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A Movement to Hold Judges Accountable for Their Illegal Actions

Recent articles are beginning to take seriously what homeowners have been saying for more than a decade — that a separate set of rules applies to foreclosures that are biased against consumers, borrowers and homeowners. Those “new” rules are a departure to the rules of due process, evidence and burden of proof in every other civil action.

Now movements are gaining strength to confront situations where judges are in rebellion against the laws they are supposed to enforce. TILA Rescission is only one example. The statute says one thing and the courts “interpret” away provisions they don’t like. The US SUpreme Court tells them there is no room for interpretation and still the courts ignore even their boss of bosses. There are hundreds of other examples in foreclosure litigation where presumptions arise from fabricated documents, facially invalid documents, void documents, and other documents prepared by people who have a stake in the outcome of the litigation.

I don’t agree with all the proposals stated below, especially the ones where judges could be sued for ruling unfavorably to a litigant, but the point is that judges are inventing law rather than following it and for that they should be held accountable in some real meaningful manner. Invention of law is the exclusive province of the legislative branch of government.

When foreclosures were simple, judges made very sure on their own that the paperwork was in order before ordering the sale of property. After all, losing one’s homestead is the most drastic loss a homeowner can endure, roughly the equivalent of capital punishment in criminal law.

Now that banks clouded the scene with apparent complexity, judges are blindly following the herd and are not scrutinizing the paperwork to see if it makes sense. In most cases it doesn’t make sense and extrinsic evidence, rather than clarifying, presents more obscurity and calls for legal presumptions rather than actual facts.

The result is that foreclosures are granted to parties who will never see the proceeds of forced sale of the property. Homeowners’ defenses are not technical. In addition to defending their home they are the only warriors who are battling against the current practices of fabrication, fraud and misrepresentation of investment banks operating under the cover of “securitization” that never occurred.

These mega banks are still pursuing of strategy of protecting ill-gotten gains and collecting more ill-gotten gains. The only two real parties in interest — investors who put up the money and borrowers who took the money are left out in the cold with virtually no remedies to protect themselves.

It’s a combination of laziness and willful ignorance that keeps allowing illegal foreclosures to proceed. Add a dash of politics and you have decisions based upon one thing: if the borrower doesn’t pay or stops paying it makes no difference whether the party demanding payment had any right to it.

Instead of being careful to provide a remedy to a party with a real economic stake in the outcome, the courts have nearly uniformly sought only punishment of borrowers who don’t pay, even if there is nobody identified who is entitled to receive payment.

Here is one example that I don’t know much about but in principle I support it:

Prospect on the financial requirements and business venture opportunities of joining forces and dividing the labor
to bring about change by forming a national civic movement for
judicial abuse exposure, redress, and reform

By

Dr. Richard Cordero, Esq. 
Ph.D., University of Cambridge, England
M.B.A., University of Michigan Business School
D.E.A., La Sorbonne, Paris

 

You may share and post this article
in its entirety, without any addition, deletion, or modification,
with credit to its author, Dr. Richard Cordero, Esq.,
and the link to his website:
http://www.Judicial-Discipline-Reform.org.

 

A. The need for individual parties to join forces to expose the all-powerful class of judges

1. No doubt ‘we [litigants, advocates of honest judiciaries, and those who have experienced or witnessed judges’ abuse of power] are all supporting our own fight’, as one put it. This means that we are fighting separately against a solidly united and all-powerful class of judges. As a result, we stand no chance against them. We fight alone only for our collective assured defeat.

 

2. Judges wield power over We the People’s property, liberty, and the rights and duties that frame our lives. One federal judge can suspend nationwide a president’s executive order. Federal judges are the only officers, whether public or private, to hold a lifetime appointment; they are unimpeachable and irremovable in practice: Only 8 federal judges have been impeached and removed in the last 230 years since the creation of the Federal Judiciary in 1789(*>jur21§a). Judges close ranks to protect the benefits(*>OL:173¶93) that they grab by abusing their power and maintain their status as a privileged class:

 

3. After President Trump disparagingly referred to the judge presiding over the fraud case brought against Trump University as “the so-called judge”, Then-Judge Gorsuch commented on that reference thus:

 

“An attack on one of our brothers or sisters in the robe is an attack on all of us”(>OL2:527).

 

4. Through that comment, J. Gorsuch revealed judges’ gang mentality. People with that mentality have no respect for rules. They do not ask themselves whether the “attack” was legally or ethically justified or had the “appearance of impropriety”(*>jur:68fn123a) and was to be avoided. Their only concern is to protect their power through intimidation, abuse, and retaliation. Judges’ gang has all the power in their turf, the courts(*>OL:267§4), where they can disregard the law and the rules and conjure up their own or simply suit themselves.

 

5. Indeed, Then-Judge Kavanaugh and his peers and colleagues in the District of Columbia Circuit dismissed 100% of the 478 complaints lodged against them and denied 100% of the petitions for review of those dismissals in the 2006-2011 11-year period(>OL2:748). This holds true for the other circuits(OL2:548; *>jur:10-14). Federal judges ensure their unaccountability by in effect abrogating instead of applying the Judicial Conduct and Disability Act(jur:24§b) that allows anybody to file a complaint against them. This statement is based on the judges’ official statistics(>OL2:795§C) submitted to Congress and the public annually(jur:28fn34b) as required under 28 U.S.C. §604(h)(2)(jur:2623a).

