE COURTS ARE STARTING TO GET THE POINT:

FLORIDA 5th DCA: To establish standing to foreclose, Plaintiff must show that it acquired the right to enforce the note before it filed suit to foreclose. Important: the right to enforce the note means either they were the injured party or they represent the injured party. An assignment from a party who is proffered to be the injured party must be established with proper foundation from a competent witness.

GREEN V CHASE 4-5-2013

————-

FLORIDA 4TH DCA: DATES MATTER: While the note introduced had a blank endorsement (note conflict with PSA, which is supposedly source of authority to represent creditor: note may not be endorsed in blank and in fact must be endorsed and assigned in recordable form and recorded where the law allows or requires it) and was sufficient [under normal rules governing commercial transactions --- except if the parties agree otherwise which they certainly did in the PSA) to prove ownership by appellee, who possessed the note, nothing in the record (e.s) shows that the note was endorsed prior to filing of the complaint (or if you want to use this decision by analogy prior to initiation of the notice of default and notice of sale in non-judicial states). The endorsement did not cotnain a date, nor did the affidavit filed in support of the motion for summary judgment contain any sworn statement that the note was owned by the Plaintiff on the date that the suit was filed. [PRACTICE TIP: THEY DON'T WANT TO GIVE A DATE BECAUSE THAT WILL LEAD TO YOU ASKING FOR DETAILS OF THE TRANSACTION, PROOF OF PAYMENT, THE ASSIGNMENT AND WHETHER THE TRANSACTION CONFORMED TO THE PSA, NONE OF WHICH WILL BE PRODUCED. But  considering past behavior it is highly probable that they will fabricate documents that ALMOST give you a copy of the canceled check or wire transfer receipt but don't quite get them to the finish line. Being aggressive on this point will clearly  put them on the defensive].

4th DCA Cromarty v Wells Fargo 4-17-2013

2d DCA: IS THE TRANSACTION GOVERNED BY THE UCC PROVISIONS EVEN IF THE PARTIES HAVE AGREED OTHERWISE? This is the nub of the issue in the Stone case (link below). We think that the courts are confused i applying ordinary rules from the UCC regarding the negotiation of commercial instruments and certainly we understand why — the UCC is the basis upon which we can conducted trusted business transaction and maintain liquidity in the marketplace. But if the party attempting to foreclose derives its powers from the Prospectus, PSA,or purchase and Assumption Agreement, then they cannot invoke the powers in those instruments on the one hand and disregard the provisions that prohibit blank endorsements of loans of dubious quality without an assignment that can only be accepted by the supposed creditor if it complies with the assignment provisions of the agreement under which the foreclosing party is claiming to have authority to enforce the note and mortgage. And this is precisely the risk and consequences of a lawyer not understanding claims of securitization and the reality of what the UCC means when it says things like “unless otherwise agreed” and “for value.” Without raising those issues on the record, the homeowner was doomed:

Stone v BankUnited May 3 2013

OCC: 13 Questions to Answer Before Foreclosure and Eviction

13 Questions Before You Can Foreclose

foreclosure_standards_42013 — this one works for sure

If you are seeking legal representation or other services call our South Florida customer service number at 954-495-9867 and for the West coast the number remains 520-405-1688. In Northern Florida and the Panhandle call 850-765-1236. 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.

SEE ALSO: http://WWW.LIVINGLIES-STORE.COM

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.

STRATEGY: FORECLOSURE BY PRETENDER LENDER FOLLOWED BY BORROWER’S ACTION FOR DAMAGES

OCC: 13 Questions to Answer Before Foreclosure and Eviction

13 Questions Before You Can Foreclose

foreclosure_standards_42013 — this one works for sure

If you are seeking legal representation or other services call our South Florida customer service number at 954-495-9867 and for the West coast the number remains 520-405-1688. In Northern Florida and the Panhandle call 850-765-1236. 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.

