Theory vs Fact and What to do About It in Court

NOTICE: The information contained on this blog is based upon fact when stated as fact and theory when stated as theory. We are well aware that the facts presented on this blog are contrary to the facts as presented by mainstream media,  the executive branch of government and even the judicial branch of government.  We do not consider anything to be fact unless it is corroborated in at least three ways.  Some of the information is based upon extensive interviews with industry insiders who have shared information based upon a promise of anonymity. Some of the information is based upon intensive research into specific companies and specific people including the hiring of investigative services. Some of the information is based upon personal knowledge of Neil Garfield during his tenure on Wall Street and in his investment banking activities related to the trading of commercial and residential real estate. All fact patterns presented as true in this blog are additionally subjected to the test of logic and the presence or absence of a contrary explanation.

THE TRUE NARRATIVE OF SECURITIZATION

Think about it. When the bond sells or is repurchased, what happens to the loans. The bond “derives” its value from the loans (hence “derivative”). So if you sell the bond you have sold a share of the underlying loans, right? Wrong — but only wrong if you believe the spin from Wall Street, and the Federal Reserve cover for quantitative easing (expansion of the money supply not required by demand caused by increased economic activity). Otherwise you would be entirely correct.

If you buy a share of General Motors you can’t claim direct ownership over the cars and equipment. That is because GM is a corporation. A corporation is a valid “legal fiction”. When you create a corporation you are creating a legal person. Now let’s suppose you give your broker the money to buy a share of General Motors, does that give the broker to claim ownership over your investment? Of course not — with one major glaring exception. The exception is that securities are often held in”street name” rather than titled to you as the buyer. You can always demand that the stock certificate be issued in your name, but if you don’t then it will be held in the name of the brokerage house that executed the transaction for you. So on paper it looks like the share of GM is titled to the brokerage house and not you. It is standard practice and there is nothing wrong with it in theory until you take away accountability for malfeasance.

Before brokers were allowed to incorporate, the owners or partners were individually liable for everything that happened in the brokerage company. So they were not likely to claim your security held in street name as their own. In fact, the paper crash in the late 19060’s was directly related to the fact that the securities held in street name did not match up with the statements of investors who had accounts with the brokerage houses who screwed up the paperwork so badly, that some firms crashed and to this day there are unresolved certificates in which the identity of the actual owner is unknown.

And if they sold your share of GM, the proceeds were supposed to be yours. In the yesteryear of Wall Street rules they would only execute a sell of your share of GM if you ordered it. It can be fairly stated that the reason why the financial system broke down is that brokers had nothing stopping them from claiming ownership over the investors money (thus stealing both the money and the identity of the investor) and nothing stopping them from claiming ownership over a loan that was issued by a borrower and used by the broker to sell, trade and profit from exotic securities using the investors’ money without accounting to either the investor or the borrower (or the regulators) of the details of such trades.

Today it is still supposed to be true that the brokers are “honest” intermediaries just like your commercial bank that handles your checking account, but as it turns out neither the investment banks nor the commercial bank have a culture of caring for or about their customers or depositors. The system has broken down.

And so the moral hazard of having corporations managed by officers who are not likely to go to jail or go bankrupt when the system of gambling with customer money goes bad, they suffer nothing. They get paid bonuses for any upside event but they never feel the pain when things go bad. Back “in the day” there were three things stopping bankers from defrauding the public: personal responsibility, agency regulation and industry pressure from peers who feared the public would stop doing business with them if it became known that their deposits were being “managed” in ways most people could not be true.

Now we can return to the question of what is the legal result of a transfer of a mortgage backed bond. You have given the brokerage house the money to buy the bond (let’s say you are a pension fund). The brokerage house should have given your money to the “legal person” that issues or owns the bond. So if you are the first buyer of the bond, then the money should go to the trustee of the New York common law trust (REMIC) that issues the bond to you — except that it is in reality issued in “street name” — I.e., in the name of the brokerage house. This is contrary to the intent of the prospectus and PSA given to investors but it is left intentionally vague as to  whether this path is legally mandated. The courts are all caught up in the paperwork instead of looking at the actual transactions and matching those transactions with common law principles that have been presumptively true for centuries.

The 1998 law exempts mortgage back bonds from being called securities so it could be argued that they should not be issued in street name, a process applicable to securities trading. Without the devices of “Selling Forward” (selling what you don’t have — yet) and issuing ownership in “Street name” it would have been very difficult for any of this mayhem to have grown to such pornographic proportions.

NOW HERE IS WHERE THE CRIME STARTED: No trust agreement was ever created, so this gave the bankers wiggle room in case they wanted to avoid trust law. The creation of the trust is said to be in the PSA and prospectus and one could be implied from the wording, but it is difficult in plain language to confirm the intent to create a trust. Nonetheless it became part of Wall Street parlance to refer tot he special purpose vehicles qualifying for special tax treatment under REMIC statutes as “trusts.”

No bond was issued in most cases. The bond issued by the “trust” in reality was merely notated on the books of the investment banking brokerage. Nearly all bonds therefore have no paper certificate even available (called non certificated). The “private label” bonds are so full of legal holes that they could not hold air, much less water.

