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RECOMMENDED READING:

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

California’s New Gieseke Decision-A New Playing Field Emerges Post-Yvanova

 

Charles Marshallby Charles Marshall, Esquire

Gieseke Remand Order 5 20 16 from 9th Circuit

THE FOLLOWING ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
On the heels of Sciarratta v. US Bank, in the wake of Keshtgar v. US Bank, under the umbrella of Yvanova v. New Century Mortgage, comes now a unifying decision which applies at a base level at least these California Supreme Court and appellate decisions to the non-judicial firmament throughout the Greater West, that of Gieseke v. Bank of America.

Gieseke is a 9th Circuit decision, thus making itself persuasive if not controlling law in California and 9th Circuit states outside California, including Oregon, Washington, Montana, Idaho, Nevada, Arizona, Alaska, and Hawaii. While it is not mandatory for 9th Circuit Fed Courts in these states to follow Gieseke, due to the causes of action at issue being primarily state-based property claims as opposed to Fed-based claims, the persuasive authority of Gieseke will doubtless be useful and may prove to be compelling in many a future non-judicial foreclosure case in which the ‘borrower’ (never concede even, nay especially, fundamental terms in case pleading) is the Plaintiff.

It is also important to keep in mind that Federal authority is not controlling in a state litigation matter. Nevertheless, the persuasiveness of Fed to State and State to Fed authority must be acknowledged and understood among foreclosure litigants.

One of the reasons Glaski v. Bank of America failed largely to get traction until revived by Yvanova, is that even though it was controlling authority in the 5th Appellate District of California, and very much persuasive authority elsewhere in California, California’s Fed Courts tamped this brave and groundbreaking decision down from an oak to a stump, in a matter of months, following its publication in August of 2013.

Now with Gieseke, the entire 9th Circuit has greatly amplified the already-dramatic impact of Yvanova and its progeny Keshtgar and Sciarratta. Indeed, the way the Gieseke decision came to be is an event of great moment for this long-time foreclosure warrior-attorney. The underlying Gieseke case, which I had filed in the Northern District of California Fed Court on behalf of my clients back in late 2013, and appealed many months ago, was set for oral argument on July 5, 2016 before the 9th Circuit.

The Clerk of the 9th Circuit Court issued an order-to-show-cause (OTS) on May 2, 2016 with the breathtaking directive to the institutional defendants in the case, including Bank of America, to wit: why shouldn’t we the 9th Circuit simply remand this case summarily, in light of the Yvanova decision.

The institutional defendants had their best appellate firm at the ready, Severson Werson, and put forward a shallow but superficially credible case. I ‘marshalled’ (you’ll forgive the pun) my extensive network of resources, putting forward my considerably more credible Neil Garfield-inspired and ready arguments, and awaited the decision which just came down May 20: Gieseke Appellants win summarily, without even having to go to oral argument, which hearing was vacated upon the remand of the case to District Court, where it is to be reconsidered in light of Yvanova and Keshtgar.

Keep in mind that while Yvanova and Sciarratta are both post-auction cases, Keshtgar, and now Gieseke, are pre-auction, post-NOD cases. Which means at this point in California, through the California Supreme Court and now the 9th Circuit, all post-NOD lawsuits will have at least persuasive authority battering the opposition from the moment of filing. Strategically for once, Californians litigating non-judicial foreclosure matters have real options in choosing venue.

Where the focus of a case is directed to wrongful foreclosure and quiet title, state courts may be the better venue, since Yvanova and Keshtgar are controlling authority in all State Courts at this point. On the other hand, where rescission is an important cause of action in a compliant, a Federal venue using Gieseke for non-rescission state-based claims litigated in the same Federal venue may be the best way to frame a case.

Remember, Federal authority is persuasive, not mandatory, when applied to state claims. On the other hand, the breakthrough case of Jesinoski v. Countrywide Home Loans is controlling authority throughout the US on the issue of rescission (always a Fed-based issue vis a vis the TILA Federal law), as the decision came out of the US Supreme Court.

