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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. I 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.

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

Congress Wakes Up to Continuing Lies from Major Banks

The takeaway from this is that when Wells Fargo lies it is telling a whopper. The same is true for Chase, Citi and Bank of America. They tell lies that lead to ruin of working American families and they don’t care. Their only concern is protecting the fraudulent scheme that brought trillions of dollars in illicit revenue to them and then paying a “cost of doing business” fine or settlement that is literally a few cents on the dollars.

Let us help you plan your foreclosure defense strategy, discovery requests and defense narrative: 202-838-6345. Ask for a Consult

PLEASE FILL OUT AND SUBMIT OUR FREE REGISTRATION FORM WITHOUT ANY OBLIGATION. OUR PRIVACY POLICY IS THAT WE DON’T USE THE FORM EXCEPT TO SPEAK WITH YOU OR PERFORM WORK FOR YOU. THE INFORMATION ON THE FORMS ARE NOT SOLD NOR LICENSED IN ANY MANNER, SHAPE OR FORM. NO EXCEPTIONS.

Get a Consult and TERA (Title & Encumbrances Analysis and & Report) 202-838-6345. The TEAR replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).

THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.

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see Wells Fargo Lies Wake Up Democrats

The latest in along chain of Wells Fargo scandals the recent admission by the bank that it “accidentally” foreclosed on hundreds (more likely thousands) of homes destroying the financial future of borrowers, in many cases leading to divorce, disease and death. And now WFB thinks it can escape by paying the foreclosed families $12,800 (down from $20,000 previously reported). Senator  Elizabeth Warren literally want the head of Wells Fargo — to resign. Congressman Schatz didn’t go that far but is asking some real questions.

The link to the above article provides a glimpse through the eyes of Brian Schatz, D-Hawaii, of what questions to ask, some of which can be borrowed to apply to discovery when defending foreclosures now, particularly those involving Wells Fargo Bank.

In his letter, Schatz said that he hopes that regulators take action against Wells Fargo over the issue, but Schatz also laid out the following lengthy list of questions for Wells Fargo and said that he expects answers by the end of the month:

  • When was the error in Wells Fargo’s HAMP underwriting tool first discovered? What actions did Wells Fargo take when the error was first discovered? At that time, did Wells Fargo examine whether the error impacted any customers?
  • What led Wells Fargo to examine the impact of the error on consumers who applied for a loan modification? When did that examination begin and end? When will Wells Fargo know the total number of impacted consumers, if the company does not yet know?
  • Have the impacted customers been notified that they were harmed by Wells Fargo’s error? If so, through what medium? Can you confirm that they received this notification? If not, what steps will Wells Fargo take to ensure that impacted customers are aware that they were harmed?
  • Has Wells Fargo notified impacted customers of the funds available to remediate the harm that they suffered? If so, through what medium? What will customers need to do to receive compensation?
  • What methodology did Wells Fargo use to determine that $8 million should be accrued for remedying customers for the harms that resulted from this error?
  • Please provide details on the specific types of harm that Wells Fargo plans to remediate for the impacted customers, and how Wells Fargo plans to make those determinations.
  • What terms will Wells Fargo require impacted customers to agree to as a condition of accepting remediation from Wells Fargo? Will Wells Fargo ask an impacted customer to waive any legal rights?
  • Through HAMP, the Treasury Department provided financial incentives to participating institutions who modified eligible troubled borrowers’ mortgages. Did Wells Fargo receive any incentives for the customers who were impacted by the underwriting tool error? If so, has Wells Fargo returned those financial incentives to the Treasury?
  • Did Wells Fargo report the foreclosures or any missed payments that could be directly or indirectly related to Wells Fargo’s errors to credit reporting agencies? If so, will Wells Fargo commit to working with the credit reporting agencies to remove these entries from borrowers’ credit reports?
  • Please provide information about the disposition of impacted customers’ foreclosed properties. Did Wells Fargo sell these properties? Does Wells Fargo plan to reconnect families to their homes?
  • In the same quarterly report, Wells Fargo announced an increase in its common stock dividend of 10% and a plan to buy back $24.5 billion of stock. Please explain how the company made the decision to use these funds for shareholder returns ahead of other uses, such as increasing consumer remedies or investing in improving internal investigations and controls. How much is Wells Fargo currently investing or planning to invest in improving internal controls and consumer protection?
  • At this moment, can Wells Fargo say with confidence that it has identified and disclosed all incidents of consumer harm across all of its business units? If not, why not?
  • Should we conclude from the steady stream of news of consumer harm at Wells Fargo that the bank is too big to have meaningful internal controls or policies to prevent violations of law and consumer abuses?