6. Judges abuse their power because they can do so risklessly by complicitly practicing reciprocal exoneration from complaints (OL2:792) as well as coordination, knowing indifference, and willful ignorance and blindness of their abuse(jur:88§§a-b).

 

7. By contrast, you, I, and millions of parties have only one personal, local case that each of us prosecutes alone before a judge. Why would that judge do what is right in that one case and thereby antagonize for the rest of her professional life her peers and colleagues, the very ones willing to protect her from 100% of complaints(>OL2:792but who can also deem her unreliable and a traitor and ostracize her(jur:56§e)It is safer and more beneficial for the judge simply to do what is harmonious(OL2:464) with her and the other judges’ interests and be done with it.

 

8. The other two branches of government are too afraid(>OL2:644¶2, 610¶16, 505¶2; *>jur:23fn17) of the judges’ power to subject the judiciary to the constitutional checks and balances which those branches could exert on the judiciary.

 

9. That being so, what chance does each of us stand alone against a judge, never mind on appeal to a panel or a council of his or her colleagues and peers? None. If we all continue supporting only our own fight separately, we attract the application to us of Einstein’s aphorism: “Doing the same thing while expecting a different result is the hallmark of irrationality”, for it betrays the belief that the wishful thinking in our head is also outside as part of the real world.

 

10… Therefore, we have no choice: We either join forces to have a fighting chance against the power abusive class of judges or we all exhaust our capacity for work, time, and emotional and financial resources in a futile gasp for justice.

 

B. Joining forces while applying the fundamental principle of any organization: division of labor

 

11… If we join forces, we can form a national civic movement for judicial abuse of power exposure, redress, and reform(*>jur:164§9). To that end, each of us has to concentrate her or his effort, time, and resources on what each can do best.

 

12… I can conduct professional law research and writing, and engage in strategic thinking(OL2:445§B, 475§D). For proof, I have produced a 2-volume study of judges and their judiciaries, titled and downloadable for free thus:

Exposing Judges’ Unaccountability 
and Consequent Riskless Wrongdoing: 

Pioneering the news and publishing field of 
judicial unaccountability reporting

* Volume 1: http://Judicial-Discipline-Reform.org/OL/DrRCordero-Honest_Jud_Advocates.pdf >all prefixes:page number up to OL:393

Download the volume files using MS Edge, Firefox, or Chrome; it may happen that Internet Explorer only downloads a blank page. Open the downloaded files in Adobe Reader, https://acrobat.adobe.com/us/en/acrobat/pdf-reader.html so that you can open the Menu bar >View >>Navigation Panels >Bookmarks panel and use the bookmarks that make navigating to the numerous(* †>parenthetical references) very easy.

 

13… You have proved your superior skills as business people. For proof, there are your companies, law firms, and business contacts.

 

14… You can put them to good use to help form the national civic movement described in the Introduction to the Programmatic Presentation and its Outline hereunder. How you can do that is also described therein. Succinctly stated, you can:

 

a. share and post to websites and social media as widely as possible the email version of the Programmatic Presentation or hand out at your meetings its 1-sheet of paper version at >OL2:818-819 and include in your printed materials its 2-sheet of paper version at821-824;

 

b. gather a group of your friends, colleagues, and investors to whom I can make the Presentation in person upon an all-expenses paid invitation; otherwise, via video conference;

 

c. donate to the work of Judicial Discipline Reform using the button and link below, and participate in fund-raising as discussed next.

 

C. The fundraising labor: No meaningful endeavor can be advanced without money; and money can be made while doing right

 

15… Moral support is necessary to fortify the spirit and keep going. But it is not sufficient… Politicians and judges ask and receive donations or grab money to remain in office or spend it on themselves and their cronies(*>jur:32§2, 81fn169). They do so with disregard for the law and the rules and to the detriment of parties to cases. To assert one’s rights before them money is also necessary, for asserting them requires more than simply prosecuting one’s case.

16… Every party to a case, even a pro se and all the more so a party paying attorney’s fees, knows how expensive it is to pursue one’s quest for justice in one’s personal, local case.

 

17… However, we are doing much more: We are trying to expose a judiciary that has institutionalized abuse of power as its modus operandi(*>jur:49§4). Our ‘case’ is so much greater and so are the expenses. Such exposure cannot be done for free or even on the cheap. It is an expensive endeavor. Hence, we need to raise funds.

 

18… But if the people who have money do not donate precisely because they were asked for money, and the people who do not have money do not donate precisely because they do not have money, who helps finance our Labor for Justice? That Labor is bigger than each of us since it is in behalf of We the People.

 

1. A business plan lays out the purpose of raising funds

 

19. To learn about the purpose for which money is necessary, review the Table of Contents(>OL2:563) of my for-profit business plan. In brief:

20. First of all, the plan envisages the enhancement of the website at http://Judicial-Discipline-Reform.org. Currently, the site provides free access to my articles. Visitors to it have found them so informative and appealing to their needs that as of this writing 25,105 have subscribed to the site. Let this call to mind the Wright Brothers flying their airplane if only for a few seconds in the presence of investors to show them that they had a viable product worth investing in its development…

 

21. The enhancement of the site will turn it into both a clearinghouse for the public to upload their complaints against judges and a research center(*>OL:274-280) for them to search complaints for the most convincing types of evidence: patterns and trends(*>OL:304-307) of judges’ abuse (as opposed to the anecdotic story of one complainant’s personal, local case), and schemes resulting from judges’ coordinated, structured, and on-going abuse(>OL2:614).

