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COMMENT: I contacted one attorney on your list and had a consult with another firm which is not part of your list but has been referenced quite a few times in the blogs. I have a problem with both and find them a bit predatory (sorry guys and gals) and quite frankly, am reticent to contact any others.
One charges $350 a month and the goal is to get the mortgage nullified due to discovery of fraud. If they succeed in this, they get a 40% interest in the property (new appraised value) in the form of a mortgage. Ok, that’s win-win I guess. They then go for legal fees and get a share of any fees recovered over and above their actual legal fees if successful in a counter suit against the lender.
If they instead get a workout/modification, they then get a 40% interest in YOUR savings in the form of a new mortgage with them. So now the homeowner has a modified mortgage with lender and a second mortgage with attorney, basically putting homeowner upside down, again. (Editor’s note: not necessarily — and remember whether you accept the settlement is strictly your decision and not the attorney’s decision).
Second attorney was similar but upfront fee for audit/retainer. If no fraud found, then only small portion of retainer is reatined to cover the audit. If they go forward with trying to defend/get a work out, etc./they charge by the hour AND get 33% of any savings. I assume same as attorney #1, in the form of a mortgage.
You all really see this as ethical?

ANSWER: YES AND NO. YES IT IS PERFECTLY APPROPRIATE FOR AN ATTORNEY TO GET PAID A FAIR FEE FOR HIS PROFESSIONAL SERVICES. YOU HAVE A CHOICE OF PAYING HOURLY, WHICH NORMALLY RANGES BETWEEN $250-$400 PER HOUR. That is what people pay when they see a lawyer. In some cases, like personal injury (auto accidents etc.), lawyers have worked out a method of allowing clients to have access to their services even if they don’t have money. The lawyer takes what is called a contingency fee. That fee, which is fairly standard throughout most of the states is 1/3 of the recovery of the value awarded or settled to the client if the matter does not go to court, 40% if the matter goes into litigation, and 45% if the matter goes to appeal. Sometimes the attorney will even advance the filing fees, discovery costs and expert witness fees in a case on behalf of the client. For these foreclosure cases, or mortgage disputes, the hours spent can be very intensive and time is money. Prospective clients often forget that it is their case and their life and that the lawyer has nothing to do with it unless he chooses to accept the retainer arrangement. On the other hand, it is improper under most rules to take an interest in the property that is the subject of the dispute, particularly a home residence. But the fees still apply. So if the only way you can afford to pay the lawyer is to get a mortgage or give the lawyer a secured interest in your home AFTER the case is settled, then in most cases the fee would be considered fair and the arrangement within the bounds of legal ethics. If the lawyer is taking a sum of money that goes far beyond the costs of the case and is basically charging you hourly PLUS the full contingency fee, then you are right — that is predatory. The situations you described do not seem predatory although your description sounds that way. You have a choice of paying an hourly fee plus the costs of the case and the lawyer will be perfectly happy to take your case. You don’t want to or can’t pay that fee so you want the attorney to take a risk as to whether he/she will get paid at all. You object to the amount of the contingency fee because you feel you have already been the victim of predatory behavior. You would like them to work for you for less than they charge other clients and they are not willing to do that. Why should they?

QUESTION: Need urgent answer…I have a HELOC loan in default. The Lender (Irwin) was awarded summary judgment a year ago (before I realized) what was going on) and is now hauling me into court to collect. I’m planning on filing a 60(b)(5) motion pro se to contest their fraudulent claim to the court that they had legal standing since I was pretty sure the loan was sold. However in reseaching their SEC filings, I noticed that starting in 2002, the no longer “sold” loans from an accounting standpoint, but instead now pledged them as collateral to borrow against them. Does that change anything regarding my contention that they are no longer the injured party? It seems to me that the person(s) to whom the collateral was pledged would still have a claim against me even if I paid them, right? Additionally, the lender has probably already been paid through a credit default swap, right?

ANSWER: IT IS DIFFICULT FOR ME TO GIVE YOU A DEFINITIVE ANSWER. There are many such arrangements where it is only paper — the “loan” is a disguised table funded loan and the “lender” to the “lender” is not expecting or pursuing any payback. The issue of assignment remains however. Just because there were financial arrangements doesn’t mean that the note wasn’t assigned or that they had the note at the time of the foreclosure or if they did have the note that they had any interest in it.

If the loan was securitized, then the “arrangement” is mere obfuscation of the fact that the holder in due course is somewhere upline and could assert a claim against you in the future. I have no way of knowing how this will play out. I would, after consultation with appropriate counsel, pursue the claim as though the facts are as we suppose them to be and produce the SEC filings to show that the note was assigned at par value all the way up the securitization chain. And now, due to this fraud on the court, you are stuck in the position of being foreclosed with an outstanding claim from an undisclosed third party.

And you are correct that the holder may in fact have been paid in full from an insurance product from AIG, AMBAC or a credit default swap. Further, your loan may have been paid a s a result of overcollateralization or cross collateralization with other loans. And the payments you made might have been applied to other loans in the same way.

You are entitled to a full and complete accounting of all funds from before your loan application through the present day, received or paid, who from and why, and a complete chain of title over the note, the mortgage and the assignments. You will probably find, as per the Texas lawsuit on the blog that the distribution reports do not coincident with the actual receipts. Payments might well have been made out of a reserve created from the sale of the mortgage backed security.

You must emphasize that they are hiding most of the transaction from the court. The entire transaction consisted of some investor putting up the money and a lot of fees, profits, rebates and kickbacks being paid downstream to get the people motivated enough to lie and cheat their way into getting your signature on the loan documents. Besides being a violation of TILA which is not subject to the claim of res judicata (already been litigated) the documents clearly show that co-obligors were added to the stream of revenue from your “loan” and that they might have paid money on your loan or been bailed out by the Federal government on the loan.So your argument that they are double or triple dipping is still a viable argument.

QUESTION: I’ve always understood (hopefully incorrectly) that TILA rescission ONLY worked for NON-PURCHASE money mortgages (e.g. equity, maybe refinances, etc.). If someone can authoritatively guide me on this TILA matter, I’d greatly appreciate guidance or mentoring.

ANSWER: Your question is more complicated than it sounds. The remedies under TILA are explicitly unavailable for purchase money first mortgages, as I read it. But the duties of disclosure are there for all loans. And the participants in the securitization scheme did not make material disclosures about who the real lender was, what fees were being paid and how your signature was being used to create what appeared to be a purchase money first mortgage but in fact was the initial negotiable instrument that was broken up into shares and sold in investors. When combined with a HELOC it is generally considered to be a consumer transaction falling outside the purchase money first mortgage exemption. Refi’s and other financial products also lead to conversion from the category of purchase money first mortgage. So when you are expressing the duties of disclosure in the transaction under Regulation Z you go straight to TILA. When you are seeking remedies you might still claim TILA remedies because the transaction was disguised.

QUESTION: I am doing a loan modification and my trustee sale was postponed till oct. 17, 2208 agreed by countrywide, BUT we received a notice to vacate, upon checking with countrywide they confirmed that it was on a trustee sale sept. 18, any suggestion what to do? The loan modification company said they received an email from countrywide for the Oct. 17, 2008
> trustee sale extension. Any suggestion on what step needed to be done?
> Thanks

ANSWER: FIRST THING IS GO TO A JUDGE AND SHOW HIM THE  CONFLICT WITH A PLEADING THAT SAYS THE SALE SHOULD BE POSTPONED.

Second thing either by formal interrogatories you want to know if they have the authority to do a loan modification because if they don’t own the note, they can’t modify it. And if they are not the assigned ON RECORD of the mortgage they can’t modify that either.

QUESTION:

I have an interesting problem with a foreclosure action that was just brought to my attention. The borrower went into default in August of 2007. The “lender” on the note and mortgage was Countrywide Home Loans, Inc. The mortgage had the usual MERS language. Countrywide was kept on as servicer. The borrower went into default in August 2007. On January, 30, 2008, “Carrie A Hoover-1st vice president” signed an assignment on behalf of MERS, assigning the mortgage and note to Bof NY trustee for CWALT 2005-41. (Carrie Hoover is actually a VP for Countrywide) This was prepared by the Attorney in Miami and executed in Texas.

Bof NY filed a foreclosure action a few weeks later. It claimed they owned and held the note and there was no claim for lost note. The borrower hired local counsel who filed an answer and affirmative defenses. He admitted that the Borrower executed the note and not much else.

The affirmative defenses are notice related as well as one alleging the note is “unintelligible, unconscionable and unenforceable”

My usual first line of attack revolves around standing. (they are not the holder or have not established their right to pursue the action) This is done by way of a Motion to dismiss.

My question is because this was not raised initially is it now waived? (I have been retained by the client)

Also what types of claims have you seen used against the alleged “assignment” when it would appear that the signatory does not have apparent authority?

