Last Day! Register Today for “Death of a Salesman — when the party who “originated” an apparent loan transaction is dead or bankrupt” A 90-minute seminar and discussion with Neil Garfield. December 11, 2017 at 4pm Eastern.

Death of a Salesman: When the party who “originated” an apparent loan transaction is dead or bankrupt.

Register Now- 2 CLEs: Death of a Salesman — when the party who “originated” an apparent loan transaction is dead or bankrupt.

Seminar will include a Powerpoint Presentation from Neil Garfield, by email, the day before the seminar.

REGISTRANTS WILL RECEIVE A LINK to the AUDIO FILE OF THE RECORDED SEMINAR AFTER SEMINAR IS COMPLETE.

REGISTRANTS WILL RECEIVE A TRANSCRIPT OF THE SEMINAR (UPON REQUEST) FOR A HANDLING FEE OF $25.00 IF PAID PRIOR TO SEMINAR (delivered by email).  The transcript will be available post-seminar for $79.

Foreclosure expert and attorney Neil Garfield, M.B.A,, J.D.*, will address what happens when the putative loan originator no longer exists.  This strategy seminar will cover the best way to attack mortgage liens, notes, assignments, powers of attorney and endorsements, when servicers like Ocwen, Nationstar, and others, claim to have a lasting (durable) POA from an originator;  but where the originator or alleged initial lender went out of business in bankruptcy or had another “legal death” years before.

This 90-minute seminar will cover how to attack the creation, use, and recording of such documents after the loss of actual POA rights and potential criminal ramifications (in addition to civil fraud or RICO on the county, the court, the homeowner and other potential buyers of the property).   Neil Garfield will provide a short examination of this fraudulent scheme, and litigation strategies to overcome deceptive power-of-attorneys. You will receive a recording of the seminar within 24 hours of conclusion.

This seminar is for informational purposes only and is not legal advice.

Seminar Date: Monday, December 11, 2017

Death of a Salesman: When the “originator” in a home mortgage situation has gone bankrupt of is otherwise out of business.
Lecture:
  1. Law vs. Politics
  2. Student Loan Analogy
  3. Reality of Loan Transaction With Third Party Originator
  4. Debt vs. Loan vs. Note vs. Mortgage
  5. Negotiable Instruments and Statute of Limitations
  6. Disclosure
  7. Under standing the Premise Underlying the Reality of “Securitized” Transactions: The Real World
  8. What Gets Traction in Court, What to Avoid
  9. Reality vs. Legal Doctrine: Ex dolo malo non oritur actio [“no action arises from deceit”.
  10. Realities for Investors
  11. The Politics of Home Foreclosure
  12. Death of the Salesman or Originator
  13. Nonexistent Transactions
  14. Fabrication of Documents
  15. Strategies for Homeowners When the Salesman is Dead
  16. Interrogatories
  17. Request to Produce
  18. Request for Admissions
  19. Cross Examination
  20. Unfunded Trusts

Credits: 2 CLE hours (pending)

Time: 4 pm Eastern/ 3 pm Pacific/ 2 pm Mountain/ 1 pm Pacific

Method:  A call-in number and access code will be provided after registration via email.  Powerpoint presentation will be emailed to attendees prior to seminar.

Length: 90 Minutes including Q&A at end of seminar.

Cost: $129 Attendance and Audio File download of the seminar.

$25.00 additional fee for copy of Transcript if registered for seminar (please allow

five days handling time/delivery by email).  Non-attendees will be able to purchase

transcript, recording and PowerPoint for $99 post-seminar (delivered by email).

Register TODAY for $129.00

Licensed attorneys: will receive 2 CLE hours (credits pending). Please include Bar and License information on registration or email us at info@lendinglies.com.

You will receive an email after registration with further instructions.

Questions?  Please contact us at  202-838-6345, or at info@lendinglies.com.