One might reasonably anticipate at this juncture to wonder what might one expect in light of the above cases, in trying to move a given plaintiff’s foreclosure case forward. Here follows a primer: For starters, from case inception, when facing a sale date, TROs will be much more readily granted. Be mindful that the standard applied to granting a preliminary or permanent restraining order, and derivatively a TRO, is whether the movant for an injunction is likely to prevail on the merits in the litigation at issue.

Before Yvanova, getting TROs in foreclosure-related matters was fraught with difficulty, though still doable in a number of cases, depending upon the district, the court, etc, although winning the preliminary injunction hearing to follow was another matter typically. With Keshtgar and Gieseke (pre-auction holdings), a TRO and preliminary injunction movant is likely to find getting the relief requested is much more straightforward and readily available. Also take note that TROs and their kindred hearings are much more easily brought, procedurally, in state courts, as opposed to Federal courts, at least in California.

As a still-relatively new lawsuit moves forward in the new dispensation of our post-Yvanova foreclosure world, plaintiffs will likely face as before, a surfeit of demurrer filings from the usual-suspect institutional servicers and sales trustees, such as Chase and Quality Loan Service Corp. Do not be feint of heart. New playing field, to which our opposition will have trouble adjusting much more than our side will. The new field largely benefits us, and will doubtless delimit and one hopes eventually demoralize our opposition. Can’t wait for the role reversal.

If California courts, state or Federal, are working properly, demurrers in this new litigation climate should routinely be overruled where the proper causes of action are pled, such as wrongful foreclosure, various Homeowner Bill of Rights statutory sections such as California Civil Code 2924.17 and 2923.55, and quiet title—this latter cause of action I believe will see a great revival with our side finally getting standing to present our arguments.

Equally important in this new terrain, is of course to plead void not voidable, when it comes to addressing the broken chain of assignments, the front-dating, back-dating, and robo-signing associated with same assignments.

Expect to see many motions for summary judgment, and the occasional judgment on the pleadings, from our not-so-friendly and often ruthless defendants, who will resort to these at present little-used devices to try and get out of a case they are no longer able to exit via a demurrer.

So yes, be heartened as a plaintiff when you see the opposition file an Answer as opposed to a demurrer (State level) or motion to dismiss (Fed). Do be cautious though, as a motion for summary judgment may soon follow.

Which brings us to discovery: This aspect of our litigation will grow dramatically, as our cases move to trial, instead of being snuffed in a proverbial litigation crib. More about the useful tool of discovery in a future blog post. Also on deck for a future blog post: Trial practice in our foreclosure cases, and appellate practice.

____________________________________________________________

California-licensed attorney Charles T. Marshall (CA Bar # 176091) earned his Juris Doctorate in 1992 from the University of San Diego School of Law. His practice includes Foreclosure Relief, Civil Litigation, Bankruptcy, Immigration, Estate Planning and all facets of Personal Financial Management.

Charles Marshall can be contacted at:

415 Laurel Street, Suite 405 San Diego CA 92101 US
+1.530.888.9600
Charles@MarshallLawCa.com

Website:  http://www.marshalllawca.com/home.html

 

 

Run for Office and get a Mortgage Release from Wells Fargo

miss

by William Hudson

While reading the Housing Wire today, something caught my eye.  Black Knight Financial Services reported that in Mississippi 11% of all homeowners are behind on their mortgages.  And then I remembered reading about a newly elected mayor in Jacksonville, Mississippi who claimed that Wells Fargo zeroed out his mortgage on the day he was elected.  I’m not sure if there is any connection- but could it be that our elected officials are receiving financial “incentives” (like principal forgiveness) from the banks?

 

Wells Fargo allegedly paid off new Jackson, Mississippi mayor Tony Yarber’s outstanding mortgage balance that was in default.  In fact, Yarber states he had not made a payment since November.  On the same day he was elected to office he received a letter from Wells Fargo stating that Wells Fargo had authorized the release of the remaining lien on his home in the amount of $91,621.94, on April 22, 2014. “Essentially, they wrote it off,” Yarber said.  “Wells Fargo said don’t worry about sending no more money,” he said to local reporter Anna Wolfe.