 

22. Similarly, an investment in an investigation by Information Technology experts can reveal how judges’ intercept their critics’ communications(>OL2:781) in violation of our First Amendment “freedom of speech, of the press, and the right of the people peaceably to assemble, and to petition the Government for a redress of grievance”(>OL2:792¶1). Bankrolling(OL2:720¶m) that investigation can earn investors money and name recognition.

 

23. Money is both needed for, and can be made by, calling parties to join the movement to participate in the nationwide demand for:

a. the refund of court filing fees because of judges’ intentional failure to read the vast majority of briefs(>OL2:608§A), which they require parties to produce and file; and

 

b. the reimbursement for $1,000s and even $10,000s that a brief costs to research, investigate through discovery, support with a record, write, print, bind, serve, file, argue, etc. Judges make the money, effort, and time spent on the brief go to waste when they do not even read it, and cannot base their disposition of the case on it.

 

24. Judges should be held liable for the damages that they cause -as they do malpracticing doctors and lawyers, abusive police officers, pedophilic priests, etc.- and the fraud that they commit by having clerks dispose of cases by rubberstamping dumping forms: unresearched, unreasoned, arbitrary, fiat-like summary orders.(OL2:760)

 

2. The Dissatisfied with The Judicial and Legal System will be a source of funds as they rally to the enhanced website and the national civic movement

 

25. People need food as a matter of life or death. Yet, farmers make money by selling their crops and animals; and storekeepers by selling food to their customers; and restaurateurs by preparing and serving it to diners. Also, people must pay their doctors and hospitals to recover their health and stay healthy; and they pay their attorneys to defend everything that is vital to them, including their home, their liberty, and their life(OL2:455§B).

26. Likewise, we can draw to the website and the national civic movement the The Dissatisfied with The Judicial and Legal System: They are parties to the more than 50 million new cases filed in the state and federal courts every year(*>jur:8fn4,5), to whom must be added the hundreds of millions of cases pending and deemed to have been wrongly or wrongfully decided. The Dissatisfied constitute a huge(OL2:719¶¶6-8) untapped voting bloc. We canrequest them to:

 

a. donate, as do the people who support the Women’s March, political candidates and parties, and charities;

 

b. pay membership dues, as required by websites to have access to their premium contents;

 

c. pay fees for services that they make use of, such as the website’s research center, legal education, training in litigation, consulting and strategizing, advocacy, and representation(*>jur:153§§c-g), etc. Their offering can lead to the creation of the Institute of Judicial Unaccountability Reporting and Reform Advocacy(*>jur:130§5);

 

d. pay to buy, or have their complaints verified and edited for inclusion in, publications, e.g., how-to manuals on detecting and exposing abuse(*>OL:274-280, 304-307), and demanding redress; and The Annual Report on Judicial Unaccountability and Wrongdoing in America(*>jur:122§§2-3);

 

e. buy tickets to attend, or pay to advertise at, the first-ever and national, multidisciplinary, multimedia, and interactive conference on judges’ abuse of power(*>jur:97§1; *>dcc:11; OL:42);

 

f. pay to buy or use products, e.g., the software to be based on artificial intelligence for innovative statistical, linguistic, and literary auditing of judges’ writings(*>OL:42; jur:131§b); etc.

 

3. Funds are needed to support the current effort

 

27… Conducting professional law research and writing causes an opportunity loss: The effort, time, and resources employed therein cannot be employed in a gainful activity. Neither can those employed to email and mail the articles produced; and to deal with replies received by email, mail, and phone, which itself consumes substantial resources.

 

28… The loss of money that does not come in is only aggravated by the money that must go out to:

 

a. pay the website hosting company and the Internet Service Provider;

 

b. buy computer equipment and office supplies;

 

c. run the office, which entails rent and utilities; etc.

 

29… Money is also needed to:

 

a. travel and stay at hotels to deliver at various venues(*>OL:197§G) the Programmatic Presentation(OL2:823) on forming the national civic movement,

 

b. promote the proposed unprecedented citizen hearings(>OL2:812§E) at universities and media outlets for journalism professors and news reporters to take testimony from victims of, and witnesses to, judges’ abuse;

 

c. interview prospective members of the team of professionals needed to form the movement;

 

d. hire a team and open and run an office for them, as described in the business plan(see also §F infra); etc.

 

30… This effort and expense intended to benefit the many should not be borne by only one.

 

D. The most favorable public mood for fundraising and national civic movement formation

 

31. The funds raised can reasonably be expected to effectively and profitably form a national civic movement for judicial abuse exposure, redress, and reform because nationwide social events have generated the most favorable public mood therefor:

32. On November 8, 2016, candidate Trump was elected president. Yet, in less than 2½ months, on January 21, 2017, a barely known organization, the Women’s March, was able to stage in Washington, D.C., and other cities the largest demonstration in American history to date, with several million participants. The call of the Women’s March to protest bigotry, hate, salary inequality, boardroom discrimination, etc., was heard by a public largely attuned to it.