________________________________________________________________________________

*About Neil F. Garfield, M.B.A., J.D.
Mr. Garfield has appeared as lead counsel in approximately 2,000 jury, non-jury, and administrative trials and final hearings.
Neil Garfield is a practicing attorney in Florida for 41 years. He is also a former investment banker who worked on Wall Street with several independent firms and his family’s Garfield and Company, Members of all major securities exchanges. He is recipient of numerous academic awards for scholastic achievement and for contributions to the study of law. For 12 years he has been publishing more than 5,000 articles on the securitization of debt (on which he is recognized internationally as a leading expert), home mortgage lending, and foreclosures, especially those involving false claims of securitization. He has personally served as lead counsel in several cases where the homeowner prevailed at trial and has served in hundreds of other cases as a consultant with the same result. He received his M.B.A. from Iona College Graduate School of Business Administration, magna cum laude. He received his J.D. from Nova Southeastern Shepherd Broad Law School, cum laude. His work is cited in thousands of briefs, orders and opinions in American jurisprudence, many of which can be found on his blog that has been visited more than 12 million times. see www.livinglies.wordpress.com.

Information, Resources and Help with Your Mortgage Loans – Over 12,000,000 Visitors

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MISSION STATEMENT: I believe that the mortgage crisis has produced manifest evil and injustice in our society. I believe our recovery will never reach the majority of struggling Americans until we restore equal protection for all citizens and especially borrowers in our debt-ridden society. LivingLies is the vehicle for a collaborative movement to provide homeowners with sufficient resources to combat bloated banks who are flooding the political market with money. We provide thousands of pages of free forms, articles and discussion of statutes, case precedent and policy on this site. And we provide paid services, books and products that enable us to maintain an infrastructure to provide a voice to the victims of Wall Street corruption.

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RECOMMENDED READING:

WHOSE LIEN IS IT ANYWAY? by Neil F Garfield. E-Book available on our online store.

CHAIN OF TITLE by David Dayen. Available on Amazon

LISTEN LIBERALS! by Thomas Frank. Available on Amazon and Kindle.

Pretender Lenders: How Tablefunding and Securitization Go Hand in Hand” By William Paatalo and Kimberly Cromwell. CLICK: http://infotofightforeclosure.com/tools-store/ebooks-and-services/?ap_id_102

The Phantoms of Foreclosure: Phantom Creditors, Trusts and Debt

by Jay Guggenheim

Hurry!  Sign up for the ‘Death of a Salesman’ seminar on Monday at 4pm Eastern here.

 

Neil Garfield, attorney Charles Marshall and investigator Bill Paatalo discuss how mortgage servicers are collecting phantom debt on behalf of phantom creditors by creating fabricated and forged documents on the Neil Garfield show.  Servicers counterfeit mortgage notes and pursue collection of this ‘debt’- but who do they send the proceeds they collect to, if there is no true creditor or funded trust that can be identified, or can accept payments from the servicer?

It is now known that:

  • The banks funded themselves instead of the trusts which never really existed (phantom trusts).
  • The banks covered up their theft of investor money by originating or buying loans with investor money and not trust money.
  • The theft has been the subject of settlements in which the owner of the debt — the investors — is paid off with cash and “resecuritization” in which actual loans were “sold” into a new trust (Like Zuni) by a party who STILL didn’t own them (phantom sales).
  • The proceeds of judicial and nonjudicial sales do not go to investors but back to the “underwriters” of nonexistent worthless certificates issued by nonexistent trusts that are registered nowhere and unfunded (phantom trusts).
  • The underwriter acts as “Master Servicer” for the phantom trust and collects “servicer advances” that were neither advances nor from the servicer, but rather a return of investor capital even if it was OTHER investors.
  • The “Trustee” of the Trust is not a Trustee either in writing nor in practice (phantom trustees).
  • We know the banks are acting on their own behalf and not on behalf of the investors or the trusts.

