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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

Tonight! 6PM EDT Charles Marshall and Bill Paatalo Talk About COURTS THAT DO FOLLOW THE LAW

Thursdays LIVE! Click in to the WEST COAST Neil Garfield Show

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

Today on the West Coast Foreclosure Show we discuss two Plaintiff’s lawsuits where the Courts do the right thing, at least partially. One case, out of Massachusetts, Starkey v. Deutsche Bank National Trust Company, et al., addresses our not-so-good statutory friend the FIRREA framework at issue, as here, in so many cases where ‘assets’ of Washington Mutual were transferred to Chase via the corporate BK of Washington Mutual back in 2008.

Starkey v Deutsche – MA Ct of Appeals

The second case, McManus v. Bank of America, et al., comes out of the Eastern District of California Federal Court, just this month, with a pro se Plaintiff, and potentially revives wrongful foreclosure as a viable cause of action in California.

McManus v Bank of America

https://bpinvestigativeagency.com/lsf9-master-participation-trust-is-a-straw-man-and-heres-some-proof/

MA Appellate Court Tells Chase They Can’t Sit on Two Chairs With One Ass

As Charles Marshall just quoted to me “it’s always refreshing when you find a judge who follows the law.”

Chase can’t say that the Trust owns the loan since 2006 and that the loan was owned by WAMU in 2008. It can’t be both. And it can only be one allegation that survives — the “first sale.”

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

I provide advice and consent to many people and lawyers so they can spot the key required elements of a scam — in and out of court. If you have a deal you want skimmed for red flags order the Consult and fill out the REGISTRATION FORM. A few hundred dollars well spent is worth a lifetime of financial ruin.

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 or 954-451-1230. 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.

===========================

see Starkey v Deutsche – MA Ct of Appeals

The big question is when if ever is Chase, through its lawyers, going to try to prove that the “Trust” exists and now owns the debt, note and mortgage.

Chase knows that WAMU didn’t own the loan because they bankrolled the very same loan that is at issue. But they used OPM (Other People’s Money).

Chase also knows that the OPM nature of the transaction makes the investors the owner of the debt with equitable rights to the mortgage and note.

Chase knows that the trust was written but not created. Nothing was ever entrusted to a trustee to actively manage on behalf of beneficiaries. Investors are not beneficiaries if all they get is a promise from a nonexistent entity (the trust) and they have no right, title or interest to the “underlying loans.”

Chase knows that the so-called underlying loans does NOT include ownership of the debts.

Chase knows that there is no transaction in the history of the world in which the trust purchased any loans.

Chase knows that it never allowed the investor money into the trust.

Chase knows that the named trust has no power even to inquire into the affairs of the “trust.”

Chase knows that it using the trust name as an unregistered fictitious name whereby OPM is converted into Chase assets.

Chase doesn’t care. For the most part homeowners do not fight.

 

 

Does the Debt Need to Transfer with the Mortgage?

The answer is yes but the movement of the debt is often, all too often, presumed to have occurred. After more than a decade of research and analysis I find no support for the informal “doctrine” that the debt, note and mortgage can be used interchangeably. But the human inclination is to treat them the same. In foreclosure defense it is the job of the advocate to establish the separate nature of each of them.

The debt is what arises, regardless of whether it is in writing or not, by virtue of money being paid to the recipient or paid on his/her/their behalf. The only way the debt is extinguished is by payment or a court order (e.g. bankruptcy) declaring that the debt no longer exists. The recipient of the money is the obligor. The party who paid the money is the obligee under the debt. The transaction itself gives rise to the duty to repay the loan. A writing (e.g. note or mortgage or deed of trust) that purports to relate to or memorialize the debt, is separate from the debt.

If the written instrument (note) is made payable to the obligee under the debt, then they both are saying the same thing. That causes the debt and the written instrument (note) to merge. That way the obligor does not subject himself to an additional liability (double liability) when he executes the note. The note is incident to the debt but not the debt itself. The mortgage is incident to the debt and is neither the note nor the debt itself.

The debt is a demand loan if there is no written instrument. The note, where merger has occurred, sets forth the plan of repayment. The mortgage (if merger occurred on the note) sets forth the plan for enforcement of the debt. The mortgage does not set forth the terms of enforcement of the note since the note already contains its own enforcement provisions.