No money was given to the trustee or the trust. No assets were deposited into the trust. The trust never acquired or originated any loans because it didn’t pay for them. It didn’t pay for them because it had no money to pay for them. The money you gave to purchase a bond never went to the trustee or the trust. In fact the trustee failed to start a file on your “trust” and therefore never assigned it to their trust department. The trustee also never started a depository account for the trust. It would have been named “XYZ Bank in trust for ABC trust”. That never happened except when they were piloting the scheme that become the largest Economic crime in human history.

Banks diverted your money from the trust into their own pockets. Without telling you, they put the money into a commingled undifferentiated account. The notation was made that the investor was credited with the purchase of one bond but the bond was never issued and the trust didn’t get the money so there was no deal or transaction between you and the trust. You gave the brokerage firm your money for the bond but you never got the bond. The issuance of the bond from the trust was a fiction perpetrated by the brokerage house. Since neither the trustee nor the trust had any records nor an account where your money could be deposited, it never came into legal existence, but more importantly it lacked the funds to buy or originate residential mortgage loans.

Money was controlled by the investment banks, not the trusts or the trustees. That money was sitting in the the brokerage account along with thousands of investors who thought they were buying millions of bonds in thousands of trusts. Having voluntarily ignored the existence of the allegedly existing trust, it doesn’t matter whether the trust did or did not exist because it was never funded and therefore was a nullity. In reality, the investors were not owners of a trust or beneficiaries of a trust, they were common law general partners in a scheme that rocked the world.

From the start the money chain never matched the paperwork. The brokerage house wired money to the depository account (checking account) of the closing agent (usually a title agent) “on the ground” who also received closing papers from Great Loans, Inc. (not a real name, but represents the “originators” as they came to be called whose name showed up on all the settlement papers and disclosures required for a real estate closing with a “lender). The payee on the note and the mortgagee on the mortgage was named “lender” even though they had never made a loan.

Donald Duck was your lender. The entire lender side of the closing was fictitious. The originators were not just naked nominees, they were fictitious nominees for a fictitious lender who was never disclosed. Under Reg Z and TILA this is a “table funded loan” and it is illegal because the borrower, by law, is required to be given information about the identity of his lender and all the fees, commissions and other compensation paid to various parties.

The investment bank owes the borrower all of its compensation, plus treble damages, attorney fees and costs. A table funded loan is one in which the borrower is deprived of the choice guaranteed by the Federal Truth in Lending Act. It is defined as “predatory per se” which means that all you need to show is that the closing parties, including the closing agent, engaged in a pattern of conduct in which the identity of the real lender was withheld.

Terms of payment and repayment were never disclosed to the lenders and never disclosed to the borrowers. The borrower is also supposed to know, as part of the disclosures of compensation, the terms of repayment. In this case the prospectus and PSA disclose a repayment scheme that makes you, the investor, a co-obligor on repaying your own investment. This is because the terms of the “bond” clearly state that the brokerage house can pay the interest or principal on your investment out of your own funds. That provision is used by the FBI in thousands of PONZI scheme investigations as a red flag for the presence of fraud.

The Terms of the loan were never disclosed to the investor or the buyer. The behavior of the banks can only be considered as legal or excusable if the enabling language existed to allow trading using your money as an investor/depositor/lender. The behavior of the banks does not match up with either the paper trail or the money trail of actual transactions.

AND HERE IS WHERE IT GETS INTERESTING. The closing agent knows they got money not from the originator and not even from the party that later claims to have made the loan. But they go ahead anyway, issue worthless title insurance, and they close the loan, distributing money as stated in the closing settlement papers; but what is not disclosed in the closing settlement papers is that the terms of repayment for the bond are different from the terms of repayment on the note. And another thing not disclosed is what happened to your money that was supposedly invested in the purchase of a bond payable by a “trust” that didn’t have the money to originate or acquire loans because the brokerage house never tendered it to the trust. The trustee knew it was playing a part in a fictional play and the only thing they were interested in was getting their paycheck for pretending to be the trustee, when in fact there was no trust account, no trust assets, and no bond actually issued by the trust.

The Secret Yield Spread Premium in which the banks stole part of your money when you gave them money to buy into mortgage bundles immediately reduced the amount invested to a level that guaranteed that you would never be repaid. Many different types of loans were made this way. In fact, 96% of all loans made during the mortgage meltdown period were initiated this way. The brokerage house had an affiliated company that was called an aggregator. The aggregator would collect up all the loans that were REPORTEDLY closed, whether they really closed or not. This information came from the loan originator who in effect was billing for services rendered: pretending to be a lender at a closing I which it had no interest. The collection of loans included as many toxic loans as could be found because on average, the collection of loans would have a higher expected interest rate than without the toxic loans. Toxic loans (loans that are known will die in default) carry a very high rate of interest even if the first payment is a teaser payment of one-tenth the amount of the actual augment of principal and interest that would ordinarily apply, and which was applied later when the loans were foreclosed.

The undisclosed yield spread premium is certainly due back to the borrower with treble damages under current law. An investment carrying a higher rate of return usually is worth more on the open market than one with a lower rate of return — assuming the risk on both is comparable. The brokerage house managed to use its influence and money to get the rating agencies to say that these collections of mortgages (bundles) were “investment grade” securities (forgetting that the 1998 law exempted these bonds as “securities”). So for example, let’s take your investment and see what happened. The brokerage house pretended to report that your money had gone into the trust which we already know did not happen. The interest rate of return you were expecting from the highest grade “investment securities” was lower than the average rate of return on investments on average. After all you knew the risk was zero, so the return is lower.