What we still don’t know- is where do the proceeds collected by the servicers from homeowners go- if there is no Trustee or Trust? 

The servicers are trying a ‘hide in plain site’ strategy by deliberately adding new players to the chain of title and switching servicers so another opaque level is created.

  1. Servicers are often changed the moment a homeowner goes into default.  Therefore, if litigation ensues, the servicer won’t have to reveal who payments are being forwarded to because no payments are being made, and
  2.  Servicers often change immediately after a foreclosure sale occurs so it isn’t disclosed where the sale proceeds went to.

Therefore, Neil Garfield suggests that homeowners and attorneys subpoena, not demand in discovery, who receives/received payments from the servicer, and name not only the current servicer in litigation, but former servicers as well.   Charles Marshall points out that he sees this servicer-switch particularly with homeowners who prove difficult or litigious, and to create an additional layer to conceal the truth.  The servicer transfers are an attempt to launder the papertrail.  He also says that this strategy makes it more difficult to discover who the true lender at origination was.

 

Neil Garfield says this plan is standard operating procedure now and that he can “imagine a room full of lawyers trying to plan out a strategy to confuse the homeowners, attorneys and courts- first they must make the money and ownership transfers difficult to understand, and then they must devise a system that makes it difficult for pro se litigants to get the information they need to create a defense.”

Back in 2007 and 2008 Garfield said he was sending out QWRs on behalf of homeowners who were not in default and saw an interesting pattern.  The homeowners who were current, and not in foreclosure, would receive letters providing a payoff amount, but no copies of note or assignments; but homeowners in foreclosure would receive payoff amounts including endorsed notes and assignments, to establish a credible chain-of-title.  Thus, those in foreclosure received a full QWR response including fabricated and robosigned documents that created the appearance of legitimacy.

Neil Garfield says that the banks and servicers have created an Industry of Fraud where people can create an entity, purchase lists of old debt that may or may not be valid, and attempt to collect.  Most people will tell the debt-collector to prove it or go to hell, but there is a percentage of poor, disadvantaged or unsophisticated people who will pay up.  Mortgage servicers and REMIC trustees are following the same business model by attempting to collect on debt they can’t prove they own without resorting to fabricated and forged documents.

Investigator Bill Paatalo says that in all of the years of investigating the trusts he has not yet seen any evidence that the trusts were funded or the entity foreclosing on the home purchased the debt legitimately.  In litigation, he never sees a credit or certificate holder identified and the banks rely on smoke and mirrors to collect on the phantom debt.  He said that he recently had a client that was not in default but was curious about who owned his loan.  Bill’s client received a response from Aurora emphatically stating that the note had never been transferred and would never be transferred unless there was a default.  Aurora was perplexed why a homeowner that was not in default was concerned about the ownership of his loan.  Paatalo claims he has called the GSEs and Hud who refuse to return his phone calls so he can verify a Power of Attorney.  He says it is clear that the Power of Attorneys are being substituted for the missing assignment of mortgages- because Power of Attorneys are typically not recorded in the county records.

Phantom debt is being collected on behalf of phantom creditors and the nonexistent party is being papered over by pledging the loan to a trust that doesn’t exist, as agents of agents of agents, and false Power of Attorneys and Attorneys in Fact.  The scheme creates such a convoluted ‘fact’ pattern so that homeowners and their attorneys must try to untangle the ownership knot thus requiring hours and  hours of work.  Garfield points out that this layering, or laddering as Goldman Sachs calls it, id a deliberate attempt by the banks, to confuse whoever is bothering them.

For example, there may be a signature and the name of a corporation on a document, below  it will show Bank of America as successor to Lasalle Bank as Trustee, as Trustee for XYZ trust, as Attorney In Fact, for x entity.  This deliberate obfuscation should be brought to the attention of the court and is a strategy to push out time and space- to buy time and also for attorneys to create additional billing hours.