If the debt and the note don’t say the same thing (i.e., if the obligee and the payee are different), the doctrine of merger does not apply. The obligation to repay still exists but not under the terms and conditions of any note nor is it subject to enforcement of the mortgage. The debt (obligation to repay), the note and the mortgage (or deed of trust) can each be transferred; but the transfer of one does not mean the transfer of all three. Transfer of a note or mortgage does not move the debt unless merger has occurred. And transfer of a mortgage without the debt is a nullity.

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

I provide advice and consent to many people and lawyers so they can spot the key required elements of a scam — in and out of court. If you have a deal you want skimmed for red flags order the Consult and fill out the REGISTRATION FORM. A few hundred dollars well spent is worth a lifetime of financial ruin.

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 or 954-451-1230. 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.

===========================

see NY Court: Transfer of a mortgage without transfer of the debt

Common sense is not necessarily the law or policy. Any number of people can enforce a note even if they don’t own the debt and even if they don’t actually have physical possession of the note (although there is a lot of explaining to do).

BUT nobody can enforce a mortgage unless they are the owner of the debt and the owner of the mortgage or the owner of the beneficial interest under a deed of trust. The assignment of a mortgage or DOT cannot, under any circumstances CREATE an interest in the debt by either party. The assignor must own the debt for the assignment to transfer the debt. All states agree that an assignment means nothing if the assignor had nothing to assign. Such an assignment confers no rights on the assignor and the assignee gets nothing even though the “assignment” document physically exists.

BUT a facially valid note is given many presumptions as to enforcement of the note and those presumptions have led courts to erroneously conclude and presume that the enforcer of the note is the owner of the debt.

The only party who is entitled to claim ownership of the debt (obligation) is the one who paid for it. Any party claiming to represent the owner of the debt must show the agency connection between themselves and the owner of the debt. All other “transfer” documents are fabrications.

The only way the “agent” can prove the “agency” is by disclosing the identity of the owner of the debt, who can corroborate the claim of agency — if the party identified can prove ownership of the debt. Self serving statements are not without some value but if the party proffering self serving statements is unable or unwilling to proffer corroborating evidence at trial or in response to discovery, their self serving statements must be given scant weight.

So in the above link the Court summarized the law in the same way that the courts in all states — when pushed — understand the law. Note the huge difference between alleging standing and proving standing. The allegation makes it through a motion to dismiss. Failure of proof of standing results in denial of summary judgment or any judgment.

“A plaintiff in a mortgage foreclosure action establishes its prima facie entitlement to judgment as a matter of law by producing the mortgage, the unpaid note, and evidence of the defendant’s default (see Loancare v Firshing, 130 AD3d 787, 788 [2015]; Wells Fargo Bank, N.A. v Erobobo, 127 AD3d 1176, 1177 [2015]; Wells Fargo Bank, N.A. v DeSouza, 126 AD3d 965 [2015]; Citimortgage, Inc. v Chow Ming Tung, 126 AD3d 841, 842 [2015]; US Bank N.A. v Weinman, 123 AD3d 1108, 1109 [2014]). Where, as here, a defendant challenges the plaintiff’s standing to maintain the action, the plaintiff must also prove its standing as part of its prima facie showing (e.s.)(see HSBC Bank USA, N.A. v Roumiantseva, 130 AD3d 983 [2015]; HSBC Bank USA, N.A. v Baptiste, 128 AD3d 773, 774 [2015]; Plaza Equities, LLC v Lamberti, 118 AD3d 688, 689 [2014]).” LNV Corp. v Francois, 134 AD3d 1071, 1071—72 [2d Dept 2015].

“[A] plaintiff has standing where it is both the holder or assignee of the subject mortgage and the holder or assignee of the underlying note at the time the action is commenced. (Bank of NY v. Silverberg, 86 AD3d 274, 279 [2nd Dept. 2011], U.S. Bank N.A. v. Cange, 96 AD3d 825, [*3]826[2d Dept. 2012]; U.S. Bank, N.A. v. Collymore, 68 AD3d 752-754 [2d 2009]; Countrywide Home Loans, Inc. v. Gress, 68 AD3d 709[2d Dpt. 2009].) Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident (citations omitted). However, a transfer or assignment of only the mortgage without the debt is a nullity and no interest is acquired by it, since a mortgage is merely security for a debt and cannot exist independently of it (citations omitted). Where…the issue of standing is raised by a defendant, a plaintiff must prove its standing in order to be entitled to relief (citations omitted).” (e.s.)Homecomings Fin., LLC v Guldi, 108 AD3d 506-508[2d Dept. 2013].

TONIGHT! Neil Garfield on the “FREE House” Myth and TILA Rescission — How to deal with bias from the bench.