Your wisdom and guidance is always appreciated

Answer:
1. The borrower went into default in August of 2007: You don’t actually know that. I’m sure he stopped paying, but in the scheme of securitization, the payment might have been made by any number of co-obligors that attached to the transaction on the way up the securitization chain. For example, AIG, AMBAC are insurers, credit default swaps might have protected the payment as well, and there was a reserve in the SPV to make the payments even if the borrower didn’t. In addition, depending upon which tranche in the SPV the loan was “assigned” to, the lower tranches might have made the necessary payments. Also the notice of default might have come from a party without any authority to do so and without any knowledge as to whether the holder in due course had been paid despite the lack of payment from the “borrower.” Lastly, how can there be a default on a note that was paid in full? The mortgage aggregator paid 102.5% of the note principal to the “lender” under a Pooling and service agreement” or under the Assignment and Assumption Agreement” that usually predates the date of the loan closing and certainly predates the date of “default.Find out who the mortgage aggregator was.
2. The “lender” on the note and mortgage was Countrywide Home Loans, Inc.: You are quite right to put that in quotes. If you look at http://www.sec.gov and examine the 10k and 8k reports you will find that pools of assets (notes either signed by borrowers were set up with trustees (who may be the successors to any other Trustee or “lender.”). Countrywide was paid off by the mortgage aggregator (which could actually be FNMA or Freddie Mac).
3. The mortgage had the usual MERS language: Actually the language varies. Some states allow MERS to act on behalf of mortgagee or even successors. Florida seems to be split between decisions in the 4th DCA and 2 DCA. I would attack that in all cases because the Fla S. Ct will in my opinion go with NOT letting MERS do what it is set up for. The main focus of the attack is that the parties are trying to make it more difficult for the Borrower to rescind (they didn’t disclose the REAL lender), more difficult to assert valid affirmative defenses and counterclaims and attempts to put the burden on the borrower to bring in the necessary and indispensable parties, when it is MERS or CW that has the access to that information and not the borrower. In a Judicial state like Florida that would be a particularly powerful argument (I think).
4. On January, 30, 2008, “Carrie A Hoover-1st vice president” signed an assignment on behalf of MERS, assigning the mortgage and note to Bof NY trustee for CWALT 2005-41. (Carrie Hoover is actually a VP for Countrywide) This was prepared by the Attorney in Miami and executed in Texas. This sounds like one of Shack’s cases in Kings County, New York. See http://www.livinglies.wordpress.com. Motion to Strike based on fraud on the Court.
5. Bof NY filed a foreclosure action a few weeks later. This is a lot like a case in GA. BONY settled with wiping out the mortgage and note and giving her a reverse mortgage. Not a great settlement but she was happy.
6. It claimed they owned and held the note and there was no claim for lost note. Motion to dismiss. How did they get the note? Request to Produce the Note. Holding the note creates a presummption that they are holder in due course, but they are probably not the a holder in due course, so you need to rebut the preumption. Demand assignments and information concerning who assigned and what their authority was. Look at note carefully. It might have been signed with “squiggle” — i.e., it could be a forgery even though there is an actual note signed by borrower. They did that for “convenience.”
7. The borrower hired local counsel who filed an answer and affirmative defenses. He admitted that the Borrower executed the note and not much else. Motion to amend affirmative defenses based upon new facts elicited from filings by parties with SEC. Too late to file Motion to DIsmiss and too much work to fight over it. Just file the same grounds under the Affirmative Defenses and then file affidavit from borrower along with copies of SEC documentation as attachments for Motion for Partial Summary Judgment.
8. The affirmative defenses are notice related as well as one alleging the note is “unintelligible, unconscionable and unenforceable” – Keep the notice arguments and expand upon them. Borrower was not given notice at closing as to who the real lender was and was therefor deprived of his right to rescission because the “lender” was merely a conduit and protective layer for the real lender who was not registered or chartered to do business in the State of Florida as lender or bank. You STILL want to exercise the right of rescission (the three day rescission) as soon as they will tell you who the real lender was. By covering up the real nature of the transaction, they deprived the borrower of sufficient knowledge about the transaction to properly consider whether to go through it and now he wants to rescind — which should be stated in the affirmative defenses. Your position is that the time for three day rescission never began to run because of all the non-dislcosures of all the parties that were not revealed and all the fees that were paid to all the parties that were not revealed.  Stay away from unconscionability as this is like the insanity defense. It exiss but rarely granted. If you want to keep it then go with the inflated appraisal, and the the payment of the lender and that the equities here do not allow the “lender” to get paid and get the house too. BONY will say they didn’t get paid and they probably didn’t. But they didn’t loan the money either so they are not a holder in due course. The real holder in due course are the investors who now hold the certificates of mortgage backed securities to whom the mortgage and note were pledged in tinny shares along with shares in hundrds of other mortgages and notes.
9. My question is because this was not raised initially is it now waived? (I have been retained by the client) – Being new counsel the court will usually allow some lee-way to create your own pleadings. Waiver of affirmative defenses can only be plead after judgment. Any time up to that you can amend your pleadings liberally in Florida and most states. You can even amend your pleadings at trial to conform to the evidence. If there is any prejudice the trial is continued so that the other side can conduct discovery. Of couse, no guarantees here on this or anything else. Judge could say no to everything.
10. Also what types of claims have you seen used against the alleged “assignment” when it would appear that the signatory does not have apparent authority? —This is basic law. Competency of witness: Oath, Perception, Memory and Communication. If the party signing a document has no knowledge about the “facts” asserted then they are incompetent to sign the affidavit and incompetent to testify.


QUESTION: If I do a rescission letter to the lender who refinanced my house and gave me 100K, will I have to give them back the 100K even though they must have already been paid by the assignee?

Also, seems like since they no longer own the note, how can I force them to reconvey the Deed of Trust I signed?

Should I wait to send a rescission letter until after I complete my audit or just go ahead and do it now before my audit?

ANSWER: Perfect questions.

1. Rescission is an orderly progression or a process and not a single event. So when you rescind, you are converting the secured debt into an unsecured debt.
2. If the rescission is effective either by court order or the “lender” accepts it (which never happens) THEN the time comes to negotiate tender of the money.
3. If the loan was sold to someone else, then there are two potential issues: (1) was the rescission sent to the correct party? and (2) you obviously are not going to pay someone who has already been paid so they need to disclose to you who the real owner is — something they cannot do which we have already discussed.
4. Timing of sending rescission letter. I would do it now although there are arguments to the contrary. Basically what you want to do is assert your right to the three day rescission, on the basis that they did not disclose the real parties in interest, nor did they disclose the fees that were paid to undisclosed parties, nor did they tell you that your signature was going to be used as the basis for issuance of an unregulated security and sold all over the world.
5. Remedy: You can file a mandatory injunction to force them to reconvey the Deed of Trust or you can just file a quiet title action. I like the quiet title because it is your position that they don’t have the authority to do anything, since the documents were conveyed before, during or after closing.
6. See if you can find out if the Pooling and Service Agreeemnt and/or the Assignment and Assumption Agreement actually predate the loan closing on your deal. If So, it proves that they NEVER had any equitable or legal title to the mortgage or note.

> Subject: [Livinglies's Weblog] Comment: “FORECLOSURE DEFENSE AND OFFENSE DISCUSSED: APPRAISAL FRAUD”
> Comment:
> Actually New Century’s liquidation plan wasn’t approved until August 1, 2008. Didn’t stop them from transferring my mortgage the day they filed BK on 4/2/07 though.
>
> Wonder how that will play out in court. Actually we’ll see because I already filed my answers including lost note, bk fraud, counter-claims, etc. I just got this funny little postcard saying “If anyone wishes to prosecute this case they need to file a dispositive motion or it will be dismissed.” What does that mean? Is that good?.>

ANSWER: You need to speak with a BKR lawyer to make sure it isn’t YOUR claim that is being waived.

Comment:
> Interesting idea, although flawed.
>
> Your title insurance company will only process a claim if there has been a loss (or an imminent danger of one. i.e., an attack on the title), and only then if it is not of the insured’s doing (or could have been prevented through action by the insured.)
>
> Since foreclosure is ostensibly always the insured’s fault (except of course in the rare case of forgery and intervening liens), you would be hard pressed to find any insurance company that would see it as an insurable loss or attack on title. The insured had an obligation to perform under the note they signed (ahem, which usually includes a “successors and/or assigns” clause), and failing to follow through on that creates an uninsurable loss – securitization or no.

ANSWER: I AM flawed, just ask my wife! My point, perhaps not articulate enough, is different from what you are addressing. If at the closing there was a pooling and service agreement already in existence and known to the title agent. If at the item of the loan closing there was an assignment and assumption agreement already in place. If the investors had already purchased mortgage backed securities, that included a description of a “temporary” set of notes (See Lehman filings), that would be replaced by “real” notes and security instruments pledged as security to the holders of asset backed securities, and if the terms of the pledge within the SPV was an allocation of funds contrary to the terms of the note and mortgage, and if the title agent was aware of sufficient facts to put him on notice that (a) undisclosed third parties were involved in the transaction and (b) that undisclosed fees were being paid and (c) that this could create grounds for three-day rescission, but for the fact that the real “lender” has not been disclosed— assuming all of that, because that is actually what happened — does that not mean that there was actual knowledge by the title agent that there are dozens and perhaps hundreds of even thousands of people who have an equitable and legal interest in the security instrument encumbering the property. I agree that the title policy does not require intervention of the carrier until there is a claim. But the errors and omissions carrier for the title agent when put on notice of the claim would have an immediate interest in mitigating the potential loss. It is not that there is a hypothetical cloud on title, it is real from the moment that the transaction was consummated.

> Comment:
> OK, I have asked you to respond three times by email and have not heard back from you since, can you please explain to me why Countrywide is now listing MERS as a defendant in their lawsuits? I have noticed this since May 2008.