PLAIN LANGUAGE: Brokers took a part of your investment money and created a fictitious transaction in which they always made a large profit (15%-30%). The brokerage house took the bundle of loans created by the aggregator with an inflated rate of return caused by including toxic mortgages with 15% interest rates, and SOLD those loans to itself in “street name” for fair market value which was inflated because of the toxic loans being part of the package. Yes, that is right. The brokerage house created a fictional transaction in which it pretended the bonds were issued and then sold the bundle of mortgages at a fictions profit. They sold the mortgages to themselves and then booked the transaction as a “proprietary trading” profit which is one of many pieces of compensation that was never disclosed to the borrower.

Under law that compensation is due back to the borrower along with treble damages, interest, and all other payments plus attorney fees and costs. The proprietary trading profit reported by the banks was fictional just as all the other elements of the transaction were fictional. It is called a yield spread premium which is the difference in the fair market value of the same loan at two different interest rates. YSPs are common at ground level with the borrower and his mortgage broker etc., but never before present in any large scale operation up at the lender level, where you are, since you have given the brokerage house money to execute a transaction, to wit: purchase mortgage backed bond from a particular trust.

WHAT HAPPENED TO TITLE? It was defective from the start. Neither the originator nor MERS or anyone else had an actual interest in the proceeds of payments on that mortgage. They were just play-acting. But here in the real world they got away with playing with real money (so far). If your money had gone into the trust with the trustee managing the trust assets (because there were trust assets), then the name of the trust should have been placed on the note as payee because the trust made the loan. And the name of the trust should have been on the mortgage as mortgagee or beneficiary under a deed of trust because the trust made the loan. Instead, the brokerage firms set up an elaborate maze of companies under cover or sponsorship from the big banks all pretending to be trading a loan for which both the note and mortgage were known to be defective.

And then the banks claimed to have taken a loss on the bonds (never issued to begin with) for which they were richly rewarded by receiving payments of insurance and credit default swaps, bailout and of course the Federal Reserve program of buying $85 billion PER MONTH in bonds that the Board of Governors knows were never issued from a trust that never existed. And instead of giving you your money back with interest they said “see, there is the huge loss on these bonds and the underlying loans” and they to,d you to eat the loss. But you responded with “Hey. I gave you money to buy those bonds. You were my agent. I don’t care how complex the exotic maze, if you were the agent who took my money then you were the agent who diverted my money and then said it is all the same thing. You brokers owe me my money back.

Meanwhile the aggregators who are really the same brokerage companies are being sued by Fannie, Freddie, investors and other state and federal agencies for selling worthless paper whose value dropped to pennies on the dollar despite the value of the underlying mortgages. And the aggregators are being forced to buy back the crap they sold. So we have the trust, the trustee and you, the investor who never had any investment of value, and the instrument you were supposed to get (mortgage backed bonds) paid off in a dozen different ways.

Which leaves you with the question of every investor in these bogus bonds. What is the value or even the utility of a worthless bond which even if it had been real, has already been aid off? How can the note provisions survive to be enforced on a debt that has been paid off several times over? Why are courts allowing lawsuits, including Foreclosures, on bogus claims where the creditor, the alleged lender, and the alleged trustee of the issuer have no interest in the outcome of litigation and have given warning to all Servicers NOT to use their names in the foreclosure suits — because they have no trust account, they have no account receivable, they have no bond receivable and they have no note receivable?

And why are the courts ignoring the fact that even if the bonds were real, the Federal Reserve now owns most of them. The short answer is that nothing happens to the bond or the loan because they were never connected the way they were supposed to be. The signature of the borrower did not give rise to any debt. The loan from the brokerage house did not give rise to any debt because the broker got paid. And if the principal debt was extinguished at the loan closing (most cases) or after the loan closing, there is no amount due. And even if the insurance and other payments were not enough to any off the loans, the receipt of even one nickel should have reduced the amount due to you the investor and you would have expected a nickel less from the borrower.

HBC,FNMA.OB,FMCC.OB,BAC,JPM,

RBS | Tue, Aug 6

HSBC faces $1.6B payout over mortgage bonds    • HSBC (HBC) faces having to pay $1.6B in a lawsuit from the Federal Housing Finance Agency over soured mortgage bonds that the bank sold to Fannie Mae (FNMA.OB) and Freddie Mac (FMCC.OB). The bank made the disclosure yesterday.    • The figure is well above the $900M that analysts at Credit Suisse had estimated.    • In total the FHFA has sued 18 banks over mortgage bonds; should HSBC’s calculations for its liabilities be applied to some of the defendants with the largest exposure, including Bank of America (BAC), JPMorgan (JPM) and RBS (RBS), they would have to pay over $7B each. Should these banks make payments in proportion with a recent UBS deal, the bill would above $4B.

Full Story: http://seekingalpha.com/currents/post/1194872?source=ipadportfolioapp

83 Responses

  1. http://www.nakedcapitalism.com/2013/08/calling-all-california-lawyers-and-others-who-want-to-help-abused-homeowners-please-ask-california-court-of-appeal-to-publish-an-important-pro-borrower-chain-of-title-ruling.html#yA2a1YDm1WQKEWI9.99

    08/08/2013 – Yves Smith
    The Examiner (hat tip April Charney)

    !! GET A LETTER IN !!