Yarber, a pastor, previously delivered a sermon declaring the lien extinguished, mentioning being part of the “very unfortunate real estate swindle of the early 2000s.”  Apparently if you have a little political clout and pray, God (and Wells Fargo) will answer your prayers and erase your mortgage.  The “Election is over. We trusted God. Y’all talked all that noise,” Yarber said in his sermon. “And while they was running their mouth, a letter came in the mail from Wells Fargo. The letter said, ‘Dear Mr. Yarber, concerning loan number whatever it was, at 1605 whatever street you stay on, we have no more interest in that property. Consider the $92,000 that you owe us washed away.’”  It is likely that this is not an isolated event-whereas most politicians know to keep quiet,  Wells Fargo simply had the misfortune of writing off the mortgage of a man who felt compelled to publicly thank God for this wondrous act.

The letter from Wells Fargo stated that “due to inactivity of the above mortgage account, we are releasing the lien on your first mortgage with us.”

“This means we will forgive the unpaid principal balance on your first mortgage loan and release you from any obligation to make payments on the loan now or in the future,” the letter states.

In 2007, Yarber took out a 40-year, $92,872.48 mortgage on his south Jackson home. On May 16, 2014, 22 days after taking office, the lien release was recorded in Chancery Court.

If Wells Fargo is writing down mortgages for Political Gain- I encourage Living Lies readers to go down to your local county records offices and examine the mortgage documents of your elected leaders and officials.    Wells Fargo has failed to officially comment but said the release was not part of the national mortgage settlement (and likely consulted with their tall-tower attorneys once the story broke).

 

http://www.clarionledger.com/story/news/local/2016/05/21/jackson-mayors-mortgage-vanishes-after-election/83615172/

Foreclosure Fraud Is Supposed to Be a Thing of the Past, But It Happens Every Day

 

old-mortgage-deed-7611736.jpgBy David Dayen

https://theintercept.com/2016/05/18/foreclosure-fraud-is-supposed-to-be-a-thing-of-the-past-but-it-happens-every-day/

Every day in America, people continue to be kicked out of their homes based on false documents. The settlements over allegations of robosigning, faulty paperwork, and illegal mortgage servicing didn’t end the misconduct. And law enforcement, along with most judges and politicians, have looked away in the mistaken belief that they wrapped up a scandal that just goes on and on.

My new book, Chain of Title: How Three Ordinary Americans Uncovered Wall Street’s Great Foreclosure Fraud, is about three foreclosure victims who ended up doing more investigation of the corrupt U.S. mortgage industry than any state or federal law enforcement or regulatory official.

They exposed the mass production of false mortgage documents in courthouses and county records offices across the country.

It’s a work of history, depicting events that occurred from 2009 to 2012. But it’s a living history, and that’s one of the reasons I wrote the book.

Here at The Intercept, in the past 10 months, I’ve written about the New Jersey man who had precious family heirlooms robbed by Wells Fargo subcontractors when they illegally “trashed out” his foreclosed home. I’ve written about the use of false documents in Seattle and the unregistered business trusts operating in Montana. I’ve written about the Texas jury that awarded $5 million in one wrongful foreclosure case with fabricated and robosigned documents. I’ve written about the California Supreme Court enabling foreclosure victims to challenge phony documents in their cases.

That’s just a small sampling of what I hear nearly every day from homeowners who continue to challenge their cases and reveal massive fraud. And these are a few more:

  • Here’s a document dated August 4, 2010. It’s an assignment of a deed of trust from the originator, American Brokers Conduit, to Wells Fargo. It was not only digitally signed, but it was digitally notarized. So the computer appeared personally before the other computer, I guess, to verify that this was the authentic computer that signed the document.