Neil Garfield calls this strategy of the major investment banks, the “real thiefs in interest” because they do not posses a party who can be identified as the “true party in interest” as required to declare a default or foreclose.  The investment banks create puppet attorneys who do their dirty work, and because of this risk, the lawfirms facilitating this crime are paid handsomely.

Bill Paatalo recently who is an expert on the ‘hide, conceal, and cover’ strategies by the banks, recently obtained a copy of a itemized settlement statement from a lawfirm defending a USBank/Chase foreclosure.  The bank had paid over $450k and over 1,224 billable hours to defend against a simple foreclosure action, to buy a Cynthia Riley issue and hide the fact there was no certificate holders.  Paatalo points out that the head attorney was paid $628 an hour for four months of full 40-hour work weeks.   It is likely the mortgage wasn’t a fraction of this amount, but it shows that the banks are afraid. He points out that it is unlikely that any investors would authorize that type of expenditure if they existed- but would look for an equitable solution.

Garfield says to take the billing expense issue one step further, and states that attorney fees are deliberately ran up by law firms defending the banks due to the risk of the work being done.   Attorneys submitting forged and fabricated documents are putting their careers on the line, therefore they build in a profit for undertaking that much risk.

Additionally, the lawfirms have software that can recreate the record, cover up bonuses, move numbers around and create legitimate billing hours that were never done.  This ‘bonus’ is overlooked by the bank as compensation for risk taking.    Listen to the audio recording above to listen to investigator Bill Paatalo discuss a recent tax settlement where the certificate holders state that they have no right to recover from the homeowner, and no right to enforce the mortgage or note.

And lastly, Neil Garfield educates homeowners that the chances of proving in court ‘what really happened’ will likely not happen for sometime, if ever, and the goal of the homeowner and his or her attorney should be to reveal the GAPS in what is being assumed as the foreclosure path.

 

 

 

 

 

 

Bullseye! Investors Are “Far Removed” from Alleged Underlying Mortgages

IF YOU ARE IN FORECLOSURE WITH SOME BANK CLAIMING TO BE TRUSTEE FOR  CERTIFICATE HOLDERS YOU NEED TO READ THIS ARTICLE.

It is in tax litigation that some of the truth comes out. While the courts have yet to determine if the REMIC Trust ever existed, they are coming to some interesting conclusions — corroborating all the basic underlying themes of this blog and all my work since 2007.

We can help evaluate your options!
Get a LendingLies Consult and a LendingLies Chain of Title Analysis! 202-838-6345 or info@lendinglies.com.
https://www.vcita.com/v/lendinglies to schedule CONSULT, leave a message or make payments.
OR fill out our registration form FREE and we will contact you!
https://fs20.formsite.com/ngarfield/form271773666/index.html?1502204714426
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
—————-

Hat Tip Bill Paatalo

see Cashmere Valley Bank v WA Dept of Revenue_Unsecured Mortgages (WA Sup Ct 2014)

Borrowers making the payments that eventually end up in Cashmere’s REMIC investments do not pay Cashmere, nor do they borrow money from Cashmere. The borrowers do not owe Cashmere for use of borrowed money, and they do not have any existing contracts with Cashmere. Unlike HomeStreet, Cashmere did not have an ongoing and enforceable relationship with borrowers and security for payments did not rest directly on borrowers’ promises to repay the loans. Indeed, REMIC investors are far removed from the underlying

mortgages. Interest received from investments in REMICs is often repackaged several times and no longer resembles payments that homeowners are making on their mortgages.


While it is true that the interest received by Cashmere from the REMICs ultimately comes from promissory notes secured by mortgages and deeds of trust, Cashmere has no interest in the underlying mortgages and deeds of trust and is not a beneficiary of those instruments.

In plain language, all cases in which XYZ appears as Plaintiff or the alleged beneficiary under a deed of trust and it asserts its appearance as, for example, US Bank as Trustee for the certificate holders of 2007-A Mortgage pass though certificates it is not possible to ascertain the interests of the certificate holders without examining the certificates, their indentures and any side agreements that apply.