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It has been brought to my attention that a mass email has been sent using private and proprietary email addresses owned by myself, LivingLies and related entities. The illegal act is part of an overall scheme making false accusations against myself, LivingLies, and another attorney. The offending email is from a volunteer for LivingLies who had access up until early this year.  During that time she apparently gained access and downloaded lists of email addresses from several different personal and proprietary email accounts; she is now using it to promote her own site, by making disparaging, false and misleading accusations obviously for her own profit.

The obvious intent shown in the offending email is to cause harm and to extort a nuisance settlement. The email accounts that were hacked are now either closed or protected by highly secured means.

A letter has been sent to her demanding retraction and making demands that she and her husband cease and desist from making such defamatory accusations. Investigators are now determining where she and her husband can be served with a complaint for injunction and damages. NOTE: She may also have some phone numbers in which she is making or accepting calls in which she is most likely continuing her scheme by making libelous statements.

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Should anyone wish to write to us about this breach please send an email to neilfgarfield@hotmail.com.

 

 

 

TONIGHT! Unclean Hands: Dirty tactics by Wells Fargo and others coming back to haunt them? — Neil Garfield Show!!

When the other side is playing hardball with dirty tricks, perjury and fraud, what do you do?

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In the December 2017 Florida judicial foreclosure case of Wells Fargo Bank v. Riley, Court holds after trial that Defendant homeowner prevails and keeps his home due to three legal theories, the first and paramount one that the Plaintiff Wells Fargo on behalf of a Chase Trust, had unclean hands for through a key witness dissembling at trial (and failing to prove) that the ‘Chase Trust’ had possession of the original Mortgage Loan Schedule (MLS) at issue in the case.

As the opinion after trial noted, “even if Plaintiff had standing to foreclose (a meritorious claim), Plaintiff would be denied the equitable relief of foreclosure upon a finding that Plaintiff took action in pursuing this foreclosure that reasonable and honest men would condemn.”

Now to see this principle of unclean hands applied in California and other non-judicial case lawsuits on behalf of homeowner Plaintiffs….

Spoiler alert: There is no Mortgage Loan Schedule except when it needs to be fabricated. If it were otherwise the banks wouldn’t be able to trade loans and derivatives in their own names, thus depriving investors of profits that are rightfully theirs.

My own take is that dirty hands only comes out for real at trial. Therefore it is up to the homeowner’s attorney to eviscerate the robowitness who knows nothing except what was on the script he/she memorized. Key words: Timely objections and Cross examination. If you don’t know how to do that, stay out of the courtroom.

Join attorney Charles Marshall and investigator Bill Paatalo, each of whom has examined these issued closely. PERSISTENCE COUNTS!

see Wells Fargo admits to falsely foreclosing on hundreds!

Terms of Art: Assignment or Endorsement?

Lawyers, judges and homeowners are using different terms interchangeably thus muddying up the argument or ruling. An assignment refers to a mortgage whereas an   endorsement (“indorsement” in legalese) refers to a note. The rules regarding enforcement of a mortgage are different than the enforcement of a note.

Let us help you plan your foreclosure defense strategy, discovery requests and defense narrative: 202-838-6345. Ask for a Consult

PLEASE FILL OUT AND SUBMIT OUR FREE REGISTRATION FORMWITHOUT ANY OBLIGATION. OUR PRIVACY POLICY IS THAT WE DON’T USE THE FORM EXCEPT TO SPEAK WITH YOU OR PERFORM WORK FOR YOU. THE INFORMATION ON THE FORMS ARE NOT SOLD NOR LICENSED IN ANY MANNER, SHAPE OR FORM. NO EXCEPTIONS.