    Glaski v. Bank of America

    The opinion is unpublished. That means other litigants typically cannot cite it in briefs

    However, interested parties have until August 20, 2013 to submit a request for publication to the court.

    very strict procedure for how to to this

    this post tells you everything you need to do (even names and addresses of everyone who needs to get a letter, a form for the proofs of service) and even provides a sample letter.

  2. NG, you said in your August 2nd post:
    ” We have the same banks representing to regulatory authorities and insurers that it is the bank and not the trust that owns the loan…..”

    You must know I’m hot on this since I’ve brought it up numerous times. I hope you’ll pursue proving that the banks alleged an insurable interest (or AIG insured uninsurable interests against its regulatory scheme and against its shareholders interests). I think that the fact that AIG waived subrogation qualifies as some kind of evidence that AIG knew that the investors already had security interests or someone come up with a better one for why AIG waived subrogation: WHY did AIG waive subrogation? And how has an entity which waived subrogation managed to pay back some 85 billion (or more?) of our anti-moral-hazard government’s largess?
    Hmmmm……..

    AIG’s high on May 1, 2007 was 72.97. On March 2, 2009, it’s low
    was .33.
    During that time, on Sept 3, 2008, it opened at 22.58. By Sept 16, two weeks later, its low was 2.10. a drop (without a calculator) of around
    90%.
    AIG went from 72.97 to .33. Nice play for some puts, options, what-nots. Hard to believe this wasn’t predictable given that AIG was insuring “bags of shyt” (wasn’t that what that one muck called those loans?) It’s trading around 48.00 today. Damn, Jim! (.33 to 47.97)

    Why haven’t shareholders, in at say 50.00 before the big bang, screamed bloody murder about their shares going to .33, no doubt at least partially and significantly as a result of waiving subrogation?? (or have they and I got stoned and missed it?) I really think this “AIG waived subrogation” is an errantly overlooked issue. And it’s judicially noticeable imo. But, it makes a big difference WHEN the waiver occurred. I swear it was from the get-go because the investors had insurable interests, but I just can’t remember. Well, either way, no one who approved the AIG bailout was sqwauking that AIG had insured non-insurable interests, right?

    Neil, you covered this AIG business here::

    https://livinglies.wordpress.com/2010/07/01/aig-waived-rights-in-bailout-no-subrogation/

    From your article, I see that AIG had to make some ‘concessions’ (like pay 100% to the banksters on their claims, unlike Chrysler, apparently, whose creditors were to eat the shortage) and basically forget about nailing the banksters for the quality of the loans. But quality isn’t the issue here: WHO owned the insurable interest is, as is why (when) AIG waived subrogation. There is no way in heaven or hell if the investors either owned the loans or had security interests, that (100%) payout doesn’t belong to them. There’s no way in heaven or hell that payment to someone with an insurable interest doesn’t impact the note maker’s obligation, even if that interest is that of an indentured party.
    The only way the investors could NOT be owed those funds is if they neither owned the loans nor had security interests. The only way that can be true is if they bought the production but not the well and had only a right to payments made by the borrower. imo.
    Neil, can’t you learn more about this? And is it possible that AIG also insured loans which were already guaranteed by one of the GSE’s? What? AIG only insured jumbo loans and the worst of the worst?
    (And can anyone remind me who was that jacka$$ who said it’s a moral imperative that homeowners (basically) get no relief from their
    (alleged) contracts?)

    What I don’t remember is if AIG waived subrogation from the get-go or if the government who used our money to bail them out forced them to shine it. And how would that be again? Shareholders vote
    on that deal? Yes? No? The govt interferred with shareholders’
    rights? The government forced AIG to abandon its regulatory
    mandates? (least I would think the matter of subrogation would be regulated / mandated as to a publicly traded insurer)
    ‘Insurable-interest insurance’ made by an AIG is something we can get at and is judicially noticeable. If the banksters had insurable interests, it certainly supports a contention which could become “widely known”: the trusts didn’t own the loans. Whoop one might say, because some courts don’t give a hoot when a loan was or is transferred.to a trust. Courts can be made to care when it becomes clear that the loans weren’t transferred, are only being transferred in general post-default, and the true laws applicable to those facts are applied.

  3. Here is caption of Hsh v. Barclays

    SUPREME COURT OF THE STATE OF NEW YORK
    COUNTY OF NEW YORK
    HSH NORDBANK AG; HSH NORDBANK AG,
    LUXEMBOURG BRANCH; POSEIDON
    FUNDING LTD.; HSH NORDBANK
    SECURITIES S.A., and CARRERA CAPITAL
    FINANCE LIMITED,
    Plaintiffs,
    -against-
    BARCLAYS BANK PLC; BARCLAYS
    CAPITAL INC.; SUTTON FUNDING LLC and
    SECURITIZED ASSET BACKED
    RECEIVABLES LLC,
    Defendants.
    Index No. 652678/2011
    CONSOLIDATED COMPLAINT

  4. re. that LA article:

    …Deutsche Bank officials maintained from the outset that prosecutors were going after “the wrong party.”

    Hmmmm…yet when you get a “3 Day Notice To Quit” after the foreclosure sale, the bottom of the paper says “Deutsche” is now the “owner”…

  5. This one, Louise:

    http://forum.woodenboat.com/showthread.php?86759-Federal-judge-tells-trust-to-show-clear-mortgage-documentation-in-foreclosures

    John Gallagher, a Deutsche Bank spokesman in New York, said the Frankfurt, Germany-based Deutsche Bank would not comment in detail on the ruling involving its trust arm, which had depended on a separate servicer to litigate the foreclosures.
    “The function of the trustee is largely an administrative one; the trust company has no ownership stake or beneficial interest in the underlying loans of a securitization, nor is it responsible for foreclosures or selling foreclosed property,” Gallagher told The Associated Press in an e-mail.