33. The New York Times and The New Yorker, published their exposés of Harvey Weinstein’s sexual abuse on October 5 and 10, 2017, respectively.  Literally, in only a few days the MeToo!movement began to emerge everywhere. Since then it has widely given voice to, and stirred up, a public mood of intolerance of any form of abuse.

 

34. Today that mood is expressed in a rallying cry that the public will shout at judges once it is informed of the nature, extent, and gravity of their abuse, and becomes outraged at them:

 

Enough is enough!
We won’t take any abuse by anybody,
not even judges,
anymore.

 

E. The most opportune political season for politicians to expose judges

 

35. The 2020 election campaign has started. Nine of the possibly more than 25 presidential candidates have declared. Each of them needs a national issue that elevates him or her above the pack and brings in indispensable donations, campaign volunteers, and positive word of mouth. The sooner they recognize the huge untapped voting bloc of The Dissatisfied with The Judicial and Legal System, the sooner they and others will try to win them over.

36. We need funds to rally The Dissatisfied to our movement so that it is there where principled and opportunistic(OL2:610§3) politicians find them informed about, and outraged at, judges’ abuse, and making precise demands for exposing the judges, seeking redress for the abused, and reforming the judiciary to empower the People to hold judges accountable and liable.

 

F. The symbiotic relation between the media and the movement

 

37. As the Dissatisfied rally to us, the commercial and social media will find it in their interest to cover the formation of the movement. A reciprocally reinforcing process will develop between the media and the movement in formation:

a. The movement will provide the media an issue that sells copy and the media will provide the movement coverage that will attract ever more people informed about, and outraged at, judges’ abuse. Fundraising is necessary to launch and accelerate this process.

38. That model of symbiotic relationship between investigative journalism outlets, such as International Consortium of Investigative Journalists(*>OL:1) and ProPublica(jur:86¶193), and the national media can be used by us:

a. The national media, even local stations, can pursue available investigative leads to two unique national stories(OL:194§E) or sponsor and/or buy the findings of the investigation and research(OL:60, 115, 255) conducted by the team of professionals guiding the formation of the movement.

39. First, we must show that we have something worth buying or sponsoring. To produce it, we must attract a team of competent and committed professionals(*>jur:128§4), who will command a commensurate salary, even as they participate in an academic and business venture(jur:119§1).

 

40. If we divide the labor and each of us works on his or her share of it, we can form the movement, hold judges accountable and liable, and even make money. We can also earn something of much greater and longer-lasting value: The national recognition by a gratefulPeople as their Champions of Justice.

Put your money
where your outrage at abuse and
passion for justice are.

To advance our common interest in
exposing unaccountable judges’ riskless abuse of power and
support the professional research and writing of
Judicial Discipline Reform:

DONATE

here

or
at the GoFundMe campaign at
https://www.gofundme.com/expose-unaccountable-judges-abuse

Facially Valid for Those Inclined to Latin

Bill Paatalo in his unrelenting search for doctrine that covers the widespread fraud confronting borrowers of all types including especially homeowners, has found some old English common law concepts that do have some application in today’s chaos in the courtroom.

His question related to the Latin doctrine Nul Tiel Record.

==============================
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 or check us out on www.lendinglies.com. Order a PDR BASIC to have us review and comment on your notice of TILA Rescission or similar document.
I provide advice and consultation 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.
==========================
OK this is really technical and potentially out-dated. But still relevant.
 
This is from old English common law. It generally is used in the context of Scire Facias. That in turn means “written on its face.” But contextually it also means something of record and by that is meant something of public record. 
 
Nul Tiel Record, also Latin, literally means there is no such record. It is used in the context of a defense (criminal case) or claim (civil) which relies on the allegation of a written record, presumably a public record. 
 
Nailing a poster to a telephone poll would not ordinarily be regarded as a public record despite being a “record” and displayed in “public.” Some authorized agency would need to review and approve it as being in conformity with statutory requirements for entering it into the public record.
 
Versions of these concepts are found in appellate law where the appellate court is limited to looking at the record in appeal and not on allegations contained in the brief that are unsupported by the record on appeal. Some doctrines allow a very limited amount of time to correct the record or to show how the matter is literally a matter of record and hopefully, public record. 
 
These particular doctrines related to allegations that claim something is in the record but in fact is absent from the record, as displayed.
 
Theoretically these concepts could be used in the context of foreclosure actions where, for example, banks or their lawyers upload some version of the PSA and then point to that record as being facially valid because it was “recorded.” But uploading it to a site that can be seen is not the same as formal registration of the document; and formal registration of the document does not mean it is complete unless it is reviewed and formally accepted by the government agency with whom the document is “registered.”
 
So for example a county clerk would reject a deed that does not have a signature, notarization or the proper number of witnesses. At SEC.gov there is no such review and thus no rejection or formal acceptance of improper documentation. While the document is scire facias (i.e., it has writing on its face)  it isn’t “of record.” This is why the PSA should never be used for judicial notice. Sec.gov is basically used by foreclosure mill lawyers as a an ftp site on which documents are stored rather than registered or reviewed for facial validity. But they use it to mislead the court into believing that the document is a public record document, when it clearly is not.
*
Such documents are definitely in the public domain when they are written and displayed publicly. But they are not appropriate for judicial notice because they have neither been reviewed or accepted by any authorized governmental entity or agency. 
Perhaps an extension of these doctrines could apply to assignments of mortgages and endorsements of notes that contain amorphous or implied reference to public records that do not exist. For example, Ocwen signing as Attorney in Fact asserts or implies that Ocwen is the attorney in fact. 
 