As stated in this Washington Supreme Court case, certificates vary as to whether they grant an interest in notes, mortgages or even a particular income stream. Prepayments by homeowners might not be paid at all to “preserve” the interest income flow. Payments received by way of a foreclosure sale are handled the same way, with deductions for alleged “servicer advances” that are neither advances nor do they come from the servicer.

The ultimate source of cash flow was mortgage payments. However, Cashmere’s investments were not backed by any encumbrance on property nor did Cashmere have any legal recourse to the underlying trust assets in the event of default. Thus, Cashmere’s investments were not “primarily secured”

by mortgages or trust deeds. We affirm the Court of Appeals and deny Cashmere the deduction.

_______

The secondary market buyer acquires the right to receive the borrower’s principal and interest payments on the home loan and also the right to foreclose on the home if the borrower fails to make timely payments.4 The buyer often purchases numerous mortgages from various institutions and then “securitizes” the mortgages by pooling (or packaging) the mortgages and issuing interests based on those pools to investors. These interests-that is, these MBSs-vary in how they are structured and what kind of interest the investors receive. See Cashmere Valley Bank v. Oep’t of Revenue, 175 Wn. App. 403, 305 P.3d 1123 (2013) (explaining creation of MBSs).

The Neil Garfield Foreclosure Show at 6pm Eastern: Phantom Collectors of Phantom Debt

Phantom Debt

Phantom Debt collected from Servicers on behalf of Phantom Creditors

Listen in on Thursdays LIVE! Click in to the The Neil Garfield Show

Or call in at (347) 850-1260, 6pm Eastern Thursdays

Mortgage servicers are collecting Phantom Debt on behalf of Phantom creditors by creating fabricated and forged documents.  Servicers counterfeit mortgage notes, assign them a value, and pursue collection of this ‘debt’- but who do they send the proceeds to, if there is no true creditor or funded trust that can be identified, or can accept payments from the servicer?
According to Neil Garfield:

  • We know that the banks funded themselves instead of the trusts which never really existed (phantom trusts).
  • We know that the banks covered up their theft of investor money by originating or buying loans with investor money and not trust money.
  • We know that the theft has been the subject of settlements in which the owner of the debt — the investors — is paid off with cash and “resecuritization” in which actual loans were  “sold” into a new trust (Like Zuni) by a party who STILL didn’t own them (phantom sales).
  • We know that the proceeds of judicial and nonjudicial sales does not go to investors but back to the “underwriters” of nonexistent worthless certificates issued by nonexistent trusts that are registered nowhere and unfunded(phantom trusts).
  • We know that the underwriter acts as “Master Servicer” for the phantom trust and collects “servicer advances” that were neither advances nor from the servicer, but rather a return of investor capital even if it was OTHER investors.
  • We know that the “Trustee” of the Trust is not a Trustee either in writing nor in practice (phantom trustees).
  • We know that the banks are acting on their own behalf and not on behalf of the investors or the trusts.

So with this fact pattern, the central question becomes: To whom does the “Servicer” send money after they collect their monthly servicing fee, or after they foreclose?  Based on the aggressive and illegal behavior of mortgage servicers- it would be fair to speculate that the servicer does not forward funds to any party but retains all money for itself.  It would also explain why loan servicers used HAMP to generate payments from the homeowner and sabotage any modification.  Servicers are incentivized to force the loan into default, not to work-out a plan that helps the homeowner remain in their home- because a foreclosure results in massive profits likely retained by the loan servicer.

Investigator Bill Paatalo of BP Investigative Agency will also discuss the fact that he has examined Hundreds (thousands) of cases and has yet to see a single document or any information that reveals the mortgage securitization money trail.   Neil Garfield speculates that “since the underwriter is posing as the Master servicer, even though the trust might not exist, that the money is going to the underwriter. That in turn leads to the question of what the Master Servicer did with the money?”