SEE ALSO: http://WWW.LIVINGLIES-STORE.COM

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 PROVIDE ACTIVE LITIGATION SUPPORT 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 ANALYSIS AND PRACTICE TIPS FOR LAWYERS: One of the things that I noticed about the cases which I have followed or which have been reported to me anecdotally is that the borrower or borrower’s attorney invokes defenses and counterclaims that makes the case far more complex than the judge is willing to hear.

If you really want to win on the trial court level or make a good record for a successful appeal, the legal and factual argument needs to be simplified. I have previously made a big point about how a judge has very little choice but to allow the foreclosure to proceed once the elements of a foreclosure have been admitted by the borrower or borrower’s attorney. All the other issues are really the basis of a lawsuit in which the causes of action seek the remedy of monetary damages.

Foreclosure is an equitable remedy which calls for less judgment on the part of the judge that it does for him or her to perform a ministerial act. The mistake that is being made by most attorneys (and perhaps I added to the confusion unintentionally) is that  they have failed to distinguish between the equitable and legal remedies. This calls for some careful action by the lawyer or else he or she will be open to a later argument of collateral estoppel or res judicata.

In the nonjudicial states the equitable remedy of foreclosure is made even more ministerial and less subject to challenge based upon the merits of the claim of the pretender lender to collect payments from the borrower and to foreclose when the borrower ceases to make payments. The fact that the system was not set up by the legislature to accommodate or regulate wrongful foreclosures by non-creditors is not a basis for asking a judge to rewrite the law.

In Massachusetts this issue was highlighted in the Eaton case. Before that case Massachusetts specifically allowed the equitable remedy of foreclosure merely upon allegation and proof that the foreclosing party possessed the mortgage document under circumstances where there was at least probable cause to believe that the foreclosing party had the right to enforce it and use it.

In the Eaton case the court was careful to state that the ruling applied only prospectively and not retroactively. In that case they attempted to deal with the issue of whether an actual debt existed,  whether a creditor debtor relationship existed between the foreclosing party and the homeowner, whether the note and mortgage were valid, and whether a foreclosure could go forward without any showing that the foreclosing party was a creditor or even had possession of the note. The court decided that ownership of the note was essential to allowing the foreclosure to proceed.

Based upon the huge volume of statistical and anecdotal evidence there can be little doubt that most of the foreclosures and foreclosure sales have been illegally conducted and wrongful. That doesn’t mean they are void. The purpose of the statutes as they are written is to enhance  liquidity and certainty in the marketplace; thus they allow almost every type of foreclosure to proceed through the conclusion of those proceedings as set forth in the statutes, with the added presumption that if malfeasance lay at the core of the foreclosure proceeding, the borrower would have an adequate remedy at law, to wit: a lawsuit for compensatory damages, punitive damages and exemplary damages.

Of course we all know that an action for damages is not an adequate remedy for somebody who has been evicted from their own home. But the problem is that before the securitization scam, the idea that anyone would attempt to foreclose on a mortgage without being a creditor and having no relationship to a creditor and without having a single cent invested in either the origination or acquisition of the loan would have been regarded as pure fantasy. From that standpoint the legislation makes sense. If you feel you are fighting an uphill battle, look at it from the point of view of the legislature and the banks that were making conventional loans and you can easily see why the law facilitated the mortgage foreclosure process.

When I was first interviewing law professors and judges back in 2007 and 2008 the unanimous opinion was that it would be very difficult to stop the foreclosures from proceeding but very easy to win an action after the foreclosure seeking monetary damages. The interesting thing here is that these people instantly understood that the lawsuit would have alternative counts. Either the pretender lender had an actual interest in the loan as evidenced by the note and mortgage or they didn’t.

If they did have an interest in the loan then the causes of action would be based on breach of contract and perhaps unjust enrichment along with statutory violations taken from federal and state law. There could also be an action for wrongful foreclosure that is recognized to exist in the common law and appears to be more of an action in tort than contract.