Continue at the Intercept…..https://theintercept.com/2016/05/18/foreclosure-fraud-is-supposed-to-be-a-thing-of-the-past-but-it-happens-every-day/

see also https://livinglies.wordpress.com/2016/05/23/disinformation-against-democratic-principles/

 

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Disinformation against Democratic Principles

In a perverse way many if not most borrowers lost everything in 4 ways — their home, their retirement money that was used to fund the loans, their savings that was used to try to save the home and their jobs when upon the largest loss of household wealth in history the economy tanked. It didn’t help that corporations were able to strangle workers into giving up their economic freedom and hard won rights with the threat of shipping their jobs overseas, only to lose their jobs anyway.

The closer one gets to the target the more flack is fired at you. Lately there have been posts on my blog obviously written by lawyers or trolls for the banks.   Their intent is to undermine all the arguments against the current judicial and regulatory policy of allowing the banks to run wild and then to reward them for their obvious misbehavior. My answer is that in a nation of laws, such policies take us away from democratic principles and away from due process, accountability and punishment for those who break our laws and those who manipulate the economic marketplace to their own exclusive advantage.

 

The bank arguments are stale by now. The “free house” myth is just that — a fictional account of what never was true. Out of the thousands of homeowners who have won cases against the banks, none of them received or wanted a free house. Practically all of them wanted a modification — i.e., a correction to economic reality that would preserve value on both sides of the equation (source of funds at risk and homeowner).

 

We continue to see every effort to force all cases into foreclosure and to prevent modifications where a workout would be desirable for both creditor and debtor. The modification process is aimed at either getting a foreclosure or an “in-house” modification. Either way the Master Servicer (for a Trust that doesn’t exist and does not own the loan) gets to keep the proceeds and the investor gets nothing or next to nothing.

 

The problem remains that the so-called servicers are not serving the interests of the creditor side of the equation. They are clearly serving the interest of Wall Street in search of greater profits to be made on the heels of the windfall that Wall Street received in the run up to the mortgage meltdown. These “commentators” are ignoring the fact that there was a mortgage meltdown and they are insisting that the false appraisals, high prices and the recession caused by the banks should be and must be the exclusive burden of homeowners and that the interests of the banks are more important than our vanishing middle class. Fabrication, forgery, robo-signing, and robo-witnesses simply don’t count as long as the banks win. That bears little resemblance to law. It is the wild wild west.

 

These comments even reference “borrower crookedness.” In order to believe that one would have to to believe that tens of millions of Americans had a secret meeting in which they decided to fleece institutional investors, even if those investors were using the pension money for the same people who were at that mythological meeting. They seek to characterize borrowers as deadbeats as though they wanted to default — rather than homeowners who had paid substantial money for down payment and improvements and monthly payments and who were ensnared in multiple ways including most notably a spike in housing prices that was unprecedented and obviously not caused by increased demand for housing resulting from increasing population.

 

The banks made up stories about how people were selling their homes in California where prices were even more absurdly high and then buying equivalent homes elsewhere for the half the price at which they had sold their California home. All kinds of stories were circulated by the banks to justify the total disruption of 120 years worth of housing data as recorded by the Case-Schiller Index.

Let’s get it straight. The run up in prices was the direct result of the banks flooding the marketplace with ill-gotten money and selling short-term payments to borrowers making the price of the house and the principal of the loan seem irrelevant. While most closings had a Good Faith Estimate, the disclosures failed to show that many loans would shortly reset to payments that were simply and obviously out of reach, often going above the entire household income of the borrower.

Teaser payments and pick-a-payment loans were sold as if they were the best thing since sliced bread. But the disclosures failed to reveal the peril in those loans for both the investors who put up the cash and the borrowers who signed up for a loan.

Those deals were guaranteed to fail and inadequate disclosure obscured the fact that the loan, the deal, and the ownership and possession of the house would be over in a few short years or even months. A reset to a monthly payment that was known to be more than the entire household income was guaranteed to bring an end to a fraudulent deal.