ANSWER: MERS is listed as a nominal defendant because of the confusion in the courts over standing. The original theory with MERS was to simplify the tracking and foreclosure process by having a central repository for the collection activities and start of the foreclosure process. In judicial foreclosure states this created problems, although there are some decisions that allow MERS to have standing if they allege that they physical have the note and they allege that they are the owner of the note. In Florida, an appellate court decided that if they made those allegations, it was sufficient to establish standing and that the lack of a beneficial interest in the note or mortgage was insufficient to attack standing.

The theory of the court, while I have not read the entire opinion, appears to be that the lack of a beneficial interest in the note or mortgage does not necessarily mean they lack some sort of appointed authority to represent the true beneficiaries (holders in due course). But it is equally true that in the proof of the case, the presumptions arising from their allegations about possessing and owning the note can all be attacked. If for example they received possession after default, or if they received an assignment from a source whose authority was dubious, then all the strategies presented on the blog would apply.

By naming MERS, they are trying undo the confusion they created when they “assigned” or indorsed the note to MERS for convenience. They seek to avoid the consequences of other court decisions that have held, almost uniformly, that in order to bring a legal action, you must have some stake in it. And if there are potential affirmative defenses, counterclaims or cross claims, those people must be present (necessary and indispensable parties). By naming MERS, who was not a party to the original loan transaction, they are admitting, in my opinion, a cloud on title to the property, the note and the mortgage.

> Date: Thu, 18 Sep 2008 17:23:54 +0000
> Subject: [Livinglies's Weblog] Comment: “IN TROUBLE RIGHT NOW? PRESS HERE”
>
>Comment:
> Thank you for the treasure trove of information available on this site.
> We are in Palm Beach County, FL and a F/C was filed on us 14 months ago. In my (pro se) somewhat lame answer I alleged Tila violations and that Plaintiff was not the real Party in interest. We have been in Discovery since, with them objecting to just about every question or request. I have found the Trust through exhausting search at SEC/Edgar with my loan
> number in it. My question is how to determine which class my loan is in.
> The loan numbers cycle from lowest to highest over and over, the number of cycles far outnumber the number of classes shown in the prospectus.
> Also should I send the 3 day letter to all involved.
> Thank you

ANSWER: Yes send the three day letter and the general claims letter to all concerned. If you figure out a way to tie your loan to a specific pool, class, tranche or SPV, let me know. I can’t and I don’t know anyone who can, particularly with the right of substitution present at all stages of Securitization.

Comment:
> I meant to ask this question in my post…
>
> Our refinance in May 06 paid off the previous mortgage. I did not receive my original note back from my previous lender. I believe a lender is liable for any assigned loan, and I have read articles on lender liability in a refinance, My question is, if a lender does not send original note back to borrower, is that contract in affect still open to rescind? even though someone has paid that amount on my behalf? But if the lender does not take the required steps in paying off this loan in a refinance why would they not be responsible? Is the lender with whom we have refinanced liable for paying a loan that has discrepancies in the paperwork, or when the bank they paid off did not follow through in their returning the original note to borrower? What documentation is exchanged between banks when a loan is paid off?
> Can this lender be responsible for this paid off amount as part of my law suit, thus leaving us not in debt for the amount that was paid by them? There are many complicated issues with this case. This has made it hard for the attorneys. I have sent a link to your site to my attorney. Thank you.
>

ANSWER: A very interesting question. Let me re-phrase it slightly. Up till now we have been concentrating in this blog on current mortgages that are in default, delinquency, the process of sale or the process of eviction. There are two major other classifications that need to be addressed:

1. Homes that are encumbered by mortgages where predatory lending, TILA violations, RESPA violations, HOEPA violations, RICO violations, fraud, usury, appraisal fraud and/or other issues are present like affordability and failure to employ reasonable underwriting standards, BUT where the the homeowner is not in default, has payments current, etc. They know they were screwed, but they have the income to pay for it. What about them?
2. Homes that were sold and where the 1sts Mortgage holder was paid off and the second mortgage holder was paid off etc.

In both cases the same issues apply as to any home that is in distress. You can and should challenge the validity of the authority of the mortgage servicer, the note and the mortgage in both cases. You should ask to see a copy of the note and in the case where it was “paid off”, you should have received the note marked “canceled” and signed by an AUTHORIZED person. It is doubtful that very many people actually received their canceled note in the closing of the sale of their home and doubtful that your current mortgage lender has physical possession or ownership of the note or its underlying obligation to pay. Therefore it is probable that the people you dealt with when you sold your house or the people you are currently dealing with lack authority or didn’t have the authority to cancel the note and deliver it.

So what I am saying is that people who are not in financial distress but either had or recently paid off one of these loans have nothing to lose by going after them. In the case of property where the mortgage(s) was paid off, I would demand a refund unless they can produce proof that they were entitled to the money. In the case where you just have a mortgage that you think they were predatory etc., demand a rescission (get an audit first), demand damages, refunds, rebates, treble damages etc.

> Date: Wed, 17 Sep 2008 18:22:43 +0000
> To: ngarfield@msn.com
> From: donotreply@wordpress.com
> Subject: [Livinglies's Weblog] Comment: “Foreclosure Offense: Quiet Title and Rescission (TILA and otherwise)”
>

QUESTION: I have received a five day notice. Do I have to leave?

ANSWER: Technically the answer would be yes, you are being ordered to leave. As a practical matter however, there are several procedural steps that the Trustee or “lender” must take before they can actually remove you from the premises. And of course in most cases, it is my belief that the Trustee or “lender” doesn’t have the authority to tell you to leave because they didn’t have the authority to foreclose your property in the first place. I have seen people delay the process for many months by entering into negotiations for cash for keys, or some other deal. Also there are filings you can make in court contesting the unlawful detainer or eviction action which might include an emergency petition to stay the proceedings because the sale of your property was improper, a sham, and constituted theft of your property (because the lender had already been paid by a third party, etc.). Motions for stay are not usually granted unless you also file an actual claim against the Trustee or lender for your TILA and other claims. You might be faced with a demand for bond, which sometimes is zero and sometimes is as much as $10,000, but upon payment of a fee you can possibly make arrangements with a fidelity bond company to put the money up. And there is always the bankruptcy route which if done properly, might challenge the Trustee or lender very effectively, particularly if you show the house as YOUR asset, based upon a disputed claim (and therefore of unknown value) and you show the “lender” has an unsecured creditor for an unliquidated amount that is in dispute.

QUESTION:

1.  A friend of mine let me see his papers he received from the Attorney’s office that’s the trustee for a bank that’s foreclosing on him.  One of the papers that sent was titled Allonge.  On the paper it says:

PAY TO THE ORDER OF

NEW CENTURY MORTGAGE COMPANY
_______________________________________
without recourse

Company Name:  ACE MORTGAGE FUNDING LLC

by:  Robert Gregory, Jr.  Vice President

Can you explain what that really means?

2.  Also, the paperwork says the original lender for this loan was Ace Funding Mortgage LLC.  The loan has now been assigned to US Bank National Association, as Trustee for Asset-Back Pass-Through Certificates, Series 2006-NCS, and their mailing address is in care of America’s Servicing Company 3476 Stateview Blvd…..

Can you give me a brief explanation what all this means.

ANSWER: ALLONGE IS A FRENCH TERM (THEY ARE FOND OF THOSE ON WALL STREET), WHICH BASICALLY IS USED BECAUSE THERE IS NO PLACE TO WRITE ON THE FACE OF THE NOTE. THE INDORSEMENT (technically the correct spelling when used in connection with negotiable instruments)

This allonge says that ACE MORTGAGE FUNDING LLC, posing as the lender (FALSELY, AND RECEIVING A FEE FOR LENDING ITS LICENSE TO A NON-LICENSED OR CHARTERED ENTITY) in your transaction, assigned its interest in your note and mortgage to NEW CENTURY MORTGAGE COMPANY, which also was not the lender. You can liken this to getting a check from someone, and then signing it over to someone else. Whether the signatory on the allonge “Robert Gregory” was really the name of anyone who works there I do not know. It often is revealed that this is not the case. In fact it is often revealed that these assignments, Allonges etc. are created for your benefit long after the date of the allonge.

The date on the allonge is either before or after you closed on your loan transaction. If it is before, then they assigned an interest they did not yet have. If it was after it was probably within days of your loan closing. This would show that ACE was a stand-in for the real source of the funding, which you might think from these documents was New Century, but that would probably not be correct.

You say “The loan has now been assigned to US Bank National Association, as Trustee for Asset-Back Pass-Through Certificates, Series 2006-NCS”. Whether it was actually assigned and if so, how, is not known by you and apparently not known at all. There is probably an assignment and assumption agreement around somewhere and a pooling and services agreement around somewhere that will identify the real purpose of these parties. But the “trustee” does not actually own the mortgage and note either since the it is the actual owners of mortgage backed securities to whom the mortgages and notes are pledged. Whether any assignment was recorded is also an open question. Usually they are not, which is illegal in most states. This creates an odd anomaly — the mortgage of record is in the name of ACE and the note is traveling at light speed toward parts unknown with each successive transfer, transmittal or assignment. The effect of this is that what was rare under the Uniform Commercial Code has become commonplace. Ordinarily the note follows the mortgage and mortgage follows the note. But for reasons too extensive to report here, the note is split off from the mortgage because the players have other plans for it, including changing its terms, and changing the allocation of payments on the note.