One thing is known for sure and that is that the servicer is collecting payments from homeowners who are paying. It is also common knowledge that servicer advances have been securitized indicating that “certificate holders” are being paid without recourse. Of course we don’t know how much is claimed as servicer advances and whether the money was claimed but not really paid because the banks have successfully buried this information.   It’s a rat’s nest by design,  but eventually the information will surface.

 

Paatalo will touch on Cashmere Valley Bank v WA Dept of Revenue_Unsecured Mortgages (WA Sup Ct 2014), where it was discovered that REMIC investors are far removed from the underlying mortgages.  In this case the court ruled that the investor must have some type of recourse against the collateral.  In Cashmere, the REMIC issuers, “offered no interests in mortgage or trust deeds to back their promises to pay investors. Relatedly, Cashmere has no direct or indirect legal recourse to the mortgages that underlie its REMIC investments in the case of default.”  Thus, the court ruled that Cashmere could not claim a tax deduction.

Neil Garfield points out that that in Cashmere, the borrowers do not owe Cashmere because Cashmere never loaned money and there is no contractual relationship between the borrowers and Cashmere. That is especially significant and Garfield reminds homeowners and attorneys that some of the best cases supporting securitization fail are found in tax law.

Cashmere illustrates how different types of interests are given to the holders of certificates and vary. Which means that in cases where US Bank appears as Trustee for certificates or certificate holders that might mean nothing- but homeowners and attorneys should have an absolute right to see the certificates and any indenture or other agreements regarding the certificate and its entitlement to income and the alleged underlying mortgage.

Garfield reiterates that strategy, “might be just what we need to force the opposition to respond to discovery about the nature of the certificates and if the Trustee is asserting a direct agency relationship with the certificate holders (i.e., in cases where a trust is not mentioned), and then we would be entitled to see that agency agreement and very possibly allowed to see the names of the certificate holders.

 

Excerpts from Cashmere include (thank you Bill Paatalo for providing these excerpts):

Cashmere snip - Investors are far removed from the underlying mortgages.PNGCashmere snip - Investors are far removed from the underlying mortgages(1).PNG

and lastly:Cashmere snip - no direct or indirect legal recourse to the mortgages that underlie REMIC investments.PNG

Bill Paatalo, Private Investigator:
BP Investigative Agency, LLC
P.O. Box 838
Absarokee, MT 59001
Office: (406) 328-4075
Attorney Charles Marshall, Esq.
Law Office of Charles T. Marshall
415 Laurel St., #405
San Diego, CA 92101

Bank Fabrication and Fraud Causes Rise of New “Industry” — Phantom Debt

It was inevitable that smaller players would seize upon the “irresistible” opportunity to create or sell phantom debt. With the justice system lining up to approve the practice of stealing debt owned by investors and claiming the right to collect, it did not take a genius to come up with a plan to invent the right to collect debts that never existed.

It also didn’t take a genius to realize that that if you could pretend to be a servicer or collector of a real debt, it was just as easy to skip the part about real debt.

We can help evaluate your options!
Get a LendingLies Consult and a LendingLies Chain of Title Analysis! 202-838-6345 or info@lendinglies.com.
https://www.vcita.com/v/lendinglies to schedule CONSULT, leave a message or make payments.
OR fill out our registration form FREE and we will contact you!
https://fs20.formsite.com/ngarfield/form271773666/index.html?1502204714426
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
—————-

Hat tip to Eric Mains

see Therrien

See https://www.bloomberg.com/news/features/2017-12-06/millions-are-hounded-for-debt-they-don-t-owe-one-victim-fought-back-with-a-vengeance

systematic schemes to collect on fake debts started only about five years ago. It begins when someone scoops up troves of personal information that are available cheaply online—old loan applications, long-expired obligations, data from hacked accounts—and reformats it to look like a list of debts. Then they make deals with unscrupulous collectors who will demand repayment of the fictitious bills. Their targets are often poor and likely to already be getting confusing calls about other loans. The harassment usually doesn’t work, but some marks are convinced that because the collectors know so much, the debt must be real.