Get a Consult and TEAR (Title & Encumbrances Analysis and & Report) 202-838-6345. The TEAR replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).

THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.

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I want to point out the difference between assignment and endorsement. Because judges often defer to bank lawyers to explain the law, there is some confusion there. Often the point is that there was no valid purported assignment of the mortgage and there was no valid endorsement of the note. The argument has great significance particularly in view of the use of sham conduints at the initial “closing,” where the disclosed “ledner” is a misrepresentation, thus preventing the doctrine of merger in which the debt is merged with the note.
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By law, notes are not assigned. They are endorsed if a transfer occurs. Like a check the endorsement must be on the face of the instrument (like the back of the check), or if there is no room because of prior endorsements then an allonge must be permanently affixed to the note containing the endorsement. A separate paper is not an allonge, by definition.
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Keep in mind that the note is not the debt and the debt is not the note. The note can be (a) evidence of the debt or (b) merged with the debt (to prevent double liability only if the payee on the note is the same as the lender. The only exception to this is if the payee was acting as a disclosed agent for the lender. The debt exists regardless of whether there is paperwork. The note might exist but it might be invalid depending upon whether it memorializes a real transaction between the parties on the note.
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In practice in the typical “closing” the borrower signs the note and mortgage before he receives the alleged loan. Neither one should be released, much less recorded, by the closing agent unless and until the borrower receives the funds or money is actually paid on the borrower’s behalf by the Payee on the note. When it comes to purported transfer of these residential “loans,” low level employees are not given powers over tens of millions of dollars worth of loans in banking custom and practice.
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The biggest point I wish to make here is that the assignor and assignee of a mortgage must exist legally and actually. Similarly the endorser and endorsee of a note must exist. An apparently valid assignment or endorsement to a party who did not purchase the debt can result in two things: (a) the assignment of mortgage is not valid because it failed to transfer the debt and/or (b) the failure of the assignment to transfer the debt may be fairly construed as failing to place the subject loan in trust. Without the trust owning the debt (as evidenced by a real transaction in which the debt was purchased from a party who owned the debt), the trust does not exist as to the subject loan nor does it exist at all if that was the practice with respect to all alleged loans for which there was a transfer on paper that did not memorialize real life events.
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Three endorsements:
Dated special endorsement to a particular party. This will be treated a presumptively valid. But the presumption can be rebutted — if the endorser (“indorser” in legalese) did not own the note or otherwise have the right to act as agent for a party who did own the note. This is the point of our TERA — to expose the fact that the paper is self generated and self serving and fabricated by revealing the one simple fact that the party who executed the endorsement was an actual or fictitious individual who was probably a robo-signor on behalf of an entity that did not own the note nor have the power to assign.
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Undated special endorsement to a particular party. If it is undated, it is probably fabricated because custom and practice in the industry does not treat mortgage loans the same as they treat checks. When dealing with high ticket items a special endorsement that is dated would (a) ordinarily accompany an assignment of mortgage (often abandoned by the foreclosing party) and (b) MUST be accompanied by acquisition for value — i.e., purchase of the debt. Ordinarily there would also be correspondence and written agreements concerning the sale of the note and mortgage. Those are issues for discovery.
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Dated or undated blank endorsement — bearer paper. As stated above, big ticket items usually are not generally transferred by blank endorsements, assuming the paper is actually “negotiable.” Hence if it is bearer paper (no person identified as the endorsee) this is likely a fabricated, backdated document, if it is dated, or just a blanket self serving document that consists of a misrepresentation to the court. Note that most provisions in a PSA (Pooling and Servicing Agreement, also referred to as the “trust instrument”) state specifically that (a) the “trust” is organized to be a REMIC vehicle which means there is a 90 day window in which they can acquire loans (the cutoff period) and (b) the assignments must be in recordable form and (c) the endorsements must be valid. Otherwise, the apparent transfer cannot be accepted by the Trust under REMIC rules (see Internal Revenue Code 26 U.S. Code § 860D – REMIC defined), under the powers of the Trustee (virtually nonexistent in most REMIC Trusts), and under New York Law which almost always invoked as the  State in which the Trust is organized. New York Law states that any act that contravenes the powers expressed in the Trust instrument are void, not voidable. So a transfer after the cutoff date is void, as it would ruin the REMIC status under the IRC and violate the specific provisions of the Trust designed to invoke the REMIC rules.