And then you say “and their mailing address is in care of America’s Servicing Company 3476 Stateview Blvd….” This means that US Bank is not really doing anything here except acting as conduit and that it too has no real interest in the note and mortgage because it too was not the source of funding. Generally the law follows the money. So whoever was the actual source of the funding is the one who should be repaid. This is called the holder in due course under ordinary circumstances but these are not ordinary circumstances. The note is being held by any number of people other than the source of funding who has received a certificate and prospectus stating the the entire beneficial interest on the notes and mortgages in the pool are pledged to him, but that the specific notes and mortgages could be different than the original list, probably will be different, and that substitutions will occur. In other words they are selling the certificates before they actually have loan closings based upon signatures that have not yet been executed in loan closings that have not yet occurred.

America’s Servicing Company is obviously serving as the mortgage loan servicer, which means they are appointed by someone, with or without authority to do so, to collect your mortgage payments. They were created as yet another layer for you to penetrate when you attempt to assert or claims and defenses against the people who were present at the original closing.

>darrellmcdonald@hotmail.com
>Comment:
> Open question to all. I have not yet received a notice of default but haven’t made a payment to IndyMac or to the HELOC company Wells Fargo since March. I am preparing to file lawsuits against both and a lis pendens. Should I call my fire insurance carrier now and tell them to change the beneficiary from IndyMac to me?

FOR GENERAL INFORMATION PURPOSES ONLY AND NOT TO BE ACTED UPON WITHOUT CONSULTATION WITH LOCAL COUNSEL.

ANSWER: Your insurance carrier will probably notify the “lender” that you have changed the beneficiary, which is a breach of the mortgage obligation. That will give THEM ammunition against you. You could check on that if you know the insurance agent well enough and he has the knowledge to answer the question.

  1. I would suggest that you send a notice to the Trustee similar to the one on the blog that basically says that Indymac sold off the loan, has been replaced by the Trustee of the pooled assets, and that you have recently discovered that there were several undisclosed elements of the original loan transaction, including the real party in interest that made the loan to you, and fees paid for various undisclosed “services” all in violation of the Truth in Lending Act.
  2. Since you have just learned of this, you are NOW exercising your 3-day right of rescission and you wish to rescind the transaction (“I HEREBY RESCIND”), which would also terminate the Trustee’s authority.
  3. Ask him to report to you who the real holder in due course of your note is and that based upon 10k and 8k filings from Indymac prior to its failure and takeover by the FDIC, it would appear that there are multiple investors who own shares in your mortgage and note, all of whom have a clear claim as holders in due course. Thus any direction or instruction he receives from the “lender” is not from a party with an interest in the mortgage or note and is void or meaningless.
  4. Demand that he forward a copy of the letter you send, certified, return receipt requested, to any parties undisclosed in the closing papers, and of course to forward a copy of the letter to his own errors and omissions carrier and to the carrier for the title insurance, since there was a cloud on title created AT CLOSING by the knowledge of the parties that the loan was “sold forward” or already committed to a third parties who were undisclosed real parties in interest and who collectively constitute the real lender.
  5. Hence the party to whom you would address a notice of rescission to was hidden from you and still is. Thus the 3 day rescission period continues to this day.
  6. Also state that based upon the SEC filings, and your consultation with experts in mortgage backed securities, Indymac’s successors entered into agreements wherein your loan payments could be allocated to payments due on notes from OTHER borrowers in whole or in part — as consequence of the cross guarantee agreements between tranches in the SPV and between SPV entities. You demand to know whether this has in fact occurred.
  7. Further, you are informed that in addition to cross guarantee agreements there was overcollateralization of your loan as part of the the overall scheme of your issuance of the note and insurance purchased with the proceeds of sale of the loan to you and investors in which reserve pools and guarantees of payment were created through payments to third parties, none of which was disclosed to you.
    • And lastly, and perhaps most importantly, if you think that your loan was based upon a false appraisal (i.e., the appraisal value was shown by subsequent events to be over market), that this was an undisclosed cost of the loan obtained, in addition to damages suffered by the fraud committed on you, and that neither the Good Faith Estimate nor any other effort was made to disclose that this was the case.
    • This inflated appraisal when added to the the other costs of the loan, created a usurious transaction in which the real lender was in fact a private, undisclosed, unregistered, unchartered, unregulated entity, that had failed to pay taxes and fees to the State of California, in addition to failing to report its activities within the state.
    • This real lender entered into an illegal agreement in which the nominal lender” in fact agreed to “lend its license” to the real lender and was paid a fee of approximately 2.5% as a fee to do it, in addition to points and all other costs and fees of closing the “loan”, and interest paid from inception of the “loan.”
    • Since the transaction constituted usury, you hereby declare the obligation on the note null and void and demand treble damages for the original face value of the note.

    I would suggest that the same type of letter, with some modifications, be sent to Indymac, FDIC, the mortgage broker, the title agent, the appraiser, and the real estate agents at the closing of what you thought was a loan transaction but in fact turned out to be a fraudulent scheme to trick you into issuing a note that turned out to be a negotiable security that was already the subject of a plan and agreement to sell unregistered, unregulated securities to third parties who were the true source of the loan.

    If you file suit or even if you file a petition for emergency temporary injunction I would suggest that you consider filing a lis pendens. You might be met with a demand for bond, but your argument would be that no bond is required since there is no delinquency as yet, no real party in interest present and the Trustee has no equitable or legal interest in the property. The proper party to ask for a bond would be someone who could allege they will be hurt by the filing of the lis pendens.

Question: what is in this blog and how do I use it?

Answer: Our mission is to provide information that will enable people to keep their homes and give them relief from what I believe is the biggest economic fraud in history. Over the last 25 years our economy has changed from actually making things of value and doing things of value to being financial enterprise driven by debt as the means for creation of money. The money has ended up in the wrong hands and this time, unless someone shreds the constitution, homeowners will end up getting the longer end of the stick.

Over a period of nearly one year we have researched, written and collected data, cases, statutes and decisions that will help lawyers argue their cases, homeowners understand their rights, and borrowers either get a lawyer or be able to say something in court that might stop the foreclosure and give them relief.

Question: Who is paying for all this work?

Answer: At the moment, the editor and a couple of dozen volunteers who are more tired now than the participants in a political campaign. We  have not received one penny in compensation from anyone for any entry on this web site. We do hope to get donations, and we hope to make some money selling workbooks, seminars, DVD’s, etc. to fund continued expansion of this site into the best possible source for lawyers and homeowners who are in foreclosure, in distress, or in an emergency. The information also applies to people who are able to pay their mortgage but understand that they have been tricked into signing papers to justify the sale of unregistered securities to unsuspecting investors, based upon false hyper-inflated appraisals of the property and the securities.

Question: what is Your Objective?

Answer: TO CREATE A LEGAL AND POLITICAL MOVEMENT THAT STOPS HOME FORECLOSURES AND RETURNS WEALTH TO THE PEOPLE FROM WHOM IT WAS ILLEGALLY TAKEN:

First to Stop all foreclosures on all property financed, refinanced or subject to HELOC during 2001-2008.

Second to at least force the lenders and Wall Street firms into reasonable terms that compensate homeowners of every type for the inflated appraisals arranged and paid for by the lenders, and the other predatory practices employed in order to create an outlet for the all the money Wall Street collected by selling more securities than there were mortgages to back them up.

Third we want to see homeowners get money — damages, rebates of points, closing costs, refunds of payments and undisclosed kickbacks and fees that are required to be disclosed by law.

And fourth, the nuclear option — we believe that it highly possible that there is no “holder in due course” or that the only holder in due course could be the investor who purchased certificates on asset backed securities. We believe that the assets that backed these securities were scrambled in financial blenders into a puree that cannot be traced. Where that is the case, it is highly probably, as dozens of people have already learned in their own cases, that homeowners could end up with their homes free and clear of the mortgage and note forever.

Question: If you are right, won’t that be the end of the economy?

Answer: Mortgage backed securities only account for 2-3% of all derivatives in the world. Sure financial institutions will take a hit that is well-deserved. Someone must pay for this fraud — but certainly not the victims. The lawsuits and notices of sale are all designed to leave the lender in the windfall position of having been PAID IN FULL within days of closing on your loan, PLUS being paid an undisclosed fee of approximately 2.5%, and now they are foreclosing so they will have the money AND the property. In addition they might seek “deficiency judgments” that are also fraudulent on their face. Allowing people to regain their only source of wealth — their homes — is the ultimate stimulus package. We are not seeking to destroy anything, just save the economy, save you and save your home.

Question: A lot of States are having their attorney generals file suit against the major mortgage culprits — Countrywide, OCWEN, Wells Fargo etc. Won’t that help me?

Answer: In some cases, like the San Diego lawsuit to stop Countrywide from foreclosing, you might be helped. But mostly these suits are about damages and frankly there is no damage settlement on the horizon that will take care of this problem. This problem is at least a $13 to $15 trillion problem. The settlements are in the hundreds of millions which means the benefits rolling down to homeowners are less than 1/100 of 1%. Put another way, most homeowners during this period probably suffered damages of at least $100,000. The AG actions would get you $10.00. You need to be proactive and help yourself. Depending upon government intervention is probably unwise.

cw-brown-moving-toward-limited-settlement-on-foreclosures

Question: How do I know You Can Help Me?