If they didn’t have an interest in the loan then there would be no action in contract since you would be alleging a lack of privity and defects in the disclosure documents, and closing documents including but not limited to the note and mortgage. It appears to me that this action would be based mostly on intentional interference in the contractual relations of another and both statutory and common law fraud in the inducement and fraud in the execution. Statutory actions brought under the truth in lending act might be sufficient to state a cause of action for treble damages, interest, costs of the action and recovery of attorney’s fees.

The point raised by the law professors and other experts with whom I consulted was that the goalpost would constantly be moved as the borrower attempted to stop the foreclosure and sale from going forward. Once completed, however, the actions of the pretender lender are essentially engraved in stone.

The action for damages should of course be accompanied by a demand for jury trial. The liability portion of the trial should be relatively simple involving simple arithmetic and a logical progression of claimed ownership of the loan. The last defensive strategy of the banks is going to be based on circular logic, to wit: that there is no damage because the foreclosure sale was valid and that the sale must be considered valid because it is already done; and if it is already done the deed issued upon foreclosure sale at the alleged auction is presumptively valid. In other words “what we did was valid because we did it.”

In my opinion there is big money in these lawsuits for damages and lawyers are encouraged to do the research and analysis. My firm is taking these cases on contingency where the right elements are present. So far everyone who has done their own research and analysis has arrived at the same conclusion expressed in this article. But there is a huge trapdoor that litigators must avoid.

Just like a petition for bankruptcy creates an administrative proceeding before a bankruptcy judge which is not the same as a civil litigation proceeding which would be filed in front of the federal district judge, a litigator in a foreclosure action must be careful to narrow the issues such that the foreclosure proceedings do not include allegations and proof directed against the pretender lender for not being the creditor and not having any authority to represent a creditor.

In judicial states this would mean a motion to dismiss or motion to strike any allegation that might lead to a final judgment in which the court finds a debt owed  to the pretender lender from the homeowner.

The point must be made that the preoccupation of the judge with the payments from the borrower should mean that “payments” are at issue. If payments are at issue than the payments made and received by the pretender lender and its predecessors or successors must be given equal time in a court of law — not just payments made and received by the alleged borrower.

Strategically the litigator should point out that the foreclosure process is essentially an administrative process involving ministerial duties by the judge. It should be argued that if the judge wants to allow the foreclosure to proceed and to allow the sale at auction to proceed, that is one issue.

But if the judge wants to enter a judgment based upon a debt, and a note and mortgage which supposedly describe the debt and the repayment terms, and based upon alleged ownership of the debt —  then the party intending to foreclose must allege injury which means that they too are required to produce evidence of payment and evidence of loss. The only acceptable evidence for that would be a canceled check, wire transfer receipt or other actual document generated by a third-party showing the actual movement of money.

Thus the judge should be guided towards a judgment that he or she already wants to enter, to wit: allow the foreclosure to proceed. In the lawsuit filed by the borrower after the foreclosure sale a different judge will probably hear the case. If presented skillfully, the judge may react warmly to the opportunity of getting another case off of their docket.

Critics say Michigan foreclosure bills seek to ‘get people out of their homes quicker’
http://www.mlive.com/politics/index.ssf/2013/05/critics_say_michigan_foreclosu.html

Keeping The ‘Recovery’ Dream Alive; 3 Big Banks Halt Foreclosures In May
http://www.zerohedge.com/news/2013-05-28/keeping-recovery-dream-alive-3-big-banks-halt-foreclosures-may

Banks Snap Up Foreclosure Aid Meant for Borrowers
http://www.hispanicbusiness.com/2013/5/28/banks_snap_up_foreclosure_aid_meant.htm

Activist homeowners take foreclosure fight to the DOJ
http://www.housingwire.com/fastnews/2013/05/28/activist-homeowners-take-foreclosure-fight-doj

Regulators probing banks for faulty debt collection practices
http://www.washingtonpost.com/business/economy/regulators-probing-banks-for-faulty-debt-collection-practices/2013/05/28/9f40bca2-bbd0-11e2-89c9-3be8095fe767_story.html

 

Paragraph 22: Not Exactly the Magic Bullet

Since we had our technical difficulties with the use of free conference last time I am going to answer certain questions that were sent in and never covered in the last members teleconference. Free conference assures me that the technical problems have been solved —  but the call-in number is going to be different.