Being attorney in fact necessarily implies a power of attorney executed by a party who possessed powers to convey. Such powers generally need to be in writing. Such an assertion then would be reference to a document that is neither attached to the original document nor specifically described as part of public record. Thus the document would be claiming Scire Facias (it is written on the face) without describing the document upon which it is written. 
 
It also might imply that the power of attorney is public record. If a homeowner challenges the document as not being in the public record at all and not being attached to the instrument, the court should refuse to accept facial validity of the instrument. But the validity of the document can still be proven with extrinsic (parole) evidence showing that the power of attorney actually existed even though it wasn’t in the public record and wasn’t attached the assignment. 
And without timely objection the instrument could be accepted into evidence even with obvious defects.

Caliber and LSF9 Trust Example of Smoke and Mirrors

The lesson is keep your eye on the ball. The natural human reaction to an affidavit is to assume it is true. We assume that it would not be submitted if the lawyers knew it wasn’t true. And in most cases people don’t lie in affidavits. But they do mislead sometimes by leaving out context. And then there are affidavits and declarations fabricated, executed, filed and even recorded in  foreclosure cases which are mostly lies and virtually all misleading.

To reveal this you must take your time in reviewing the documents and affidavits submitted. They were created so that at a glance everything would seem in order. On closer reading you can see that they don’t actually say anything of value and therefore should not be considered facially valid documents conveying or certifying anything.

==============================
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 or check us out on www.lendinglies.com. Order a PDR BASIC to have us review and comment on your notice of TILA Rescission or similar document.
I provide advice and consultation 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.
==========================

Bill Paatalo wrote the following in September 2018:

In 100% of the cases I’ve investigated regarding “U.S. Bank Trust, N.A. as Trustee for LSF9 Master Participation Trust,” the servicer (most often “Caliber”) provides the exact same type of affidavit. This is all they ever produce, and here, the court says it doesn’t cut it.

“Moreover, Mr. Cantu is not an employee of Plaintiff or Wells Fargo and therefore can not attest to what is in the possession of the Plaintiff or Wells Fargo. As noted above, the copy of the Note and allonge does not contain any endorsement or date which would support that the Plaintiff had possession when the action was commenced. The affidavits of Caliber’s Default Service Officer did not give any factual details of a physical delivery and, thus, failed to establish that the plaintiff had physical possession of the note at the time the action was commenced, and as such Plaintiff is not entitled to summary judgment. (see Wells Fargo Bank, NA v Burke, 125 AD3d 765, 766 [2d Dept 2015]; US Bank N.A. v Faruque, 120 AD3d 575, 577 [2014]; Bank of NY Mellon v Gales, 116 AD3d 723 [2014]). Accordingly, it is hereby

ORDERED that Plaintiff’s motion is denied, and it is further”

So what foreclosure mill lawyers are doing is filing affidavits and declarations. That part of it is true. They are filed and sometimes recorded.

But what is in those affidavits and declarations is not supported by anything on the face of the instrument, or what is attached to it, nor even by reference within the instrument to a fact or document in the public domain. So it is wholly useless without resort to extrinsic evidence (testimony and exhibits), which means that it cannot be considered a facially valid document.

Putting this into practice is actually not hard. You simply need to break down the wording so that each phrase or statement is analyzed for the truth of the matter asserted.

The LSF9 Master Participation Trust is but one example. It is named but not described. So where normal custom and practice would dictate that it be named and described, the foreclosure mill lawyers are convincing judges to treat it as though it was described.

When the homeowner is described it is usually with a name, and place of residence or as title owner of certain property. When a Trust is described it is named without a place of residence and with no direct statement that it owns anything. In other civil pleadings, if the LSF9 Master Participation Trust was real, it would say that it was a common law (or statutory) trust organized and existing under the laws of the state of XXXXX with its principal place of business at YYYYYYYY in the City of ZZZZZ.

If you do a thorough search of all cases, you will not find a single instance in which a trust is named as Defendant except certain cases where the homeowners are suing the apparent trust under the misapprehension that it is an existing legal entity. On the finance side nobody refers to the trust much less sues it. There are a few cases in which banks claiming to be Trustees of a claimed REMIC Trust sued someone for delivering improperly underwritten loans, but no case in which the allegation is made that the Trust actually purchased those loans. All those cases settle long before trial.

Back to LSF9:

The lawyers submitted an affidavit that was probably forged. But assuming it wasn’t, the affidavit said nothing that could be accepted as evidence of anything because the knowledge of the alleged affiant, the employment of the alleged affiant and the authority of the alleged affiant were nonexistent.

But it gives the appearance of having facial validity even if there is none. It has a named affiant, a statement  and a notarized signature.

As the court found in New York, the affiant failed to state the basis for his knowledge which could NOT be implied from the affidavit since it did not recite that he was an employee of the Trust, the Bank or any other presumed party in interest.