Phantom debt actually falls into multiple categories all sharing the same fundamental characteristic — there is no right to collect it. The debt might be entirely fictional, partially fictional, or real. The parties seeking to collect on it are either real debt collectors or just scam artists. The owners of the debt have been left in the dust. They are investors who were defrauded and who are being silenced by confidential settlements.

So a small cottage industry has emerged out of the cancerous great mortgage fraud. To make money you merely need to get a list of people and then send out collection notices. Those collection notices look pretty frightening until you scratch the surface.

In the end, it comes down to the same thing we have been facing in wrongful foreclosures (which means virtually all foreclosures). The foreclosing parties are no more than the same scam artist fake debt collectors that has rippled through the financial industry.

They don’t own the debt because they never paid for it either by lending money nor by paying for the debt afterwards. Fake documents are used to paper over the obvious defective nature of their claims. The money collected is never used to forward or pay to the real victims — investors who put up the money in the first place.

All this became possible because the justice system discarded the rule of law. Had it simply stayed consistent with existing case law and statutes, virtually none of the foreclosures would have happened, and the new industry of fraudulent collections would have been limited to just a few scam artists who ended up in jail.

Back when dinosaurs roamed the Earth and I was doing foreclosures for banks and homeowners associations, I can remember judges denying me a final judgment and sending me back to the drawing board because my paperwork was incomplete and therefore “not in order.” Every judge in the country was doing that whether the case was contested or not. The Judge reviewed the documents and if the dots were not connected they threw it back at the lawyer.

What happened to that?

Defining the Players — Seminar on Monday

There really is only one reason to attend the seminar I am conducting on Monday. Lawyers and Pro Se Litigants will get a bird’s eye view of the players and specific strategies to deal with claims made by a “Successor” or “attorney in Fact” when the “originator” has gone out of business or is in bankruptcy.

Dead originators open the door to strategies that don’t work in other fact patterns.

Sign up now at

Death of a Salesman — when the party who “originated” an apparent loan transaction is dead or bankrupt.

The usual published chain of parties in cases where there are claims of securitization rarely includes all of the participants. The actual list is much longer. They all overlap in time so it is not possible to actually view them as specific numbered steps. The items in bold represent a main focus of the seminar:

  • Salesperson
  • Originator
  • Aggregator
  • Securities underwriter trading desk
  • Securities underwriter CDO manager
  • Designated “Lender”
  • Nominee (e.g. MERS)
  • Seller
  • Custodian
  • Securities Underwriter/ Master Servicer
  • Subservicer
  • Named Trustee of a self proclaimed REMIC Trust
    • Or Trustee for Certificates
    • Or Trustee for Certificate holders
  • Named REMIC Trust
  • Certificate holders
  • Investors who advanced money
  • Borrowers who received money
  • Trustees under deed of trust
  • Holders with rights to enforce the note
  • Substituted Trustees
    • On Deeds of trust
    • On REMIC Trusts
  • Designated foreclosing parties, assignors/assignees
  • Named attorneys in fact

Another Countrywide Sham Goes Down the Drain

Banks use several ploys to distract the court, the borrower and the foreclosure defense attorney from the facts. One of them is citing a merger in lieu of presenting documents of transfer of the debt, note or mortgage. We already know that the debt is virtually never transferred because the transferor never had any interest in the debt and thus had no authority to administer the debt (i.e., as servicer).

So the banks have successfully pulled the wool over everyone’s eyes by citing a merger, as though that automatically transferred the note and mortgage from one party to another. Mergers come in all kinds of flavors and here the 5th Circuit in Florida recognizes that simple fact and emphatically states that the relationship between the parties must be proven along with proof that the note, or authority to enforce the note, must be proven by competent evidence.