Wells Fargo Bank: Fraud or “Error”

This was no mistake. It is one of many ploys to make modification unlikely or impossible. WFB wants foreclosures not modifications. That way they get to steal from investors, steal from homeowners and get away with it!

Once again, WFB is caught cheating homeowners, producing needless foreclosures (using the so-called “modification” process), leaving the homeowners in the dirt with an offer of $20,000 to settle the claims of fraudulent foreclosures.

Even though they claim the “error” existed — adding the attorney fees to the amount supposedly due — they knew three years ago and did nothing to  make the homeowners whole.

And this is a company that gets the benefit of the doubt when their lawyers proffer “documents” (i.e., fabrications) to the court seeking legal presumptions of validity.

The court is empowered to tell them they have no such presumptions and to prove the truth of the matters asserted. It’s time they did so.

see Wells Fargo Admits 400 Wrongful Foreclosures

Beware of the new lending bubble

What is clear to me is that nothing has changed except the government complicity in predatory lending practices is increasing despite the passage of Dodd Frank. A fact that keeps getting buried here is that Federal Law (Truth in Lending Act) puts the burden of determining affordability of an alleged loan product on the lender, not the borrower. That is the whole point of the Act — to avoid mistakes that borrowers might make with sales pitches that will result in financial ruin for borrowers and extreme wealth for underwriters on Wall Street.

When you see “CashCall” offering loans to people who have a FICO score of 585, we all should ask “how can they make money on alleged loans that are going to fail.” Legally the question becomes one that scares the hell out of the banks: having given a loan to someone who needed their help in making the down payment and who have a bad credit history, is the defense to the foreclosure action properly stated if “assumption of risk” or some other related defense is asserted?

The additional question is who is putting up the money for national advertisements on TV, radio and written media to get as many people as possible to take a loan they cannot pay. This is especially true when an alleged adjustable rate mortgage is involved with negative amortization and a teaser payment.

If the burden of affordability is on the lender and not the borrower and the loan resets to a payment higher than the entire household income the outcome is guaranteed to produce a “loss” that will be covered by multiple levels of derivative and hedge products that will turn the loss into a windfall for the intermediaries.

The effect of the foreclosure is that it rubber stamps plainly illegal behavior. The good faith estimate is completely  fictitious. The term of the loan is not 30 years; it is 3 years or whenever the loan resets. That means whatever fees are amortized over the life of the loan should be amortized over 3 years, not 30. So the cost of credit is falsely stated.

And of course the primary directive of TILA that the lender be disclosed is being completely overlooked. CashCall is not lending the money in the sense that they have no risk of loss. The value of the loan to CashCall must be in the fees it receives for acting as a sham conduit.

I also doubt if the promissory notes executed by borrowers in such a situation are negotiable instruments, especially when you consider the possibility of TILA rescission, which is a condition not stated on the face of the note.Shows how securitization worked. Partially correct. BEST IN CLASS

I give the following video a 90%+ rating. It doesn’t cover the sham conduit originator but otherwise it appears totally correct.

Shows how securitization worked. Partially correct. BEST IN CLASS

Check this out:

No Savings? No Problem. These Companies Are Helping Home Buyers With Down Payments
The Wall Street Journal

Lenders are coming up with novel ways for buyers to cobble together down payments. Read the full story

The Chronology of TILA Rescission

SIMPLE LOGIC, NO DEBATE

I said it before and the Supreme Court said I was right. I said it again and the Supreme Court will again issue a ruling that conforms with my statements about TILA Rescission. The longer the rebellion (by the courts) goes on, the more title, rights, obligations and certainty will be undermined.