Consider the following hypothetical extreme example which translates the affidavit:

My name is John Smith. I am an independent contractor for Caliber. I was hired to sign this affidavit. I have no knowledge of anything contained in this affidavit. I was not present in any capacity when any of the events or documents recited in this affidavit occurred or were created. I have never been an employee of any entity whose records are described in this affidavit nor did I have any role or knowledge of the events or the documents or records referred to herein. However I am familiar with the name Wells Fargo and I can see the name “LSF9 Master Participation Trust” on the affidavit prepared for me to sign.

Such affidavits are common place ONLY in one place, to wit: in the courtroom where a foreclosure is pending. And in all cases, except foreclosures, such affidavits are instantly rejected.

Why Fabrications? Why Forgeries?

In an increasing number of foreclosure cases, homeowners are going head to head with the lawyers who file claims on behalf of entities on the basis of fabricated and/or forged instruments that in many cases were also recorded in county records. Lawyers like Dan Khwaja in Illinois are getting clearer and clearer about it. They hire experts who understand exactly how the notes are mechanically created and the endorsements are not real signatures.

The key question is why would the notes have been fabricated and forged when there actually was a closing and a note was actually signed? We’re talking about the financial industry whose reputation depends upon safeguarding all signed documents. If they didn’t safeguard the documents and instead destroyed them or “lost” them, why was that allowed to happen?

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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 or check us out on www.lendinglies.com. Order a PDR BASIC to have us review and comment on your notice of TILA Rescission or similar document.
I provide advice and consultation 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.
==========================

So we have a case in Illinois where lawyers filed a judicial foreclosure on behalf of Bank of New York/Mellon (BONY) as trustee (i.e. representative of) “holders” of certificates. The lawyers attach a copy of a note and indorsements. Khwaja hired an expert who found quite definitively that the note and the endorsements were all fabricated (forged). Khwaja has filed a motion for summary judgment.

Here is my analysis:

*
The lawyers who filed the claim have a serious problem. If they cannot convince the judge that they have no need to respond they are dead in the water. They must either pay someone to commit perjury or seek to amend with an actual original note. In view of prior studies that show that most (or at least half) of all notes were “lost or destroyed” immediately following the “closing” combined with your expert on hand, coming up with the original note is not an option.
*
And that brings us to the question of “why?” If there really was a closing at which the borrower signed documents, why do they need fabricated documents? To me, the answer is simple. In order to sell the same loan multiple times they needed to convert from actual to imaged documents. The actual one had to disappear. And the handful of megabanks who had a virtual monopoly on tens of millions of mortgage transactions made it “custom and practice” to use images rather than actual documents. [This practice has spilled over to property sale contracts where neither party gets an original].
*
And we have the additional issue which is presented by the foreclosure complaint. It says that BONY appears on behalf of the holders of certificates. The simple question is “so what?”
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Being holders of certificates means nothing. It leaves out any assertion that the holders of the certificates are owners of the certificates, or anything that might identify those “holders”. So the proceeds of foreclosure could then go to whoever was chosen by the parties actually pulling the strings.
*
They are asking the court to fill in the blanks. They want the court to draw an inference without ever stating the fact to be inferred, to wit: the holders of the certificates are owners of the certificates who are therefore owners of the debt, note and mortgage. There simply is no such allegation nor any exhibit indicating that is true. The reason is that it is not true.
*
So who is really the Plaintiff? Supposedly not BONY who is appearing in a representative capacity.
*
If “sanctions” were applied against the “Plaintiff” BONY would claim it is not the actual party and that the unidentified “holders” of certificates are the proper party or perhaps an implied trust.
*
So then is it the certificate holders, represented by BONY? But they don’t have any right, title or interest to the subject debt, note or mortgage. The prospectus and certificate indentures make that abundantly clear in most cases.
*
Examining what happens after a foreclosure is “successful” provides clues. Neither BONY nor any certificate holder ever receives the actual money from the proceeds of the purported sale of the property.
*
So who does?
*
As the one party with actual control over the loan receivable, the investment bank that created the “securitization” scheme is the only party that comes close to being an actual creditor. But here is their problem: that loan receivable has been sold multiple times. This not only leaves them with no claim to the debt, but a surplus of funds over and above the amount due on what was the loan receivable. It’s basic accounting and bookkeeping. And if that were not true the banks would not be doing it.
*
So in the real world it is the investment bank that gets the proceeds of a foreclosure sale. But they do it as the “Master Servicer” of an implied (and nonexistent) trust. The money simply disappears.
*
In order to get away with selling the debt multiple times they had to make each sale a non recourse sale. And they did that. So the buyers of the debt, note and mortgage had no actual legal title to the debt, note and mortgage and no recourse to the borrower to collect on the unpaid debt.
*
THAT leaves NOBODY as owner of a debt that has probably been extinguished and reveals the paper issued to buyers/investors as essentially the issuance of cash equivalent instruments (also known as currency). And THAT is the reason the banks, after  two decades of this nonsense, have yet to come to court and simply say “here is proof of our funding of the origination or purchase of the debt, note and mortgage.”
*
If they did, they would be admitting to lying in millions of foreclosure cases over at least a 15 year period of time. Their scheme effectively concentrated the risk of loss on investors and borrowers while literally retaining all the benefits of supposed loan transactions for the sole benefit of the intermediaries, who then leveraged loans multiple times.
*
This translates as follows: the money taken from investors is an unsecured liability of the investment bank. To be sure that has a value — but not a value derived from loans to homeowners. THAT value was taken by the investment bank who cashed in on it already.
*
Note: For certain second tier investment bankers there were transition periods in which they were at actual risk. Examples include Lehman and Bear Stearns. But the top tier was able to sell forward on the certificates and never commit a single dime of their own money into the securitization scheme even in transition. But by pointing to Lehman and Bear Stearns they were able to convince policy makers that they were in the same position. This produced the “bailout” which was essentially the payment of even more money for losses that did not exist.
*
In an odd twist of irony, Wells Fargo was the only party (2009) that admitted to no loss but was forced to take bailout money so that other “less fortunate” parties would not be singled out as weak institutions.
*
In truth the AIG bailout and similar bailouts were merely payments of extra profits to Goldman Sachs and some other players, leaving investors and borrowers stranded with nearly worthless investments and collapsed markets for both homes, whose prices had been inflated by over 100% over value, and a nonexistent market for the bogus certificates that the Fed chose to revive by its purchasing program of “mortgage bonds” that were neither bonds nor backed by mortgages.
*
Despite the complexity of all this, on a certain level most people understand that the banks caused the misery of the meltdown and profited from it.  They also understand that it is still happening. The failure of government to deal appropriately with the existential threat posed by the megabanks clearly played into and perhaps caused the social unrest around the world in the form of “populist” movements. And until governments deal with this issue head-on, people will be looking for political candidates who show that they are willing to take a wrecking ball to the banks and anyone who is protecting them.
*
In the meanwhile, an increasing number of homeowners (again) are walking away from homes in the mistaken belief that they have an unpaid debt to the party named as the claimant against them.