  6. Go to Secty of State website and see if they have a company and address for service of process in your state. Very easy. Also, Google it. Wells Fargo Bank Service of Process, for example, Georgia.

  7. @louise
    You mean the one I posted on Neil’s post about Glaski?

    Here is an article about how Deutsche “settled” in Los Angeles a month ago—admitting nothing…of course:

    http://www.latimes.com/news/local/la-me-bank-settlement-20130701,0,1864960.story?track=rss

    …Deutsche Bank officials maintained from the outset that prosecutors were going after “the wrong party.”

    “As we have repeatedly advised the Los Angeles city attorney’s office, loan servicers, and not Deutsche Bank as trustee, are contractually responsible for both the maintenance of foreclosed properties and any actions taken with respect to tenants of foreclosed properties,” spokesman John Gallagher said in a statement in 2011.

    Bank officials said in a statement Friday: “We are pleased that we could bring together the relevant parties to help facilitate a resolution…. The settlement will be paid by the servicers responsible for the Los Angeles properties at issue and by the securitization trusts that hold the properties.”

    In the settlement, Deutsche Bank did not admit “any liability or wrongdoing” and continues to dispute the city’s claims, the statement read…

  8. E, I got a settlement which, in itself, is rather miraculous. Of course, I am underwater and sued them again for breach of contract. The new servicer said I had to do a HAMP mod and my settlement agreement was not going to be honored. Just went to court today and judge did not like my complaint and said I can file an amended complaint within 30 days.

  9. The Smith request, pursuant to FRE 201(b),(d) and Disabled Rights Action Committee v. Las Vegas Events, Inc., 375 F.3d 861, 866, fn.1 (9 Cir. 2004)(judicial notice taken of the records of state agencies and other undisputed matters of public record), that this Court take judicial notice of the following:…………….

    Appellees DONALD Smith and Helen Smith (hereafter
    “Smiths”) request that this Court take judicial notice pursuant to Federal Rule of Evidence (hereafter “FRE”) 201(b),(d) and In re Heritage Bond Litigation, 546 F.3d 667, 670, fn. 1 (9th Cir. 2008)(judicial notice taken of court records) of the following facts:…….

    “It is becoming increasingly common for courts to take judicial notice of factual information found on the world wide web. See O’Toole v. Northrup Grumman Corp., 499 F.3d 1218, 1225 (district court abused its discretion in not taking judicial notice of company’s earnings history from website). Accordingly, pursuant to FRE 201(b)(d), the Smiths seek judicial notice of:……………”

    PROPOSED ORDER GRANTING APPELLEES’ REQUEST FOR JUDICIAL NOTICE

    Upon consideration of the Appellees’ Request for Judicial Notice, this Court approves Appellees’ Request and Orders that Judicial Notice be taken of the matters contained in Appellees’ Request.

  10. Bob G., sorry about the confusion….that was a direct quote from Levitin’s website, and he screwed the pooch on that sentence.

  11. In some states where the sol is 6 years, it’s only 4 years for debt
    collectors.

  12. Carie, I tried Googling the name, etc., but that particular article does not come up regarding Deutsche Bank and Gallagher. Gee, I wonder why?

  13. C, What was the full name and number of your cases? What state were they filed in?

  14. E. T. … you have this backwards. The mortgage follows the note. ASF meme…”the mortgage follows the note, meaning that a transfer of the mortgage effects a transfer of the note.” you are inconsistent in a single sentence. Assigning the mortgage does not assign the note. Indorsing and negotiating the note creates an assignment of the mortgage in some states.

    What Levitin says is irrelevant to the tasks at hand. (He also stated in writing that the RMBS trusts were subject to the Trust Indenture Act of 1939. In a telephone opinion, the SEC said that they are not. I pointed that out to him and he acknowledged that he was in error.)

    The only thing that matters is what an appellate court says the facts and the law are…not what Levitin thinks they should be (even though he may have better reasoning than the courts).

    You also said “What this all boils down to, at least from my perspective, is, 1) the trusts are universally non-existent and therefore none of these foreclosures can be maintained legally.” I agree but not based on your paragraph preceding that statement. Your conclusion, while it may be valid, does not logically follow from your previous paragraph.

    What we may end up with here are “constructive trusts” since the trust indentures may be deemed to have failed.

    I pretty much agree with the rest of your post from that point on, fwiw. Except that the investors may not be made whole, because the statutes of limitations on these suits are running out.

  15. carie@2:39 – it’s never a fact in evidence that an action to enforce a note and dot may be brought in the name of/by the secn trust trustee. Whether or not it seems logical that a trustee could (and I have to concede it does), it isn’t yet a fact in evidence. imo. For all we, and thus courts, know, another entity may be designated in a PSA to enforce those notes and dots. I have never seen a PSA which authorizes a trustee to enforce, so neither have I seen one where the enforcement duty is accepted by a secn trustee, who must again imo have accepted that duty / authority to have it. fwiw Could a NT trust trustee be the “default enforcer”? Got me, but I doubt it because I think
    the trustee had to specifically accept that obligation. I mean, if I set up a trust for my kids and you, carie, are the trustee and the trust involves notes and dots (and unquestionably not derivatives of notes and dots),
    are you compelled to enforce the notes and dots on behalf of the beneficiaries?
    If the investors funds weren’t used to fund the loans, but the investors paid for the loans which weren’t in fact transferred, I still believe what the investors have is security interests in the loans (UCC provision) and the banksters are using security interest provisions of the UCC to game their enforcement by the trusts with all those ramifications I’ve alleged. This might actually be possible (legit) were these not these particular trusts.