THIS IS FOR GENERAL INFORMATION ONLY AND SHOULD ONLY BE USED AFTER CONSULTING WITH AN ATTORNEY WHO IS LICENSED TO PRACTICE IN THE JURISDICTION IN WHICH YOUR PROPERTY IS LOCATED. I AM ONLY LICENSED IN FLORIDA AND EVEN IF YOU HAVE A FLORIDA CASE THIS INFORMATION SHOULD NOT BE USED AS ADVICE OR INSTRUCTION SINCE I OBVIOUSLY KNOW NOTHING ABOUT YOUR PARTICULAR CASE AND WHETHER THE FOLLOWING IS APPLICABLE TO YOU OR YOUR CASE. Call 850-765-1236 for further assistance. On the West Coast (CA, OR, WA, AZ NV, etc.) call 520-405-1688.

Question regarding “paragraph 22″: I have enclosed a link below discussing the paragraph which is numbered 22 in the example used.

The first thing I want to say is that there are no magic bullets anywhere within the complexity and chaos of the false securitization scheme devised by Wall Street. Nothing will be a substitute for a thorough understanding of the scheme and no one element or theory is going to result in a “free house” for a homeowner except in those cases where the party pretending to be the lender as so angered the judge that the judge is looking for a way to punish them. Nonetheless the article below is written by an attorney who apparently has a fair understanding of several issues involving securitization of debt and is therefore worth reading.

The second thing I want to say is that the paragraph does not always bear the number  “22″ since several different mortgage forms have been in use and evolving over the last 20 years. But the point raised by the article and by the question sent to me is entirely valid. In a case involving title to real property, and especially in a case where title is going to be forcibly taken from one party and given to another, the requirements of notice are usually going to be taken very seriously by a judge and applied very strictly. If not, and you have taken the trouble to properly prepare a good record, it is highly likely that exceed on appeal despite the fact that the odds on appeal generally favor the pretender lender by a wide margin.

The third thing I want to say is that notice is like a two edged sword.  It must come from a party that is empowered to give notice and that power should not be assumed based upon the self-serving proclamation by a pretender lender that arrogate unto itself the power to do anything with your loan. The other side is that once notice appears to be properly given, you must open your mail and react to it within the time limits prescribed by statute. Obviously if the pretender lender commences some sort of action against you before the notice period runs out you have an opportunity to reverse the procedure and force them to start all over again. On the other hand if the statute requires you to take some action once you have received notice and the notice period has run out, then it is likely that this will be held against you and in fact it may be fatal to your position.

http://floridaforeclosurefraud.com/2013/01/the-bring-a-court-action-language-does-not-substantially-comply-with-paragraph-22-says-bro.ward-county-judge-in-blistering-opinion/

Kickbacks at Fannie, Freddie Explain a Lot

13 Questions Before You Can Foreclose

foreclosure_standards_42013 — this one works for sure

If you are seeking legal representation or other services call our South Florida customer service number at 954-495-9867 and for the West coast the number remains 520-405-1688. In Northern Florida and the Panhandle call 850-765-1236. 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.

SEE ALSO: http://WWW.LIVINGLIES-STORE.COM

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 AND ANALYSIS:  The criminality of the Wall Street banks for the last 15 years has been so widespread and pervasive that it is difficult to imagine a scenario under which such behavior could have gone undetected.  The questions are unending. One particular answer to those questions stands out far above all the other possible answers, to wit: the actions of Wall Street did not go undetected.