Tonight! Facial Invalidity! Russell Baldwin, Esq. Rejoins the Discussion 6pm EST

SubTopic: What Happens if MBS Are Not Backed by Mortgages? How does that play out in foreclosure litigation?

Thursdays LIVE! Click in to the Neil Garfield Show

Tonight’s Show Co-Hosted by Neil Garfield and Charles Marshall, Esq. 

with Bill Paatalo, PI

And Special Guest Russell Baldwin

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

Russ Baldwin has some special insights into a continually developing area of foreclosure defense — what if the presumptions are being applied when the document is not facially valid. When the document requires extrinsic evidence to identify parties or their authority and the extrinsic evidence is neither attached nor identified, is the document facially valid?

I say no it isn’t. If you wrote out what appeared to be a check for a sum of money made payable to a party who could only be identified by reference to a power of attorney or trust agreement, the parties would not be defined or identified until you were provided with the power of attorney or trust agreement under circumstances where the agreement or power of attorney was still in force. This sounds more like a private contract than a negotiable instrument. And yes the contract can be proved up by introducing the extrinsic (parole) evidence but no, the instrument itself would not be governed by the laws and rules governing negotiable instruments under Article 3 of the UCC.

If I am correct, then the instrument is not facially valid although the terms could still be proven. But the burden of proving the agreement, consideration, offer and acceptance would be on the party seeking enforcement. They would not get any presumptions applied. They would be required to produce proof of the owner of the debt, the owner of the instrument and the owner of the mortgage. Remember that mortgages and deeds of trust are never negotiable instruments. And also remember that there is no such thing as an owner of the mortgage who does not own the debt. That is under Article 9, UCC.

Russell Baldwin is a practicing licensed attorney in Lincoln City, Oregon. He has his own insights as to foreclosure litigation and we welcome fresh points of view. In 2011 he got the largest jury verdict of nearly $3.4 million and an award of $450,000 in attorney fees. He has wide experience in civil litigation and in City government, having been the interim City Attorney. He was admitted to practice law 30 years ago. Email baldwin_atty@embarqmail.com

Facial Validity vs Enforceability

It is universally accepted that a mortgage or deed of trust may not enforced except by the owner of the actual debt. The debt exists regardless of whether it is in writing or not. While a promissory note might be enforced by a party who does not own the debt (Article 3 UCC), forfeiture of a homestead requires that the mortgage be enforced by the actual debt owner (Article 9 UCC), or someone who can prove the identity of the debt owner and delegation of authority from the debt owner to the party enforcing the mortgage or deed of trust. 
A facially invalid document is neither void nor unenforceable, but it does require more proof to enforce than a facially valid document.
 
If you received the money or payments were made on your behalf, you owe the money simply because of the act of receiving or benefiting from a money transfer. 
 
The debt is normally “merged” (see Case Analysis) into the promissory note if the Payee on the note and the owner of the debt are the same person or entity. If the Payee and Debt Owner are not the same entity the debt still exists even if there is no written instrument that reflects the transaction between the person or entity who advanced their own funds and the person(s) usually designated as “borrowers.” 
 
But the terms of payback can only be determined by reference to extrinsic evidence because the operative note does not name the Debt Owner nor does it show on its face any specific reference of authority on the face of the note to represent the Debt Owner. If essential terms or provisions can only be ascertained through external evidence (“Parole Evidence”) then the instrument is not facially valid. 
 