 

In other words, the banks knew the loan would fail shortly and the borrower didn’t. The banks wanted the loan to fail and the borrower didn’t. The banks were protected in this epic fraudulent scheme and the borrower and the investors were left out in the cold. And now to add insult to injury they are lobbying on my website for a continuation of fraudulent schemes and behavior. The banks stole the money from investors and they stole the identity of the borrower using the borrower’s signature in ways they could not imagine — on documents that later turn out to be fabricated, when put to the test.

 

These commentators point to the failure of a recent case in which I was the attorney of record and dozens of other cases where the courts have uniformly rejected pre-emptive lawsuits demanding the identity of the creditor (the bedrock of lending laws). From the beginning I have taken a long view of this entire process and what will be a decades long process of unwinding the great recession that continues to afflict most ordinary citizens.

 

I was dead right about the construction of the TILA rescission statute as enunciated by the unanimous Supreme Court in Jesinoski. Up to that point in time (January, 2015) virtually every trial court, state and federal and every appellate court, state and federal expressly stated that my “interpretation” was wrong. You can’t have rescission without a lawsuit. You can’t rescind without tender or at least proof of tender. My reply was simply that wasn’t what the statute said and that a specific statutory remedy doesn’t remove common law rescission but that the two cannot be combined.

 

It took ten years for the Jesinoski decision to settle that issue and yet we continue to have courts rebelling against the procedure of TILA rescission which again I say is wrong. But the commentators continue to say that the incorrect judicial decisions are proof that those decisions were right — just like before the Jesinoski decision. It may take many years again for the issue to get slapped down again by the Supreme court who was already dripping with sarcasm in its Jesinoski decision, wondering how or why any Judge could think it could rewrite the statute that was perfectly clear on its face.

 

The biggest recent attack is meant to undermine confidence in the Yvanova decision. The banks are scared of rescission because they are on the losing side of the battle, as it will turn out in the long run, and they are on the losing side of using void, forged and fabricated paperwork as that will turn out in the short-run. Judges are becoming more wary of signing an order based upon an obviously false premise than they are about rebelling against the TILA rescission statute. It is plain as day to me that the judiciary is slowly turning over a new leaf.

 

And while preemptive lawsuits are being struck down, despite clear statutory rights to the information demanded, eventually that will also come into line. How do I know that? It’s simple: it has never been the law that a borrower could not learn the identity of the creditor. The fact that the banks cannot identify such a creditor without going to jail  should never have been a burden placed upon homeowners and consumers.

 

Lastly, there is the “argument” about the UCC. What these commentators deftly avoid is that the ONLY way a possessor can enforce those actual or fabricated documents is by virtue of legal presumptions without being required to prove facts that simply do not exist. Those legal presumptions are rebuttable. And they don’t even apply if there are indications that the document lacks trustworthiness or credibility. They argue that it doesn’t matter if the document is based upon a nonexistent transaction so long as the possessor has “rights to enforce.” And rounding out their circular argument they say that the mere assertion of rights to enforce is sufficient to presume that those rights exist — and that is the end of the matter. Thus they are arguing through legal presumptions that they should be treated as holders in due course even though they never asserted that status.
What has been incorrectly but nonetheless successfully argued before courts across the country is that the self-serving document presented is evidence enough of its trustworthiness. It doesn’t work that way in virtually all other areas of law. It is simple logic: contemporaneously with a real transaction in which consideration is exchanged reciprocally the transaction is memorialized in a written instrument — that is then used as evidence of the transaction. But if there was no transaction, then the instrument is worthless in most instances.

And that is why the banks never argue they are holders in due course which requires proof of purchase. And that is why discovery is so important to test whether the transaction exists or, as is usually the case, the document was prepared and filed as though the transaction existed. “PETE” is not the legal equivalent of holder in due course and it never was.

In a nation of laws, it is not the law and has never been the law that the banks could foreclose on any note and mortgage regardless of whether or not they had any actual right to do so. This is not radical thinking. It is common sense.