  16. carie,
    Good blast from the past re: Lan Pham. I had forgotten about that. As E. Tolle says, the fraud is virtually unstoppable at this point.

  17. “Author: Matthew D. Weidner, Esq.
    Years ago I filed a lawsuit on behalf of an out of state corporation client. The opposing attorney filed a motion to dismiss because the corporation I was suing on behalf of was not registered with the Florida Secretary of State. Fast forward to now when I’m building my practice on defending homeowners in foreclosure and the “failure to register motion to dismiss” * issue is back…in a big way. ”

    Wow, Mr. Weidner. That’s the info we’ve been looking for! NOT! Might have been had you expounded.

    So, I give, what happened in that case where opposing counsel filed a mtn to dismiss the complaint of your non-registered foreign corporate client? And the issue of a non-registered party is back?! Well, my man, it never left. A non-registered foreign entity is either allowed as a matter of law to sue (and be sued) in the state of non-registration where it’s trying to or it isn’t. There are laws on the books which give answers, finite ones, to this issue. We (including me) just haven’t taken the time to explore the statutes and rules: what are each state’s laws about non-registered foreign entities capacity to sue?
    First of all, states, I think, look to whether or not a business is “doing business” in its state (states at least do this to determine registration requirements). Foreign corporations often don’t register with a particular state which is not their “home state” so they can avoid licensing and taxes. But then, to bring suit to resolve a conflict where resolution is necessary in that venue/state, while claiming they don’t do business in that state, they yet seek to avail themselves of the jurisdiction of that state’s courts, which imo is or should be reserved for its citizens. Had a foreign corporation registered and paid taxes like the rest of us, it would qualify as “citizen”. I’m not offering any answers here, mostly because I’m not in position right now to research it, Just pointing to the fact that we allow unregistered foreign corporations to attack us without knowing if we could holler about it.

    But I think I can say this: If one in CA, say, got a loan from a business in DE, say, but there were no contact in CA other than by phone or email, the law may hold that the DE corp wasn’t doing business in CA!
    But I find that problematic because, to me, that DE corp needed a lending license in CA (where the property and borrower are) and it couldn’t get that (I think) without registering with the CA SoS. If that’s true, did the guy in CA actually get a loan from a group of DE individuals (not a corporation) for lack of the corporate registration (and licensing) in CA?

  18. Right on, E.Tolle. Of course, we all remember how Dr. Lan Pham was fired from the CBO for even suggesting that there was a serious “problem” with the MBS’s:

    http://www.democraticunderground.com/11168631

    “…Specifically, Pham wrote repeatedly about banking and mortgage issues in October 2010, when issues of foreclosure fraud and robo-signing were first coming to light in the mainstream. “I was repeatedly pressured by the CBO Assistant Director, Deborah Lucas, in charge of the Financial Analysis Division not to write nor discuss issues in the banking sector and mortgage markets that might suggest weakness in these sectors and their consequences on the economy and households,” Pham alleges. Lucas sought to keep Pham’s writing out of the assessments of economic growth that CBO makes, and to suppress any public writing about the impact of mass foreclosures and the housing collapse…”

  19. There’s the E. Tolle we know and love! Any links to that Temple Law white paper? I searched online (admittedly a cursory search) to no avail so far. I would love to read it.

    As always, you are spot-on in your analysis, Tolle. Not only that, but entertaining to read. Might as well laugh on our way into oblivion.

  20. This goes more to the issue of non-trusts, as has been argued in this thread. Bob G. said, “Mortgage follows the note, and the note need only be delivered or indorsed.”

    That’s the American Securitization Forum’s meme, where they say that the mortgage follows the note, meaning that a transfer of the mortgage effects a transfer of the note.

    Adam Levitin has blown holes in this thought process repeatedly. He writes (originally about the NJ Kemp case):

    “ Now here’s the real kicker: there’s no reason to think that the Kemp note was a unique, one-off problem. All evidence from actual foreclosure cases points to the lack of a chain of endorsements on the Kemp note being not the exception, but the rule, and not just for Countrywide, but industry-wide. Certainly on the non-delivery point (separate from the non-endorsement problem), Countrywide admitted that non-delivery was “customary.” If either of these issues, non-delivery or non-endorsement is widespread, then I think we’ve got a massive problem in our financial system.

    ~snip~

    ”Federal bank regulators should be all over this; there is monstrous systemic risk potential. The new Financial Stability Oversight Counsel, as well as the OCC and the Fed and FDIC should all be doing very targeted examinations of the large trustee banks’ collateral files to grasp the scope of the problem. I don’t know what they’re actually doing, but I’m afraid that they aren’t undertaking the proper investigation. Fortunately, this particular issue is easily within the expertise of bank regulators: just go to the collateral files and start looking at a large sample of notes. See how many are missing complete chains of endorsement or lack signatures altogether. That will be a very quick way to tell if there is a problem.