The banks and Wall Street in general practically invented the process of due diligence, which is an examination of a proposed deal to determine whether the representations of each side are true, exaggerated or just plain false.

The government-sponsored entities of Fannie and Freddie clearly had the resources to perform extensive due diligence before they put their stamp of approval and guarantee on loans and investments that were clearly not originated or issued in accordance with government guidelines or industry standards.

The same thing may be said for the rating agencies that “got it wrong” or the insurers who presumably evaluated the risk that they were undertaking, and of course the counterparties to the hedge products including but not limited to credit default swaps.

The Wall Street Journal published a number of articles about the close relationship and economic pressure existing between the banks that were underwriting the bogus mortgage bonds and the rating agencies, insurance companies, and counterparties to credit default swaps.  these articles in the Wall Street Journal and other periodicals in mainstream media started back in 2007.

Similar articles appeared in the blogosphere  before that time warning of the coming catastrophe. Anyone with a background similar to mine on Wall Street could easily see that the underwriting of loans to consumers (especially mortgage loans) did not and could not conform to any known standards for risk assessment.

Why would a bank loan money in the knowledge (and indeed the hope) that the money would never be repaid? Why did government-sponsored entities, insurance companies, rating agencies, securities regulators, and counterparties to exotic hedge instruments turn their heads the other way, with full knowledge of the impending disaster? The answer is as old and simple as the history of commerce —  kickbacks, payoffs, bribes and promises of lucrative employment.

The Wall Street Journal told the stories where individuals working for rating agencies and insurance companies were taken on fishing trips and other junkets following which they received threats from the Wall Street banks that if the rating and insurance contracts were not to the liking of the Wall Street banks, the banks would go elsewhere.

Considering the creation of such entities as mortgage electronic registration systems (MERS)  and the financial strength of the banks, it was easy to see that if the banks didn’t get what they want from existing rating agencies and insurance companies they would create their own. Thus in addition to direct payoffs to individuals the management of old established institutions was put under pressure to play ball with Wall Street or go out of business.

The same playbook was used with appraisers who were promised higher fees if they continue to raise the stated value of the real property as they were instructed to do. In 2005 8000 appraisers warned Congress that this would happen. They were ignored. All the information that was needed for due diligence was easily accessible to the institutions that ignored red flags and eventually became part of the largest case of criminal fraud in human history.

If you look at the history of organized crime in this country you will see substantial similarities between the crime syndicates and the behavior of Wall Street. Payoffs and kickbacks to law enforcement, agencies, government officials, and legislators in the governing body of states and Congress became the ultimate protection and immunity from prosecution regardless of the severity of the crime or the damage caused to society.

While it is true that most such syndicates and eventually fail we cannot wait for time to run its course. That is why the demonstrations by occupy Wall Street and others are so important to bring pressure on those who are protecting multinational banks and the people who run them. It is not going to be easy because the amount of money is staggering. Trillions of dollars have been siphoned out of our own economy and the economy of dozens of other countries. With that kind of money you can pay off a lot of people with more money than they ever dreamed of having.

So it should come as no surprise that a “foreclosure specialist” at Fannie Mae was caught picking up $11,200 in cash in a sting operation. The problem here is that we are catching the smallest fish in the pond instead of removing those who control the action. It is interesting that the case reported below involved steering foreclosure listings to particular brokers. By focusing attention on activities far from the core of evil emanating from Wall Street many of us are distracted from looking at the real cause and the real problem not only still exists, but is being renewed as we speak in new schemes not very different from the old schemes.

The arrogance of Wall Street is either well-founded or stupid. At the present time it appears to be well founded. It remains to be seen whether we the people force our representatives, regulators and law enforcement to reject the carrot and stick from Wall Street and return to a nation of laws.