David Dayen: The Epidemic of Mortgage Fraud

http://www.salon.com/2016/05/19/it_is_happening_again_david_dayen_on_the_epidemic_of_mortgage_fraud_and_the_rigged_economy_that_sets_it_in_motion/

“It is happening again”: David Dayen on the epidemic of mortgage fraud and the rigged economy that sets it in motion

David Dayen’s new book explores the criminal conspiracy that destroyed the lives of millions

"It is happening again": David Dayen on the epidemic of mortgage fraud and the rigged economy that sets it in motionDavid Dayen (Credit: The New Press/lumy010 via iStock/Salon)

Earlier this week the New York Times featured a depressing story about homeless people living in the foreclosed and abandoned houses that still dot the landscape in Nevada, reminding everyone of that awful time just a few years ago when families all over the country lost their homes in what has become euphemistically known as “the housing crisis.” It was actually much more specific than that, it was an epidemic of criminal mortgage fraud and it devastated millions of people, many of whom have still not recovered.

My Salon colleague (and one-time blogging cohort) David Dayen has written a wonderful new book called “Chain of Title” about some amazing Americans down in Florida who were caught in the maw of this epic criminal conspiracy and bravely took on the system when no one else would do it. Faced with a morass of impenetrable documents and intractable officials they took matters into their own hands and uncovered the crime of the new century by becoming internet muckrakers, using crowd-sourcing and social media. And in the process of following their fascinating story, we learn the full scope of this massive crime which goes all the way from the Florida suburbs to the boardrooms of Wall Street.

For David’s Interview please go to Salon.com.

 

Reminder: Only Banks are Allowed to Alter Evidence

By William Hudson

Banks have used fabricated documents and forged signatures over the past decade to foreclose on homes they don’t own while law enforcement and the courts have intentionally looked the other way. However, attorney Constantine “Chuck” Kalogianis is now in trouble because he has been accused of resorting to the same tactics by altering documents in at least five Pasco County mortgage foreclosure cases in which he represented delinquent borrowers.

 
Claims of evidence tampering have been filed in a 258-page motion filed in Pasco Circuit Court this week by Bayview Loan Servicing seeking to foreclose on one of Kalogianis’ clients.  The motion focuses on Kalogianis who the plaintiff believes was the only one with the means and motive to alter records and make it appear that the companies starting the foreclosure actions didn’t have legal standing to do so.

 
The goal, the motion says, was to make it impossible for Bayview to foreclose on Kalogianis’ clients.  In one case, a judge initially ruled in his favor and ordered a bank to pay him $170,000 in legal fees. It will be interesting if Kalogianis goes after Bayview Loan Servicing that handles loan servicing for Bank of America and other pretend lenders. Bayview has the audacity to state, “There is something terribly wrong with repeatedly tampering with and defacing evidence entrusted to the Clerk of Court in order to do so.” EXACTLY! So why should tampering with evidence be illegal ONLY if you aren’t a large banking institution like Ocwen, Nationwide, Wells Fargo, Citibank, or JPMorganChase?

 
Kalogianis is a well-known Pasco attorney and former Congressional candidate and according to the Tampa Bay Times, said that the bank lacked the original document it needed to foreclose and was trying to “turn the tables” on him rather than lose the case. “It is the plaintiff’s own improper conduct . . . that should be reviewed,” when asked about the accusations.

 
The case against Kalogianis is one of the first in which a lawyer representing borrowers has been accused of altering records. It is interesting that millions of foreclosures have been filed by using fabricated and forged documents with impunity, and that ONE attorney is now being accused of the same crime. Kalogianis can rest assured that an audit of Bayview’s foreclosure filings will likely find hundreds (if not more) fraudulent documents filed by the banks in which they service.

 
Ft. Lauderdale attorney Neil Garfield has often wondered when an attorney or homeowner would resort to the same tactics as the big banks to create further confusion in the court room. Since there isn’t any legitimate paperwork in regards to most foreclosures, homeowners and their counsel could easily fabricate notes and letters to also create prima facie evidence.