Answer: First of all there are no guarantees in life and this is no exception. EVERYTHING ON THIS SITE IS COMPLETELY VERIFIABLE BY YOU, YOUR ATTORNEY OR ANYONE ELSE.

We can give you information and you can hire an attorney.

You can and should get a mortgage audit which will help any attorney represent you, and you can use the information you get here to take to an attorney who can help you file pleadings in your own name, known in the legal field as Pro se.

Many Pro se litigants have been able to get their foreclosures dismissed — hundreds of them.

Most attorneys are just learning about the rights of homeowners and the fact that there is “money in them thar hills.” Most of them are not yet up to speed and advising clients to give up the keys when there are valuable meritorious defenses and offensive strategies that are already working all over the country. we prefer you get a lawyer, but if you can’t get one who is on your side and who will demand the missing note, etc., then you might have to help yourself.

kings-county-case-lenders-affidavit-must-be-on-personal-knowledge

QUESTION:

> Date: Fri, 15 Aug 2008 14:54:40 +0000
> New comment on your post #838 “Foreclosure Defense: Wachovia Knows About Fraud”
> E-mail : mdepauw9849@wideopenwest.com

> Could you please address the single transaction approach in regards to the mortgage process. If in your mortgage it states that they may or may not sell your mortgage does that release them from any misdeeds, also do you need an attorney versed in tax and securities law for this. Very important to me is how to stop eviction after a sheriffs sale ,I requested the original note before the sheriffs sale and was given the recorded copy from the county and a payment schedule from the lender,is this the same. What if any thing can be done to have this taken away from the courts.Attorneys have just said that although I was duped legally when I signed the mortgage I did sign it .I have not been able to secure a job so bankruptcy is not an option. In Michigan no one including the AG and the governor seem to be involved. Homeowners are just walking away because they cannot do anything,200 homes were at the sheriffs sale in may and there’s an auction in sept. for another 850. Anything?!

ANSWER:

This is WAR — The Homeowner’s War. If you do nothing, the worst will happen, If you act proactively then you have a chance of saving your home, collecting damages, getting your attorney paid, and even clearing your title of the mortgage and note.

First of all, if there is a sale, it is a good idea apparently from what has been reported to me by others, to go tot he sale and announce that this property is subject to litigation, that title is not clear because of the securitization of the loan, and that anyone who buys this property is probably going to be named in a lawsuit.

Secondly, the mortgage papers (somewhere) probably reveal that they can assign, transfer or sell your loan to a third party. This is not the point. Those provisions were always there dating back decades. The difference here is that they sold or transferred the mortgage and didn’t tell you who the new owner was. If they did give you a notice that the mortgage was assigned or that the mortgage service rights had been assigned according to the pooling and service agreement, they neglected to tell you that whoever it was that “bought” your mortgage re-sold it to someone else who in turn did the same thing and that eventually through pooling and securitization the real owners of your mortgage are thousands of investors. This leaves you in the position of not knowing if your payments are going to those investors who are the real owners of your loan. And it leaves your mortgage servicer with an obligation to answer the question. And it leaves you title clouded by the foreclosure, the sale and even a sale to an innocent third party after foreclosure.

Thirdly, I would get some press and put in an ad for everyone who wants to join you at the sheriff’s sale to tell everyone they are contesting the sales, and the entire foreclosure process. If you can group together some people, you can afford to hire a lawyer whom we can ghost write for and guide through the process even if he/she has not been trained in one of your seminars. It sounds like the procedure would be similar to one used in Ohio where the suit was field in federal Court, and then an emergency petition was field to stay the eviction/sale in state court based upon the pendency of the Federal Court action. It worked. See blog for forms.

QUESTION:

New comment on your post #701 ‘QUESTION FOR READERS: HOW MANY OF YOU WOULD LIKE TO ATTEND A SEMINAR ON 9/3/08 IN SANTA MONICA FOR LAYMAN ONLY’
E-mail : isellthem@gmail.com

> Neil thank you so much for putting this information out to the public for free. It has been so hard trying to find foreclosure defense strategies online in one place.
>
> I have been helping a friend take actions against his lender and servicer in Michigan pro se but this has become too difficult for him to understand. We settled on an attorney and are looking to use rescission for TIL violations as a negotiating point for a loan workout. I’m not satisfied with that and want the lender and servicer to prove standing.
>
> Every attorney we spoke with has told us that Michigan is the most difficult state to contest foreclosure and that the holder in due course defense won’t work here and has been tried unsuccessfully. Apparently servicing companies are granted the rights of holder in due course as long as the assignment was properly recorded, no original note is necessary. There are also some rules of evidence that allow for anyone to complete the lender’s affidavit without personal knowledge if it is in an action that occurs as part of everyday business.
>
> The mortgage was only assigned once, from the original broker to the servicer. How can I make this strategy work when every attorney I speak with says it won’t in Michigan?
>
> Also, I came across a 17 page RESPA request for documents that could be requested in discovery. It is very thorough and I’d be happy to forward it to you or anyone who needs it.
>
> You can see all comments on this post here:
> http://livinglies.wordpress.com/2008/08/09/question-for-readers-how-many-of-you-would-like-to-attend-a-seminar-on-9308-in-santa-monica-for-layman-only/#comments
ANSWER: >
We had the same problem in Ohio. The way we got around it was by (1) filing the action in Federal Court (2) filing emergency stay in State court based on the pendency of the Federal action. See Ohio Forms on blog.  The stay was granted and “holder in due course” while affected by State Law won’t help them on TILA and common law fraud. There is case law to support that. See the Rookman decision on hte blog. It is also one thing to say they can collect and another to say they can enforce. More case law and decisions on blog about this. For one thing, if you have counterclaims, what do you do? AND you Do have counterclaims. My suggestion is find a MIchigan Lawyer who understands what I am talking about and run it past him. I think you have a winner here.

> Date: Tue, 12 Aug 2008 13:41:45 +0000
> To: ngarfield@msn.com
> Subject: [Livinglies's Weblog] Comment: ‘QUESTION FOR READERS: HOW MANY OF YOU WOULD LIKE TO ATTEND A SEMINAR ON 9/3/08 IN SANTA MONICA FOR LAYMAN ONLY’
Question:

I requested assistance at this website for an attorney than can take my foreclosure case in Fort Lauderdale on contingency.  A Lawyer responded, but after a wasting a couple of days with her, she informed me that she needed a $3,000 retainer.  I talked to another attorney in Fort Lauderdale and mentioned this blog and he responded this seems like another internet scam.  He said it’s impossible for any judge to give you a property free and clear.   If you guys are so sure you can win those cases, then why do you need a retainer anyway?  After all, if you do your job right, you are going to get paid by the lender.  I guess, if you collect $3,000 from a bunch of people, you are going to make a lot of money even if you lose every case.  It definitely sounds like a scam.

Answer:

You’re upset and you are not thinking clearly. If we were soliciting you, it would be much different. This is YOUR case and YOUR house. If you want the help of a professional you need to pay them, pure and simple. You act as though you deserve a contingency fee because you were screwed by the mortgage company. No lawyer you contact did this to you. THEY have no axe to grind except to do their job and get paid for it. As for anyone who thinks this is a scam, they are entitled to their opinion. More than 100 people nationwide have already been reported to have received their title free and clear. It’s fact, not a theory. And you can Google it yourself. What is impossible is for you get services for free unless you qualify from some agency. If you go to a private attorney, you will be charged. Lawyers need money to pay their staff and their other expenses while they litigate. Clients create that revenue. That is why a retainer is so important.

38 Responses

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  2. Hello,
    Do you have a list of attorney’s you have trained who work in Colorado.
    I have a case in Colorado Springs I need an attorney.
    It’s a GMAC servicer, and MERS on original Deed with a local Mortgage company.
    We have a hearing on the 20th of Dec. so I need to move quick and hopefully we can get an extension since we have been trying to get this done pro se.
    Thanks for your help and information it’s been a big help.
    Tom

  3. Neil,

    Do you have any comment on 60 Minutes show of last Sunday night?

    Here is an email that I received:

    60 Minutes Report of Sunday, April 3, 2011 is a report designed to help the Banksters limit their Liability and misdirect the public away from the core issues.

    Watch the following 60 Minutes report:

    http://www.cbsnews.com/video/watch/?id=7361572n&tag=contentMain;contentBody

    http://www.cbsnews.com/8301-504803_162-20049744-10391709.html

    The banks would like everyone to believe that their third party contractors are the cause of the problem.

    The real problem is that the banks are just pretender lenders. That they do not have an investment or a dime in the mortgage. They are just servicers.

    Go to http://livinglies.wordpress.com/ and learn about the securitization fraud.

    The Banks and financial institutions such as Goldman Sachs have committed fraud in respect to the mortgage back securities. There have been contentions that as part of the securitization process, the deed of trust and the note were seperated, making the mortgage no longer colateralized to the real estate. Additional contentions have been made that in some cases the documents actually destroyed to avoid violating IRS and security rules and regulations.

    Additionally, ask yourself why CBS Scott Pelley avoided any mention of the Financial Crisis Inquiry Report ? http://www.fcic.gov/ Answer: Scott Pelley is a lacky and shill for the financial elite that control the press in this country and the Obama Regime that is trying to coverup the report.. (Or could Pelley just be plain stupid?)