It’s not up for debate, which many people have tried to promote. The statute is clear and the Jesinoski decision drills home the point — the chronology of TILA rescission starts with delivery or mailing the notice of cancelation. It is THEN that rescission is effective by operation of law. It is a “done deal.”

This is NOT an “interpretation” or “theory”. I am only quoting the final decision from the Supreme Court that makes final decisions that may not be appealed.  And the reason why SCOTUS was unanimous 9-0, Justice SCalia said, is that the statute could not be more clear and unambiguous. 

All other arguments are policy arguments that should be taken up with the legislative branch of government. The debate is over. Any contrary ruling, motion, decision or judgment is void. A new Supreme Court ruling is expected in which it considers what to do with lower courts that refuse to follow orders from their boss (SCOTUS).

The legal effect is that the loan agreement is over and the note and mortgage are void. The debt survives but (1) is now conditioned on compliance with the lender’s obligations under the statutory scheme that replaced the loan agreement and (2) enforcement in all events is barred by the one year statute of limitations even if  the lender did comply with the statute.

In some states the statute of limitations extinguishes the debt. In others it must be raised as an affirmative defense and is subject to possible renewal as with payments made after the SOL expires.

Let us help you plan your TILA rescission strategy, discovery requests and defense narrative: 202-838-6345. Ask for a Consult

PLEASE FILL OUT AND SUBMIT OUR FREE REGISTRATION FORM WITHOUT ANY OBLIGATION. OUR PRIVACY POLICY IS THAT WE DON’T USE THE FORM EXCEPT TO SPEAK WITH YOU OR PERFORM WORK ORDERED BY YOU. THE INFORMATION ON THE FORMS IS NOT SOLD NOR LICENSED IN ANY MANNER, SHAPE OR FORM. NO EXCEPTIONS.

Get a Consult and TERA (Title & Encumbrances Analysis and & Report) 202-838-6345. The TERA replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).

THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.

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In any TILA rescission brief, I think the emphasis should be on chronology, subject matter jurisdiction and due process. I.e., that rescission removed the note, mortgage and loan agreement from legal consideration and therefore subject matter jurisdiction was lacking thereafter — a point that can be brought up anytime, even on appeal or even later.

  • AND that imposing a remedy based upon void documents violates due process rights of the borrower.
  • AND that any ruling denying the application of TILA rescission is void in the absence of a party with legal standing seeking a remedy (vacating the rescission) asserting (1) legal standing (injury) and (2) grounds upon which the rescission could be vacated.
  • Any contrary ruling (ignoring the TILA rescission) is itself void on both jurisdiction and due process grounds.
The fundamental facts must be clearly stated and must be based upon chronology. The rescission caused the loan agreement, the note and the mortgage to be void by operation of law at the moment of mailing or delivery. That is exactly what the statute says and exactly what Jesinoski says with emphasis on the word “when.”
If that remains true, then it is fundamental error for a trial court or appellate court to treat the loan agreement, note and mortgage to be in existence after receiving notice of the existence of the rescission, whether recorded or not. It therefore follows that it is fundamental error, without jurisdiction and a deprivation of fundamental and natural rights of the borrower to due process if a court grants relief or a remedy based upon the void documents.
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There is no basis for a motion or ruling (from any court other than SCOTUS) that starts with the premise that rescission is effective upon delivery or mailing “IF”. There is no “IF.” There is no “provided.” There is no “However.” There are no conditions other than delivery or mailing.
Everything that attempts to impose conditional statements on the TILA rescission statute is wrong and void. Each such attempt assumes grounds for vacating the rescission have been proven by a party with standing. Due process requires the party who is directly injured by the “wrongful” rescission to initiate a lawsuit that begins with legal standing, asserts the rescission is effective, and the grounds for why the rescission notice should be vacated.
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