For these reasons and others, we believe the Case Analysis will reveal that both the note and the recorded encumbrance are not facially valid. The fact that an instrument is not facially valid does not mean it cannot be enforced. It simply means that no factual or legal presumptions can be applied to the instruments. In turn, that means that if someone wants to enforce the note or mortgage or deed of trust, they must allege and prove the origination of the debt by proving the elements of a monetary transaction, the identity of the Debt Owner and explicit authority of the party enforcing the debt, together with the authenticity and validity of the note and instrument of encumbrance (mortgage or deed of trust). 
 
For strategic recommendations as to how to use this information, please Order the Case Analysis which looks at BOTH recorded documentation (which is the subject  of the TERA) and court documents, correspondence, statements, notices etc. that were not recorded in county records.  
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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 or check us out on www.lendinglies.com. Order a PDR BASIC to have us review and comment on your notice of TILA Rescission or similar document.
I provide advice and consultation 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.
==========================
 

About Legal Research And Fact Analysis

The following article is not a legal opinion upon which you can rely. Hire a lawyer at least as a consultant before acting on anything contained herein.

When people retain us to perform analysis, what we are doing is applying our knowledge of facts regarding the current context of foreclosures, foreclosure defenses and claims based upon wrongful foreclosures. Each case must be carefully analyzed to see which of the many potential weaknesses in the foreclosure process are present. Then we  give consideration to which of those might traction in court (i.e., be persuasive to a judge).

Most lay people are familiar with the application of logic in persuading a judge or anyone else for that matter. To complete the process of persuasion you must  convince the judge to accept your proposition as being supported by case law and statutes, if applicable. Logic and common sense are inplay, of course, but judges are charged with responsibility of following previous appellate decisions in their district unless there is something in the present case that is different from the previous decision.

If you have cases supporting your proposition from other jurisdictions, the judge is not bound to follow them, but they still can be persuasive. If those decisions conflict with appellate decisions in your jurisdiction they will have very little persuasive effect.

So if you have previous cases in your jurisdiction that closely resemble the fact pattern presented then the judge might be bound to follow those decisions even if he or she doesn’t particularly agree with the result.

This is where the presentation of facts in an orderly and persuasive manner makes all the difference and is frankly why people come to us to have those narratives drafted. The narrative must logically suggest the outcome you desire — i.e., your proposition. A simple reading should immediately suggest that you are right and your opposition is wrong. If it doesn’t, then all the legal research in the world is not going to help you.

But without the legal research providing the judge with grounds to rule in your favor, you still don’t win. Too many decisions are based upon vague arguments of law that have no real foundation. That is how the banks have chased so many people out of their homes getting “defaults” on non existing claims.

So what I do, after we have done the title analysis and case analysis which includes the first real draft of the defense narrative, is I distill 2-3 main points that I want to support. I then summarize them like a case note as if they were law. And then I hire a research group like National Legal Research Group to find support in cases and/or statutes that support that proposition and which have not been overruled or overturned.

That provides the basis for a persuasive memorandum of law. In jurisdictions where there is no hearing on the pending motion the memorandum of law is the last time you get a chance to convince the judge of anything. In jurisdictions where there is a hearing in which the judge hears oral argument, the attorney or pro se litigant must be able to persuasively argue the defense narrative and show ways in which the opposition is wrong. And all that must be done quickly.

Persuasive argument does not include snide remarks or “but Judge you don’t understand.” If the Judge doesn’t understand your proposition of fact and law you have lost. Oral persuasion of judges is an entire topic that fills hundreds of books because it is an art that improves with each telling.

While sometimes people retain us to draft the proposition of law and fact that they already know they want to pursue so that the field of research is narrowed down to something very specific, most come to us with what turns out to be mini-projects. Our procedures are currently evolving and we are about to go to the next level of IT in automation, case management, document assembly and client portals enabling us to provide both custom and generic forms quickly and efficiently for the lowest cost possible.

But for now, here is how we work for lawyers and for pro se litigants:

1. Submit registration form filled out as completely as you can. No cost, no obligation and totally private. Information is not used for any purpose other than my speaking with or corresponding with you —  If you want to submit your registration form click on the following link and give us as much information as you can. CLICK HERE FOR REGISTRATION FORM.
2. Purchase our TERA report or submit the equivalent.
3. Purchase our PDR and schedule the consult that is included.
4. THEN we can discuss whether I can be a fact witness, an expert witness, a legal consultant or some combination of those. Note that designating me as an expert witness has its pluses and minuses. As an expert my opinion becomes part of evidence which is good for you usually. But the truth is that most judges put little stock in the opinion of expert witness opinions. Using me as a fact witness makes it far easier to get information into evidence (affidavit or direct testimony) and have it be persuasive to the judge. As a legal consultant my 42 years of trial experience and successes in litigating foreclosures for homeowners put me in a good position to advise on strategy and tactics. (BUT of course there are no guarantees on outcome).
CLICK HERE TO ORDER CONSULT (not if you order PDR)
CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR BASIC or more probably the PDR PLUS, or PDR PREMIUM where time is of the essence)
Note we like to use the analogy of a doctor’s office. Nobody expects a doctor to  give a diagnosis or treatment plan without examination and testing. For some reason people seem to think that a lawyer should be able to give answers on their case without doing the examination or testing or analysis. If you want something more than general information you need to provide us with the real information and hire us to work on it.
Or you can go to www.lendinglies.com for more information.
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