    This report is sometimes called the Angelides Report after the head of the Financial Crisis Commission. Checkout the following links:
    http://www.larouchepac.com/node/17572
    http://www.larouchepac.com/node/17396
    http://www.larouchepac.com/node/17336
    http://www.larouchepac.com/node/17324
    http://www.larouchepac.com/node/17397

    The issue is always “Follow the Money”! The Bailout could have been used to payoff every single home loan, instead of enriching bankers that should have been bankrupted.

    What CBS is doing with this 60 Minute Report is patting everyone on the back, misdirecting them and attempting to propose a paltry $80,000,000,000 settlement to forgive the financial institutionds of their fraud which amounts to multi trillions of dollars.

    An $80,000,000,000 for the banks would just be a minor slap on the wrist. I would be like giving someone probation for committing murder.

    The only solution which 60 minutes and the Traitors in Washington, DC want everyone to avoid is the re-implimentation of the Glass-Steagall Act.

    http://www.larouchepac.com/glass-steagall

    The Science Behind Glass Steagall

    http://www.larouchepac.com/print/17609

    http://www.larouchepac.com/node/17609

    The only hope that this nation has is in the return to our Nation’s Constitutionally based credit monetary system along with the nationalization or otherwise distruction of the Privately Owned Federal Reserve Bank System.

    Comment:
    I would suggest that you contact Stu Rosenblatt at 703-999-5846 or 800-929-7566 to determine what his organization is doing in the fight to get the Glass-Steagall Act reimplimented

    What did the banks do with all of the bailout money?

  4. MerryChristmas to everyone and I want to take the time to thank everyone for the hard work and dedication to the war against the banks and all the
    Hard work from everyone involved.Keeep it up in 2011.

  5. i have been following this blog ( thank goodnes) for nearly three years. I started fighting for my home three years ago. HSBC/ ACE Securities /WELLS/ MORGAN…ASC/ Fannie Mae/ Global Digit II/ Disposition in Ireland/ The Caymans. Prospectus/ PSA/ SEC filings/ ad infinitum… So last night, I started looking into reinsurance: in relation to the foreclosure streams of revenue. I have just begun , but I think I am in to something very big. I was not able to find an email address for Mr Garfield. I have a prospectus that has a closing date due in a few days, for the sale of a new securities trust underwritten and managed between ACE/ Duetsche Bank/ Morgan and my personal favorites Wells Fargo. A lot about force Placed insurance as well. Please email me if you are interested links with brief descriptions for each. Sincere thanks for all your hard work.

  6. Dear Mr. Garfield,

    We made settlement appox. 3 yrs ago, settlement papers claim that settlement was made in PA, but actually was made in NJ. Is this legal according to RESPA procedures and if not can we rescind our signatures on the contract? Also would the motrgage be legal and binding.

  7. Hello, I am in default with my alleged lender (INDYMAC/ ONE WEST BANK). I have not made a payment since May of 2009. I have stopped the foreclosure sale with ch 13 BK filings(I am on my 3rd as I write this email). I checked my transaction history on their website and they have a ledger entry titled “FULL SETTLEMENT ON FORECLOSED LOAN” listed on April 23, 2010. It shows 2 separate transaction, 1 for the full outstanding balance of the mortgage and the 2nd for a smaller amount. These transaction listed under amount paid column, but are not applied to the balance. I question them about this in was given the run around. They said it was internal accounting. Shortly after this I was restricted from the website. I did print out a copy. Do you by their story? Do you think this a insurance settlement because of my default? Is this something I should bring up in BK court?

  8. I like to make an oppoitment to meet we you to discuss my file. Thank you.

  9. Question concerning Credit Default Swaps:

    At what point do credit default swaps kick in and funds transferred, exchanged or paid out?
    At what point is the insured paid off?

    How is the insurance coverage calculated? On an individual loan basis? On the loan pool average? Or ?

    At what point is the mortgage insurance paid off?

    1) At notice of default
    2) Upon Foreclosure proceedings legal judicial resolution?
    3) Upon Foreclosure Sale? Court House Steps?
    4) Upon modification?
    5) Upon completion of a short sale?
    6) Upon sale and transfer to non related third party.
    7) Explain…………….

    If there exists multiple insurance coverages how are those handled?

    What disclosures are required of the “Party in interest” to obtain a remedy for losses?

    How does all of this integrate with tradition mortgage insurance that some borrowers are compelled to carry.

    Where can these questions be answered?

    What are the various sources that can be used to obtain answers?

    What can be uncovered in a forensic audit of a loan…………………………………………………………………………………………..?

  10. the Promissory note created the funds…sort of an IOU. if the home has been foreclosed on, would it not be reasonable to request the note back.( demand the note in exchange for the house) It is still a negotiable instrument and still floating around somewhere, in fact it could still be a liability against you if it isn’t returned. In theory it is still your note. What about past settled properties or past foreclosed properties?. . Can we not demand the note back.

  11. New thought for foreclosure defense using jurisdiction. Knowing that our UNITED STATES of AMERICA government is a “foreign corporation”, all judges of all courts, are non-registered foreign agents. They in fact have NO, and I mean NO jurisdiction in any of our and I repeat OUR courts, on ANY type of case or to make any judgement.

    Neil, love this forum and I would diffinitely appreciate your feedback on my strategy.

    Thanks,
    Straight Arrow

  12. I am interested in your seminar 9/14. Is there still space? What will the price be as of now?

  13. Where on this site do we submit new questions or find how to get on the Conf calls you speak of????

    Thank you

  14. Our “first time home buying experience”…

    We were a newly married couple, moving to a new town (Santa Barbara, CA) with a 2 week old baby and my husband was starting a new job. We found a small quaint condo to rent. We liked the landlord. We moved in. It was January 2004.

    Buying property was out of our range, we had no idea how people were able to pay mortgages in this town. Eighteen months later we were contacted by the landlord saying he and his wife had decided to sell the condo and wanted to know if we had interest. He offered a “loan” of 10% if we agreed to use his title company, his lender and his mortgage broker and pay it back in full in 2 years. We met with the mortgage broker and gave him all our income information. The payments seemed way out of our reach. We continued to meet with the mortgage broker; a good in faith was given to us. I read every word of the documents from both the lender and the mortgage broker. I asked questions. We went back and forth whether this was the right decision for us to make. So many said “just get in”. Others said “that is SO much money!”. Our mortgage broker made us feel as though we should thank our stars he was working for us, he was going to bend over backwards to get this deal pushed through. My husband and I left feeling not quite right about the deal but we just kept asking questions. We justified the decision by saying it was our retirement, our college fund savings, etc. The mortgage broker would say “Condos went up 22% last year! If it only goes up 10% you will be able to refinance this loan in a few years, pay off the 10% down and own a property.” Those were a few of the points that were emphasized to convince my husband and I this was a good decision for us to make. Then it got a little weird. I had been the one doing all the question asking. In a meeting with our mortgage broker we mentioned I would be out of the country for a month. Quickly the contracts needed to be signed, while I was absent. I was not comfortable with this but our mortgage broker said I could sign a power of attorney for my husband to sign everything. I said I would want him (the mortgage broker) to go over everything with me on the phone the day of signing to make sure the details of the loans were consistent with the good and faith we received. The morning I spoke with the mortgage broker, he said everything (initial payment, index, margins) were consistent with what was in our good and faith statement. Once I returned from being out of the country I read the documents and everything was different, the initial payment, index, margin. All of them were more than what I was told was in the documentation.

    Immediately I contacted our mortgage broker. I brought this to his attention; he said it was the lenders fault. I contacted the lender and they would say it was the mortgage broker’s fault, he was the one who ultimately told me on the phone a lie of what the loan terms were. They said it is common the good and faith is different than the final loan contracts. Over several meetings, the mortgage broker kept promising to meet with the important person who would take care of it, over and over for almost two years. I would prepare detailed questions with post-its identifying the discrepancies. He would ask to borrow MY documents to copy them to understand my questions. He actually did this TWICE! The second time I asked him to copy them while I was there in the office because I somehow felt they would get lost if I left them with him AGAIN. Coming up on two years we decided to go and talk to another lender about refinancing. We were contacted by our lender about a modification. Again I pushed our mortgage broker to answer my questions about the discrepancies. He offered to personally pay the fees associated with the modification programs I was being offered by our current lender. We never modified. Finally, in a voicemail I have saved on my phone for the past 2 years, he said the lender admitted it was their error but they wouldn’t do anything about it: therefore, if I was being offered a modification by the lender to take it. That was the last I heard from the mortgage broker.

    At two years post-purchase, September 2007, we owed our landlord the full sum of the 10% down loan. (This was the loan given to us immediately after closing, which I didn’t realize was illegal either.) Since we had no equity, we decided to borrow the funds from my husband’s parents. A year later, still stuck in a very high, negatively amortizing loan that we were unable to restructure and/or refinance we felt stuck. We were spending over 66% of our income on the condo. We would have to put money on the credit card just to get by every month. The rates were over 10% on our loans and we just felt robbed! We decided to explore our options. We met with a real estate attorney to understand our obligations concerning a short sale, a deed in lieu and a foreclosure. After obtaining additional information about each scenario, we decided to stop paying our mortgage in September 2008. Ironically, 3 years after we purchased to the month! Yes the month we said goodbye to our TILA timeline!