    I’m also very concerned that some banks might decide to start filing in chains of endorsement and backdating. But that’s fraudulent, you protest! Surely no bank would ever engage in fraud! Of course backdating signatures is fraudulent, but if the signatures aren’t there, the banks are dead, so there’s really no downside in having some underlings fill in their signatures. If caught there likelihood of jail time is low. Why not bet the farm? Bank regulators should be very sensitive to this potential problem. They should insist on being the ones who actually select the collateral files to be reviewed and that they are the ones who pull the actual note out of the file. The examiners should be making digital images of all notes that they review and keeping those for potential examination against the actual notes if those notes are produced in future foreclosure cases.
    My concern here is that the bank regulators so badly don’t want for there to be a problem that they won’t look at the notes in the hopes that this issue goes away. I hope that they are sensible enough to know that if there is a problem, they cannot prevent it, and would do best by gathering up all the information they can.”

    A couple of years ago, Temple Law released a white paper that was distributed to courts nationwide. To paraphrase from memory, they ended up stating that judges should rule, whenever possible, in favor of the banks. If that’s not possible, they should rule for the borrower, but without prejudice, and thus allowing the banks to get their shit together for another attack. Their reasoning being that the financial system can’t take the onslaught that would occur otherwise.
    This coincides perfectly with what Barofsky said about Geithner’s view from the top, that it’s the regulator’s job to lengthen the foreclosure process out, giving the banks time to heal (at the expense of millions of once homeowners).

    What this all boils down to, at least from my perspective, is, 1) the trusts are universally non-existent and therefore none of these foreclosures can be maintained legally, 2) everyone and their uncle in D.C. and Wall Street know the extent of these problems, from the administration to the Treasury to the Fed and to the IRS, and they are all unwilling to risk blowing up their universe and thus turning in their $4k suits to actually work for a living, and 3) there’s simply no possibility of winning against this machine, as it’s proven itself to be self-serving and self perpetuating at any and all cost.

    The above also explains 1) robo-signing (on the borrower’s side) and those acts being allowed and condoned from on-high to rip-off millions of Americans with no repercussions for the criminal acts, and, 2) the proliferation of new suits in the $Billions against the so-called securitizers of these empty trusts (on the investor’s side), as more and more courts are being jammed with new RMBS suits each week.

    Just sit back and expect more of the same. I have no doubt that investors will be made somewhat whole, and laws will be passed (or yet more regulatory sleight of hand like the the AG’s and the IFR debacle) that allows the criminality against the once-homeowners to be ordained yet further.

    Taking it to the streets is the only way this will be resolved in a light favorable to the populace. And the same admin and agencies have been dress rehearsing for that scene for quite some time. All things equal, it won’t be equal, as they have all the force. But we will have the people, if in fact they’ll ever get up off their asses to complain.

  21. hkon

    private mail me at Livlies2013@gmail.com

  22. ok way to take the wind out of my bing mad sails…I get what you are saying…but you see the trouble I have had trying to pick a lawyer. I have had other dealings with attorneys, a trust case, and a motor vehicle accident and I really have nothing good to say about any lawyer I have come into contact with. I love the idea of what you propose, talk about a win win…wish you were in my area…I will use the time I have trying to find a lawyer that is interested in such a deal. Thank you for not taking my heated words personally and telling me to go screw myself…I appreciate your answer.

  23. E. Tolle…not interested in the ultralite invitation. There’s no percentage in it. The potential negatives far outweigh the positives.

    Who cares about Don’s spelling of his last name? Does it really matter? You made the point…he was fooling himself about his capabilities.

    Look, i’ve been doing this for over 20 years. I know how the system works. I have no delusions. But that’s the point….I have no delusions.

    I never complain about losing a motion or case. Shit happens…ya just gotta deal with it.

  24. eggs

    I don’t have a lot of time to deal with this stuff right now. Suffice to say in my neck of the woods, the judges are getting it and are very fair. Further, it has been my experience over the years, that judges around here get a real kick out of seeing a pro se litigant tie up a bunch of arrogant, narcissistic lawyers in their underwear.

    Re HSH. Go read the law memo in support of dismissal. Barclay’s lawyers correctly point out that a mortgage assignment is not necessary to convey a mortgage to the trust. Mortgage follows the note, and the note need only be delivered or indorsed. It need not be recorded or assigned (you can’t assign a note, it must be indorsed). Mortgages are assigned, not indorsed. Barclays has the high ground. That’s why they haven’t filed an answer yet.

  25. Well bob the brilliant
    Im just doing the best i can with what ive got. Your critique is just lovely.
    I bet your s gety popular guy

  26. hkon

    First of all, I have interests, not a profession. Secondly, I try to behave ethically and truthfully in all my dealings. There are so many ways to end up in jail these days, that the straight and narrow is the best course. You want to be able to live within your skin comfortably, and look at yourself in the mirror every day without being repulsed. Of course the folks who did all this are at the core, sociopaths so they have no compunction about acting badly.

    Nothing to be sorry about. You wouldn’t want me within 100 meters of your house with a hammer in my hand. When it comes to contractor or handyman stuff, I’m a fish out of water. Have zero aptitude or ability. I’m actually quite dangerous to myself and those around me whenever I try to “fix” something around the house.