Thursdays LIVE! Click in to the The Neil Garfield Show

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

Contrary to popular belief bias is neither grounds for recusal nor a basis for appeal in and of itself. But if you can show that the judge prejudged the case (i.e., made a decision before he/she heard any evidence, then you have some red flags — but still probably nothing on which to hang your hat.

STOP COMPLAINING AND ATTACK HEAD ON
If bias were the basis for challenging a decision there would be no final decisions. The losing party would always shout bias and the decision would go into limbo. Our judicial system recognizes that judges are human beings and that all human beings have biases and preferences. The question is not whether the bias exists; it is whether the bias caused the judge to prejudge the case.
*
The backdrop of all judicial decisions is that judges refuse to give homeowners a free house. I tend address this head-on and state the obvious bias. Bias is not grounds for recusal in and of itself. Having stated the common bias, I then attack the notion of a free house.
*
Under 15 U.S.C. §1635 the loan contract is canceled but the debt remains and is completely enforceable. The fact that the paperwork (note and mortgage/DOT) is now void by operation of law does not extinguish the debt.
*
A creditor who relies on his payment for ownership of the debt can still sue for judgment and foreclose on that judgment along with other property and money of the borrower. However if the creditor with legal standing (i.e., the owner of the receivable created by the debt) fails to comply with the TILA Rescission statute it is precluded from collecting the debt.
*
But the creditor still has options. It can avoid both compliance with the statute and avoid the loss of enforcement of the debt and can reinstate the note and mortgage (or DOT) by filing a lawsuit to vacate the TILA (statutory) rescission.
*
In this case no creditor was named as owning the receivable i.e, ownership of the debt regardless of whether or not the paperwork (note and mortgage) are valid and enforceable.
*
The would-be foreclosing parties are relying on the paper which is now void by operation of law. They decided, despite strong advice and articles from their own lawyers (readily viewed on the internet), that they would ignore the notice of rescission and would attempt to steamroll their way through court, inventing various restrictions that conflicted with the express unambiguous words of the TILA rescission federal statute.
*
In short, there is only one way that a creditor can lose the debt altogether and a borrower can get a free house, to wit: noncompliance with 15 U.S.C. §1635

How to Deal with the “Free House” Bias

If you are dealing with a bias held by most judges the only effective way of dealing with it is to meet the challenge head-on. If you dance around it it looks like you are trying to “get off on a technicality.”

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

I provide advice and consent to many people and lawyers so they can spot the key required elements of a scam — in and out of court. If you have a deal you want skimmed for red flags order the Consult and fill out the REGISTRATION FORM. A few hundred dollars well spent is worth a lifetime of financial ruin.

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 TERA (Title & Encumbrances Analysis and & Report) 202-838-6345 or 954-451-1230. 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.

===========================

A client asked me this morning about he “free house” bias and whether that will interfere with the decisions and ruling of the court. The answer is “of course it does.” And I again raise the issue that nobody wants to talk about — whether it is right or proper to voir dire the judge not just for bias, but for prejudgment decision before the case started. Here is the response I sent:

The answer to your “free house” question is this: You are correct in identifying that problem. We always start with presumption that the presiding judge will carry that bias with him/her into the courtroom.
However, as I have repeatedly found, once you pierce the foreclosure case, the credibility of the would-be foreclosing party declines to the point where the biased judge will ordinarily rule in favor of the homeowner — faced with inescapable legal defects in the position and assertions made by parties without standing.
But there are exceptions — judges who, in addition to having bias, have already ruled in their minds. For them the proceedings are a sham requirement and a test to see if the judge can APPEAR fair and impartial.
Countering the “free house” mindset first requires a demonstration that the homeowner is well aware that he can neither seek nor get a free house. That requires a presentation that concedes the fact that even if the note and mortgage were completely void, the debt remains and a judgment on that debt will result in a  judgment lien that could be foreclosed by the owner of that debt. That “concession” take the angst out of the “free house” conundrum for the judge and will often be an effective predicate to establishing the primary defense narrative.
So the question is not whether the homeowner will get a free house; it is whether this party seeking to foreclose title and take possession of this home has any right to do so. To say otherwise would be an invitation for anyone to fabricate documentation and foreclose, especially in cases where the homeowner concedes, relying upon false documentation of a false party. That scenario I have seen multiple times where the foreclosure is complete, the homeowner has moved out and basically forgotten about the house. The homeowner is later served with process or given notice that the house was foreclosed AGAIN by a different party.