    After two missed payments I decided to answer one of the lenders calls. They asked if we were recently unemployed, ill, or had death in the family. What circumstances had risen for us to stop paying our mortgage? I asked her if the lender could do anything about the loans. The lender resprentative said we could refinance. I asked how with over a 30% drop in loan to condo value? She said I guess you don’t have any options. I haven’t answered the numerous lenders calls since. We received a vague NOI in December, a person dropped off a torn of piece of paper in January which had some housing resource numbers on it, we received another NOI in April specifying dates actions would take place. This month is our 12th missed payment. No NOD yet. Original lender was World Savings and now it is Wachovia.

    Side note, in March 2009 I was contacted by a consulting firm, NIA, asking questions about the real estate transaction. They represented our second mortgage’s (15%) insurance company. Our second mortgage had reported us as a loss. It was revealed to me that our mortgage broker greatly falsified our income, falsified our bank statements and that it was illegal to record the loan from our landlord after closing. GULP. I now felt even more robbed.

    My husband and I are quite comfortable walking away from this entire thing with bad credit and still owing the debt to his parents. We have learned a tremendous amount. Our goal at this point is to attempt to regain as much of the 10% “down” money as possible. We have been saving our “mortgage $” monthly and paying of the debt we had accrued just to pay the mortgage. We intend to stay in the home until the very last moment, negotiating “cash for keys”.

    My question is this; do we have a claim opportunity on which relief can be sought?

  15. Hi,
    I heard about the foreclosesure defense group and missed the phone number: I know it started with 1 877- Could anyone with the information please e-mail me if you may have the time.

    Thank you!

  16. Filed Chapter 7 as directed by attorney. Creditors meeting set for 06/25/09 in Fresno, CA. Another attorney was going to find an attorney in our area to help, to date have no one. We are aware that the “new buyer “of our home will ontain relief from stay to continue the unlawful detainer. I have asked the BK attorney to answer one question for me , since it looks like no attorney will help us keep our home. We just want to know,how much time do we have left before we are remove from our home?. Can anyone answer this for us?
    Also, by the grace of God, we do have the funds to pay for our defense, if only we had an attorney.

  17. Hi Neil and Brad,

    I have two interesting questions about Limited Power of Attorney. The first question deals with the authority to use one. If a Limited Power of Attorney specifically reads “A hereby appoints B as it’s true attorney in fact to act in the name, place, and stead of Prior Servicer for the purposes set forth below….” does that mean they only have the authority to act if and when the servicing is transferred by “A” the “prior servicer”?

    Second question deals with legal standing of the Limited Power of Attorney. With a personal limited power of attorney if the grantor becomes incompacitated, unable to make decisions, or dies, the limited power of attorney is void. SO if a business files for bankruptcy, is insolvent, incompacitated, and is liquidated, does the limited power of attorney void like a personal one?

    Thanks so much for all you guys do. I look forward to the answers to these interesting questions.

  18. Hi, I read on the blog months ago about a bond that the court requires. I believe that there is something about you are in the house and taking care of it and will not destroy it, so no bond is needed. Is this correct? Please answer as I have to do a declaration to the court regarding this lender and trying to get the TRO from temporary to a preliminary injunction to permanent. I have the temp already and go to court to extend it. Thanks. What should I say about the bond?

  19. To Neil,

    A foreclosure summons was filed against me and my property in September 07. It became a final foreclosure judgement early 2008. I never contested the summons because I never knoew this site excisted until recently. I still live in my property and have not been foreclosed because I filed two chapter 13 back to back that were later dismissed. Property was puirchased on July of 2006. My mortgage servicer forced me to either come up with 23 grand in one month to workout a loan modification or put my property on the market by way of listing forbearance or be foreclosed. So I had no other choice but to work out a forebearance lisitng agreement with my lender, if my property is not sold by way of short sale within six months they will foreclose on me. Do I have a right to file a motion to dismiss the foreclosure judgement and move forward with tila and respa fraud this late in the game? Have you ever heard of a judge reversing the judgement because of tile ot respa fraud so late in the game? I have spoken to a lawyer in my home state of NJ and he believes it’s a pipe dream and the judge will deny the motion. The lawyer told me I waited too long to respond and it’s too late, it has been over a year since the foreclosure judgement was granted to the servicer of my loan. Any assistance would be highly appreciated. thank you

  20. Doug Johnson and myself spoke with you on Friday 1/2/09 I appreciated the time you gave us. I want to partner with an attorney and help him or her find people who are in need of foreclosure prevention or loan modification or litigation because of errors made along the way by the powers that be. Can you call me or email me so we can discuss this further. 631 686 5340
    Thanks for all your help

  21. I’m looking for help in kentucky but haven’t found any on this site yet.
    The problem say lender A was the original lender they sold to B now B is tring to foreclose which according to their attorney was ordered by the servicer of the loan.
    There no paper work of assignment to lender B it just state’s that they own it,the note they included is still in lender A’s name which don’t seem right.After checking lender A said theirs should state released because it was sold.
    Is this a violation of the Fair Debt Colection Act and other statues,if so what kind of attorney do i need.
    The attorney that filed the response said they knew very little about foreclosure law,of which i noticed as i had to tell them i didn’t think the foreclosure was done in a proper manner,then they talked to someone else came back and said that i was right.I need help
    Thanks
    Eddie

  22. our company is looking for a good attorney and one that is willing to work with us

  23. I have a couple of question
    as a loss mitigation company is there any way that we can work with you because we coming to a stand still to the point the lender is not working with us.

    the next question i understand the 3 day right of rescission how about the 1 day right of rescission on a purchase

  24. Does any of this material apply ( of course out side of federal statute ) to Nevada ?

    I see only FL & CA cases.

    I am flooded w issues on this matter in Nevada but see nothing indicating any applications in this State.

    Please advise if we can utilize Usary laws of Nevada, TILA & other regulations as a methodology to employ your strategies in the State of Nevada.

    Thanks. See you on the call on Monday.

    Refferal of Bernard Hickson, N.C.

  25. I need your phone #

  26. can a person quiet title on a residence they filed bankruptcy on? chapt 7

  27. I have a question. My loan was refied in 2005 with Impac lending DBA Impac Funding, c/o CW. In 2006 my husband died and I lost my job. I tried to work something out with CW. I went from tring to sell the house, short sale and then loan Mod. I had 2 short sale offers but CW turned them down. They sent me from one person to another then just stopped calling. Now they are calling and leaving auto voice mesg. MERS and Recontrust resscinded the default and demand for sale in Jan. 2008. I have also been contacted by a lawyer for Impac about a class action lawsuit that someone filed on Impac. The last time a spoke with CW they said they are the lenders, I have gone to the recorders office and a title company, and they do not show up as the lenders anywhere, and they state that they do not know anything about canceling the default. Also, a realtor checked my Loan doc.s then aske a lawyer friend to check them, they said my doc.s are a mess and the brokers office has been closed by the IRS and the title company has been closed down and they were not licensed in CA . Do you think I would stand a chance in court if I tried to fight who ever is the lender??

  28. Mr. Garfield,

    I am interested in having you as my guest on my radio show.

    My show, “The Truth About Debt Relief” can be heard in 28 states, and nationwide over the internet.

    Please call me at (615) 971-0489.

  29. Can this case stand for the conclusion that their was a failure of consideration on the part of the company that impersonated the lender since that entity never actually loaned anything?

    Benton v. Hofmann Plastering Co., 207 Cal. App. 2d 61

    While there is no direct evidence that Benton, at the time of his representations to the Coelhos, did not intend to carry out his promises, the court was entitled reasonably to infer from all the facts and circumstances that he had no intention of doing so. A promisor who does not mean what he says seldom reveals his true state of mind. That must be determined by the trier of fact from what the promisor does under all the circumstances of the case. (See Cox v. Klatte (1938) 29 Cal.App.2d 150 [84 P.2d 290].) Benton received profits from the Coelho lathing contracts until January 1958. At that time Benton ceased advancing money to Coelho, although several jobs were still in progress and required financing in order to be completed. There is evidence that both Benton’s and Coelho’s losses on the entire transaction were due to Benton’s ceasing to advance further moneys, and Coelho’s inability to otherwise finance himself. Coelho, in several instances, was forced to abandon his lathing contracts for this reason.

    Even partial failure of consideration is a defense to foreclosure of a mortgage or deed of trust. ( Briggs v. Crawford (1912) 162 Cal. 124, 129 [121 P. 381].)

    Benton interprets the findings and conclusion above mentioned as findings of fraud and claims that no fraud was alleged and hence these findings are improper. Technically, Benton may be correct in that the findings might be susceptible to such interpretation. However, the facts upon which they are based show, and the findings and conclusion may reasonably be interpreted as determining, that there was a failure of consideration for the execution of the deed of trust. As Judge Murphy said in his memorandum opinion, “Benton represented to the Coelhos, and particularly Mrs. Coelho, that if the deed of trust were executed and delivered, he would continue to finance Coelho on his jobs. Within a short time thereafter he refused to continue financing Coelho and Coelho was compelled to abandon his business as a lathing contractor.”

    Also, according to Matthew Bender California Real Estate Law & Practice in Chapter 4 -110.43. Rights of Holder in Due Course, it appears to state that if the note is assigned after it has become overdue, then the entity taking the assignment can not be considered a holder in due course.