We can help evaluate your options!
Get a LendingLies Consult and a LendingLies Chain of Title Analysis! 202-838-6345 or info@lendinglies.com.
https://www.vcita.com/v/lendinglies to schedule CONSULT, leave a message or make payments.
OR fill out our registration form FREE and we will contact you!
https://fs20.formsite.com/ngarfield/form271773666/index.html?1502204714426
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
—————-

see Green v Green Tree Servicing Countrywide Home Loans et al 5D15-4413.op

*Judgment for Borrower (Involuntary Dismissal)
*Failure to provide evidence to explain relationships in mergers
*Failure to provide evidence of the terms of the merger and the transfer of the subject loan
* Failure to to provide evidence of standing at commencement of the lawsuit

An interesting side note to this case is that it never mentions the debt, which is the third rail of all claims of transfers and securitization. The opinion starts off with a recital of facts that differs from most other cases, to wit: it talks about how the homeowner signed the note and mortgage, and does not reference a loan made to him by the originator, Countrywide Home Loans (CHL).

The court remains strictly in the confines of who owns, controls or has the right to enforce the note — a fact that is relevant only if the note is evidence of an underlying debt. If no such debt exists between CHL and the homeowner, then the note is irrelevant — unless a successor possessor actually paid for it, in which case the successor could claim that it is a holder in due course and that the risk of loss shifts to the maker of the note under such circumstances.

The Green case here stands for the proposition that the banks may not paper over ownership or control or the right to enforce the note with vague references to a merger. The court points out that a merger might not include all the assets of one party or the other. More particularly, a merger, if it occurred must be proven along with some transfer of the subject note and mortgage.

And very specifically, the court says that entities may not be used interchangeably. The foreclosing party must explain the relationship between the parties affiliated with the “merged” entities.

[NOTE: Bank of America did not directly acquire CHL. CHL was merged into Red Oak Merger Corp., controlled by BofA. One of the reasons for doing it that way is to segregate questionable assets and liabilities from the rest of the BofA. BofA claimed ownership of CHL, and changed the name of CHL to BAC Home Loans. But it didn’t just change the name; it also made assertions, when it suited BofA that BAC was a separate entity, possibly an independent entity, which is also not true. So the Court’s objection to the lack of evidence on the merger is very well taken].

The Court also takes note of the claim that DiTech Financial was formerly known as Green Tree Servicing. That is not true. The DiTech name has been used by several different entities, been phased out, then phased in again. Again a reason why the court insists upon evidence that explains the actual relationship between actual entities, and not just names thrown around as though that meant anything.

Ultimately Green Tree, which no longer existed, was made the Plaintiff in the action. Some certificate of merger was introduced indicating a merger again, this time between DiTech Financial and GreenTree. In this lawsuit Green tree was presented as the surviving entity. But in all other cases DiTech Financial is presented as the surviving entity — or at least the DiTech name survived. There is considerable doubt whether the combination of Green Tree was anything more than rebranding an operation merging out of the Ally Financial bankruptcy and ResCap operations.

A sure sign of subterfuge is when the lawyer for the foreclosing party attempts to lead the court into treating multiple independent companies as a single entity. That, according to this court, would ONLY be acceptable if there was competent evidence admitted into the court record showing a clear line of succession such that a reasonable person could only conclude that the present successor company in fact encompasses all of the business activities and assets of the predecessors or, at the very least, encompasses a clear chain of possession, title and authorization of the subject loan.

[PRACTICE NOTES: Discovery of actual merger documents and documents of transfer should be vigorously pursued against expected opposition. Cite this case as mandatory or persuasive authority that the field of inquiry is perfectly proper — as long as the foreclosing entity is attempting tons the mergers and presumptive transfers against the homeowner.]

 

 

 

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