UCC Hierarchy of Rights to Enforce Note and Mortgage

HAPPY NEW YEAR to readers who celebrate Rosh Hashanah! To all others, have a HAPPY DAY. This is a prescheduled article.

ABOUT LIVINGLIES AND LENDINGLIES

I have assembled a partial list of various possible claimants on the note and various possible claimants on the mortgage. Which one of these scenarios fits with your case? Once you review them you can see why most law students fall asleep when taking a class on bills and notes. Some of these students became practicing attorneys. Some even became judges. All of them think they know, through common sense, who can enforce a note and under what circumstances you can enforce a mortgage.

But common sense does not get you all the way home. It works, once you understand the premises behind the laws that set forth the rights of parties seeking to enforce a note or the parties seeking to enforce a mortgage. The only place to start is (1) knowing the fact pattern alleged as to the note (2) knowing the fact pattern alleged as to the mortgage and (2) looking at the laws of the state in which the foreclosure is pending to see exactly how that state adopted the Uniform Commercial Code as the law of that state.

I don’t pretend that I have covered every base. And it is wise to consider the requirements of law, as applied to the note, and the requirements of equity as applied to the mortgage.

In general, the UCC as adopted by all 50 states makes it fairly easy to enforce a note if you have possession (Article 3).

And in general, the UCC as adopted by all 50 states, increases the hurdles if you wish to enforce a mortgage through foreclosure. (Article 9).

The big one on mortgages is that the foreclosing party must have paid value for the mortgage which means the foreclosing party must have purchased the debt. But that is not the case with notes — except in the case of someone claiming to be a holder of the note in due course. A holder in due course does not step into the lender’s shoes — but all other claimants listed below do step into the lender’s shoes.

The other major issue is that foreclosing on a mortgage invokes the equitable powers of the court whereas suing on the note is simply an action at law. In equity the court takes into consideration whether the outcome of foreclosure is correct in the circumstances. In suits on notes the court disregards such concerns.

Knowing the differences means either winning or losing.

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

I provide advice and consent to many people and lawyers so they can spot the key required elements of a scam — in and out of court. If you have a deal you want skimmed for red flags order the Consult and fill out the REGISTRATION FORM. A few hundred dollars well spent is worth a lifetime of financial ruin.

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 TERA (Title & Encumbrances Analysis and & Report) 202-838-6345 or 954-451-1230. 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.

===========================

UCC Hierarchy 18-step Program – Notes and Mortgages

The following is a list of attributes wherein a party can seek to enforce the note and mortgage if they plead and prove their status:

  1. Payee with possession of original note and mortgage.
  2. Payee with lost or destroyed original note but has original mortgage.
  3. Payee with lost or destroyed original note and lost or destroyed original mortgage.
  4. Holder in Due Course with original note endorsed by payee and original mortgage and assignment of mortgage by mortgagee.
  5. Holder in due course with lost or destroyed note but has original mortgage.
  6. Holder in due course with lost or destroyed original note and lost or destroyed original mortgage.
  7. Holder with rights to enforce with possession of original note and original mortgage.
  8. Holder with rights to enforce with lost or destroyed original note but has original mortgage.
  9. Holder with rights to enforce with lost or destroyed original note but does not have original mortgage.
  10. Possessor with rights to enforce original note and original mortgage
  11. Former Possessor with rights to enforce lost or destroyed note and original mortgage
  12. Former Possessor with rights to enforce lost or destroyed note but does not have original mortgage.
  13. Non-possessor with rights to enforce original note and original mortgage (3rd party agency)
  14. Non-possessor with rights to enforce lost or destroyed note (3rd party agency) and rights to enforce original mortgage
  15. Non-Possessor with rights to enforce lost or destroyed note (3rd party agency) but does not have the original mortgage.
  16. Assignee of purchased original mortgage with possession of original mortgage but no rights to enforce note.
  17. Assignee of purchased original mortgage without possession of original mortgage and no rights to enforce note.
  18. Purchaser of debt but lacking assignment of mortgage, endorsement on the note, and now has learned that the loan was purchased in the name of a third party and lacking privity with said third party. [This category is not directly addressed in the UCC. It is new, in the world of claims of securitization]

Facts matter. It is only by careful examination of the fact pattern and comparing the facts with the attributes listed in the UCC that you can determine the strategy for a successful foreclosure defense strategy. For example if the XYZ Trust is named as the foreclosing party and 123 Servicing is holding the original note and perhaps even the original mortgage, who has the right to foreclose and under what lawful scenario — and why?

Head spinning? GET HELP!

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