 

Garfield  stated that, “If creating the appearance of standing takes no more than a printer and computer program to create the illusion of standing…….why wouldn’t consumers be inclined to resort to the same illegal and unfair tactics that the banks have settled on if they know there will be no enforcement of the crime?”  Garfield reiterates again that the ONLY way to REVEAL the TRUTH of ownership is for the servicer’s business records to be revealed through Discovery demands.  It is much more difficult (but not impossible) to forge or recreate business records (wiring instructions, where funds are forwarded, etc…).

 

In cases defended by Kalogianis, the companies seeking to foreclose said they filed promissory notes with blank endorsements. However, at some point, the motion says, the notes in four of the cases were altered to show they had been endorsed by “Bank of New York, as trustee.”  But there is literally no way to prove who did this without a witness or surveillance.

 

In the fifth case, a blank endorsement was altered to show Wells Fargo had signed it, the motion says. This may be a new tactic by the banks to create such uncertainty in regards to who is doing the fabricating and forging,  that it will be almost impossible to ascertain who is telling the truth. This type of scenario is exactly what Neil Garfield worried would one day manifest- a recording system of transfers so convoluted and full of fraud that no court on earth would be able to clarify what happened “when and to who”.  It appears that the general public (and the criminal element) have began to recognize that a credibility loophole exists- and people may begin forging paperwork to “tell the story they want told” as Garfield predicted.

 
Now that you can’t rely on what the bank says, what the country records say, what the homeowner says, or what the attorneys say- it appears that there may be a problem that cannot be solved without executive or legislative intervention.

 
Loan servicer BAC, lost its case against a client of Kalogianis in 2014 when Kalogianis argued at trial that only the Bank of New York could foreclose because it was the one that had endorsed the promissory note. (The case has since been reopened.)  Since there are no lie detector tests that can be administered, no videos, no confessions, DNA or fingerprint evidence to prove who did what to the mortgage notes, the motion says that “the potential perpetrators . . . become more and more limited as opportunity and motive are examined.” Really? That sounds like a reference to the servicers!  Although possible- most attorneys would be unwilling to risk their law licenses to win a client’s case. The risk/benefit ratios don’t appear to be there in this case.  And lets not look at the real issue here- the largest perpetrator to resort to forgery and fraud? The servicers and foreclosure mills.

 
There is no way that any judge or court clerk can make a ruling on documents that are based on illusion. Although it could be said that lawyers for the foreclosing companies can be ruled out because to endorse notes would sabotage their own cases- this may not be true. What better way to pervert justice (or remove a successful homeowner’s attorney by accusing them of fraud) than to “muddy up” the evidence? Banks have demonstrated that they are capable of all types of fraud including larceny, forgery, burglary, illegal trespass and perjury- why not frame an attorney? Could it be that this tactic may be used against other attorneys who dare to take on the big loan servicers?  Attorneys must be vigilant to document that the documents provided by their client’s appear legitimate.

 

The motion singles out Kalogianis as the perpetrator. “This process of elimination could leaves only defendants’ counsel,” the motion says. It seeks a final judgment of foreclosure and attorneys fees in its case against one of Kalogianis’ clients, Nicholas Verrengia. Verrengia has other clients of Kalogianis have praised their attorney and accuse Bayview of the fraud.

 

This is the end result of law enforcement’s refusal to become involved in the early stages of the foreclosure crisis. It is now public knowledge that the country records are perverted and have no remaining credibility. There will be homeowners and attorneys who are as capable of photo-shopping signatures and creating documents out of thin air as the big banks to create enough confusion that a judge simply cannot rule.

 

It is also only a matter of time before the true criminal element in this country resorts to the same tactics of forging documents to convince vulnerable homeowners that they are their “new loan servicers” and begin collecting payments and stealing homes from unsuspecting homeowners. If stealing a home is no more difficult than learning to cut and paste signatures or use a computer system to create the illusion of ownership- the bank’s own tactics are going to cause them issues they never imagined.   If I was Kalogianis, I would employ a forensic document examiner to look at the last 100 foreclosures filed by Bayview and their clients. This could get ugly.

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