    A holder in due course is a holder who takes a negotiable instrument:

    (1) For value

    (2) In good faith

    (3) Without notice that it is overdue or has been dishonored or that there is an uncured default with respect to payment of another instrument issued as part of the same series,

    (4) Without notice that the instrument contains an unauthorized signature or has been altered,

    (5) Without notice of any claim to the instrument, and

    (6) Without notice that any party has a defense or claim in recoupment.

    Since most of the recent cases I have read seem to indicate that the assignment occurs for the purpose of foreclosure, you do not lose any right you had against the original lender, whomever that may be.

    Does that sound right to you??

    Sal

  30. Question for Neil

    My friend wants to give me her Miami Beach apartment, where I can sign on to the public record.

    I am thinking that I can become a part owner of record.

    Can I legally do this and can I face the lawsuit myself with council or as pro se?

    Do you suggest I do this please and can you address this possibility?

    Thanks in advance
    Mario

  31. Spouse’s name appears on the Note, and both spouses’ names appear on the Mortgage and the original Warranty Deed/Bill of Sale also contains BOTH names. (Original lender is Meritage Mrtg Co.)

    Spouse leaves (abandons all), remaining spouse (name not on Note but on Mortgage) is refused the right to pay off Sub-Prime loan in full from servicing company (HomEq on behalf of Deutsche Bank) when loan is still in good standing.

    Remaining spouse falls into foreclosure, all the while warning servicing company of the pending financial doom. Servicing company offers no Loss- Mitigation when the foreclosure occurs or prior to.

    Remaining spouse goes to court Pro Se gets snubbed by “his honor”, after claiming fraud, banks attorney starts crying about “time lines”. Frustrated judge sees remaining spouse’s name (the one sitting in court throwing a wrench in the financial win falls of the corporate giants) is NOT ON THE NOTE and says to remaining spouse, “You have no standing, your name is not on the note.” The house gets sold back to the bank.

    How can this be true?

    I am on the Deed and the Mortgage and was named in the lawsuit of Foreclosure Action in a FLORIDA COURT OF LAW. That alone should give me standing… right?

    Civil Rights Violations?

    “Gross Negligence” on behalf of the Lender and Servicing company for failure allow Mortgagee to pay off loan, or to offer loss mitigation?

    “FRAUD” (Colusion?!?) We all know there is “no assignment” and the loan has been “satisfied”, but the judge REFUSED TO ASK THE BANKS ATTORNEY TO PROVE THEY HAVE STANDING. They (DB) even stated in the action they need to “re-establish lost documents”.

    It is my understanding the courts are supposed to allow a bit of leeway for Pro Se litigants. Especially if their claims are reasonable.

    I should think the DAMAGES that could arise out of such a case would be worth a considerable amount (considering the recent $1.25 Million award as of July 31, 2008).

    However there are no attorneys in the South Florida area willing to actually think outside the box and on partial contingent basis (meaning very limited down payment) as this entire situation has destroyed my financial life (and a lot of others I am sure). Let’s face the facts… if I was walking around with an extra $2000.00 in my bank account I doubt I would be in such a financial position.

    I realize the costs involved but at the same time what else can be done? Why is it to me, the Pro So litigant, that it should be a very simple case. I NEVER WANTED TO DEFAULT ON MY LOAN AND WAS REFUSED THE RIGHT TO PAY IT OFF. As a matter of fact I never had a late payment until the very last payment I was able to make. I gave them bastards EVERY LAST PENNY I HAD!

    I hope and pray that others out there in beginnings of the same situation find this site and or someone that can help before they end up in my situation. These bastard stole my home and got paid for it!!! Don’t even get me started on the Trillion dollar bail out from the FED. OMG!!!!

    I wish to give great praise and thanks to Neil Garfield and the things he is doing. Had I found this site a year ago… I would imagine I wouldn’t be homeless in the next two weeks.

    Best wishes to all whom have reached out to me via this site for their help and compassion.

    And to the attorneys I have spoken with (Neil excluded) you guys should start rethinking your priorities and why you wanted to go into law to begin with. I could only hope it was to fight injustice and not drive BMWs. The rewards present themselves when good deeds are done.

    Good luck to everyone.

    JD

  32. I have been asking for original note,judge ignored,gave summary judgement (2)properties,now has set a hearing 10/01..to explain why I’m pockecting rents and not paying mortgages…HELP..need lawyer(VT)..do not want to go to hearing…sleepless in vermont

  33. Dear Michelle,

    I would suggest you read and dig deeper into this website and learn about your rights and defenses against the toxic loan you were put into.

    Short sales are transactions in which you list your home with a local real estate agent that may allege being successful in processing these type of transactions, however the real estate agent has very little leverage, I can tell you this because I am a Principal Broker with over 15 years of experience. The fact of the matter is that once you list your home, you as the home owner are wishing for a miracle under the illusion that under current market conditions your home should sell quickly and for a fair price. The real estate agent in the mean time is sending faxes and copies of your financial information to the mortgage company to request for them to allow for a sale bellow your loan amount, this process may take between 60 days to 100 years, these lenders have no incentive and no interest in doing short sales despite what the ever positive real estate agent may tell you. As you will find out in this blog, most servicing agents and lenders do not have possession or ownership of the debt, and this particular issue alone will make it almost impossible for them to make a ruling on the sale before the foreclosure mill attorney files for foreclosure which in essence is what these entities want to do, as you will learn in your research, the Wall Street geniuses that created the toxic mortgage product you were victimized with, sold worthless paper to investors who in turn are desperate in some way to recover some of their loses, and the parties that were left with the servicing of your loan have no other business than to do what they do best which is to steal the American Dream away from those of us who actually work hard for our living. The only real thing of value is your home, and they want it bad.

    Please, Michelle as you research this web site you will find out that Mr. Garfield the Giant behind this blog, is providing this information free, and his mission is to stop all foreclosures.
    Just open your mind to the opportunity to learn about your rights and how to assert them against those who under fraud, lies, deceit, misrepresentation, and a total disregard for the repercussions of their actions, lied to the Investors, the American people and have made a total joke of our financial system.

    There are laws that are in the books that if you act affirmatively can protect you and can revert the damage done onto you and your loved ones.

    I am fighting for my home and helping others to do so. Short sales and loan modifications are transactions that should be reviewed by a qualified attorney since they may have tax and legal repercussions.

    I am not a fan of short sales, I listed over 100 homes for short sale last year and only 2 went to settlement, I felt terrible about the people and their situation. I do not know your particular situation and I might not be licensed in the state where you reside, therefore I cannot provide you with specific real estate advise, But if you choose to sell your home, make sure you hire the best and most effective real estate agent in your market place, demand to see their references, and to see the statistics for the last 90 days, ask for the facts and proof, remember it is still your home and if you ask me, I would love to keep it that way.

    In my experience short sales do not work, and modifications are not the silver bullet either. Start doing your homework with enough time.

    Just keep in mind the lender thinks that you still do not know that they may have violated your rights, do a mortgage audit to get the necessary facts . A mortgage audit is the blue print a qualified attorney may use to defend your cause.

    Remember this dig deeper into this website, you will most likely be better informed than 99.9% of the attorneys in your town. Do not allow any one to steal your dreams.

    Last Thursday, I attended a seminar with Mr. Garfield and Mr. Keiser in L.A., and I heard a very interesting quote, and it goes like this ” IN A WORLD FULL OF LIES, TELLING THE TRUTH IS CONSIDERED A REVOLUTIONARY ACT”, I hope I wrote it correctly, and I cannot recall who it is from, but I hope you understand what I meant.

    God Bless

    I bid you success!!!

  34. I need some information regarding short sales v foreclosure, or short sales in general; negotiations, etc. I am in a horrible subprime loan situation

  35. Can you please tell me what I need to file to stay an eviction hearing on Aug 19th while I implement your stratagies Please respond I am not sleeping well.

    Thank You immensely.
    John Stewart

  36. To Whom it may concern
    My name is Steve from NH.I am writing to tell you that if it wasnt for Neil Garfield I would be on the street by now.He personally helped me to fight the banks and I am confident that I will win.
    Also he is helping my lawyer that I have recently found with all the legal arguments to be succesfull in our battle.Never did he once ask for any money.
    Steve

  37. I am left speechless here. I keep saying I used the writings here to face off with my bankster and left the sorry vermin with the jaws dropped, like a vile Florida Crock. The Crocks are better more deserving predators at least they indicate up front that they are fierce.
    The banks did so in a very cowardly, sly manner.

    But really I feel for this poor man he lacks foresight and intelligence to stand in the face of an enemy and fight, even when given free tools.

    I am so proud of myself that I was able to stand in the face of this face off and succeed.

  38. Its a difficult situation, you are mad, frustrated and broke, otherwise you would be paying your mortagage payment and not be in foreclosure. Lawyer’s have to put gas in their car, buy food and pay their mortgage too. The key is if you are going to spend money on a lawyer it needs to be a competent one who knows what the heck they are doing? You already have been victimized by a predatory lender …you don’t need a predatory lawyer. At least this site can direct you to a lawyer that can provide adequate defense if you are fighting foreclosure. Otherwise mail in the keys and move out, don’t take out your frustrations on someone who is trying to put the information out there for free for you to fight in court yourself or educate you to school a lawyer you know to fight for you. Everything on this site is free, use it to your benefit as many have or get a lawyer and use it as a resource…this site speaks the truth …which in a “world of universal deceit is a a revolutionary act”

    – George Orwell

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