Kickbacks as ‘a natural part of business’ at Fannie Mae alleged
http://www.latimes.com/business/la-fi-fannie-mae-kickbacks-20130525,0,6280041.story

TALLAHASSEE LAW FIRM OFFERS PRO BONO SERVICE TO MILITARY PEOPLE IN ACTIVE COMBAT SERVICE

PRO BONO SERVICES ARE SUBJECT TO CERTAIN RESTRICTIONS

CONTINGENCY FEE OFFERED FOR DAMAGE SETTLEMENTS AND TRIALS

If you are seeking legal representation or other services call our South Florida customer service number at 954-495-9867 and for the West coast the number remains 520-405-1688. In Northern Florida and the Panhandle call 850-765-1236. 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.

SEE ALSO: http://WWW.LIVINGLIES-STORE.COM

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.

Tallahassee, Florida. Memorial Day. GARFIELD, GWALTNEY, KELLEY AND WHITE has announced that any person who was or is in active military service — uniform or civilian — who has been the victim of wrongful foreclosure will be represented without payment or fees or costs. Federal Law prohibits such action until the person is out of active combat service. Thus all such foreclosure actions are wrongful regardless of the circumstances. Yet the Banks continue to violate this law with impunity, except for some minor settlements on those few foreclosures where they were caught red-handed.

This is my law firm, along with three very able partners with whom I am proud to join as partners — William Gwaltney, Danielle Kelley and Ian White — all veterans of the foreclosure wars and all licensed in Florida and admitted to the Federal Northern District and Central District. I am admitted to the Southern District and Bankruptcy Bar in the Southern District.

Over a million people as uniformed service and civilian contractors assigned to combat zones fall into the category of people against whom no action should be taken. While they risk life and limb and their sanity for this country the law prohibiting legal actions against them and their families is the obvious right thing to do, it is the law of the land, and the violation of it should be enforced aggressively. Most people in service are unaware they have this protection and when they receive a notice of foreclosure they think there is nothing they can do about it.

Anecdotal evidence across the country suggests that a majority of judges are unaware of this protection for the military and have summarily disregarded the law even when it is brought to their attention.

It is our firm’s position that it is the duty of every member of the Bar to offer this service which is easy to do and requires very little time. We would a happy to assist other attorneys, after they done the basic research, in enforcing this law and preventing the foreclosure of homes while some man or woman is ducking bullets and mortars and IED’s abroad.

The offer extends to all those who were or are in combat zones against whom foreclosure proceedings were commenced. It covers only stopping the foreclosure and does not cover any other defenses dozens of which have been detailed on this blog. The probability is that the debt has long since been paid off by co-obligors you knew nothing about — information that was illegally withheld from you at he loan closing.

The firm reserves the right to review all potential cases to determine whether the case qualifies for this offer — but all cases that DO qualify will be accepted. Veterans and active duty soldiers and civilians in and out of combat zones have many remedies that are unknown to them. We are not experts in all aspects of military law or civilian laws that protect active combat personnel. But we know about this one and we are going to do something about it.

OUR FIRM MISSION IS JUSTICE: To stop foreclosures and get compensation that is truly adequate for those who were tricked into fake mortgages or tricked into fake foreclosures.

OUR FIRM STRATEGY IS TO REVEAL THE TRUTH: To provide the highest level of legal services to the most people who have been defrauded, tricked and fooled into thinking they had attending a bona fide loan closing and who have been defrauded, tracked and fooled into thinking they deserve to have their home foreclosed. Most people think the loan closing was bona fide because the money showed up. They are most probably wrong. Most people think that they are in default because they know they stopped paying the servicer claiming rights to collect on their account. They too are most probably wrong.

SPREAD THE WORD

SEE ALSO

OCC: 13 Questions to Answer Before Foreclosure and Eviction

13 Questions Before You Can Foreclose

foreclosure_standards_42013 — this one works for sure