    Anyway, don’t feel that they singled you out. They also screwed, blued and tatooed the major insurance companies, Fannie, Freddie, FHA. The Fed Reserve, Pension Funds, Sovereign Funds, and other banks, to include the Federal Home Loan Banks. The homeowner was just low hanging fruit. The aforementioned entities were higher up the tree, but bore much more fruit obtainable with much less effort.

    BTW, if you think that I didn’t get financially slammed by this meltdown, think again. I’m just a survivor type, determined to make lemonade out of lemons. And way back around 2003, I got Bernie Madoffed, by a company called Derivium Capital. Lost millions. But it was my fault, I learned some good lessons, and I moved on.

    You are getting ripped off by your lawyers. That’s pretty outrageous. I don’t understand why these guys and the banksters do this kind of stuff. If you follow the news, people are getting poison letters, shot and blowed up real good…for doing absolutely nothing. Why give folks a reason to do it to you? Makes no sense.

    hkon, let me tell you how i operate, and i suggest you and others in the same situation consider it.

    I’ll go to a homeowner or get referred to one who is in foreclosure or is about to be. First question i ask is, is there any equity in the house? If there’s equity, I can’t really help them. Too many crooks have gotten into the game, so that the govies have passed Home Equity Theft Prevention acts. If there’s no equity then, like I said before, I aim to create it with my own skill set. The other question I ask is their lender a portfolio lender, or a securitizer. If it’s the former, I pass.

    Ok, so then I say since there is no equity in the house, are you willing to deed me a fifty percent interest in the house? See, if they paid $300K for the house, with a $300K mortgage, and the house is now only worth $200K, then if we win, there is $200K to split. They get $100K, and I get $100K . That’s $100K more than each of us will get if they end up losing the case on their own.

    It is also very helpful if they, or some lawyer, hasn’t put in an Answer. That’s because they invariably screw it up with admissions against interest and are clueless about counterclaims that can be assigned to me.

    So what i’m suggesting is that you guys find some REALLY SHARP ATTORNEYS that know this stuff cold, and try to interest them in the same kind of deal, as long as there is no equity in you house.

    Just my 2 cents.

    So

  27. Bob G., you have an open invitation to my place where I’ll strap you into my ultralite after coaching you with my best advice on how to take off and fly. It can be boiled down to “apply full throttle”, and “gently pull back the stick” and eventually, simply, “land”, although this info may appear to be sorely lacking once you’re in the air. As a matter of fact, you may find it quite a bit more difficult than that, maybe even impossible to keep from screwing this aircraft into the ground, but do try your best. In return, I’ll promise not to deride you at your funeral.

    Btw, it’s Don Quixote, not Don Quiote. And if you’ve ever read the masterpiece you’ll know that even though Quixote was fooling himself about his capabilities, he always gave it his best, even when facing terrible odds and being the laughing stock. Because often in life, that’s the best one can do.

  28. Bob G,
    I hope you are the most brilliant pro se litigant ever. I really do. I wish you the best of luck. Sounds like you know what you’re doing. But other people also know what they’re doing, lawyers and pro se litigants included. And they lose, lose, lose. It sounds like your legal maneuvering ought to work and cause you to win the case, but I have a feeling that you are in for a big surprise. I have a feeling that all you are really doing is making it slightly more difficult for the judge to rule against you, and he (or she) and his (or her) clerks will just have work just a little bit harder to dismiss your claims with prejudice. After all, that is what they are predisposed to do, in every case, no matter who is litigating before them.

    And here is another teachable moment: judges can do whatever they want, including not following the law. They do it all the time, and there are never any repercussions for it. Even if you appeal, they can still do what they want, including issuing a not-for-publication decision that is a sentence or two saying that they agree with the lower court with no further explanation. I would think that if you are in fact a pro se litigant and do in fact have as good a handle as you say on the rules of civil procedure as well as a brilliant, exit-sealing strategy, all judges would be that much more inclined to rule against you. Because they can’t have the public winning at all, much less winning without expensive attorneys.

    Re HSH: we all know that a complaint is not to be taken as proof by a court. I’m not saying that it is or should be. But HSH surely has some of those high IQ lawyers with years of experience you talked about, and they don’t go into court with a complaint that is based on nothing. In fact, the HSH complaint points out that they sampled public records and found no assignments. I doubt they just stated that without actually having the results of their sample in written form, ready to submit to the court if they didn’t already submit it with the complaint. The fact that Barclays has held up the litigation in its infancy for a year only shows how terrified Barclays is of this complaint.

    And you’re right, there will be a settlement. Or HSH will lose. And those are the two options that likely face you. I hope you get a kickass settlement, I really do. Because experience shows us that it’s either that (with nondisclosure), or you lose—not because you should or didn’t play chess, but because they can’t have homeowners winning, particularly when those homeowners have laid bare the fraud involved.

  29. I want to thank you guys for totally ignoring my post. Really helpful. Bob G. can I just ask you one question? Was this a massive fraud by people who “think outside the box” that gave us no chance to play? I mean I get that we are all simpletons who do not have the slightest clue how to play this game called LAW that people who “think outside the box” invented to keep people like us from actually getting justice. But there in is the nut so to speak isn’t it? we were either frauded or we weren’t and it all really doesn’t matter because the vast majority of us did not go to college and learn how this game is played and we are naive enough to think that being right is something that will help us. Sorry we are all too dumb to figure out the maze that is the U. S. Court system. Sorry that we maybe do not have all day to go and sit and read stuff at the county clerk’s office and think outside the box. I am sorry I couldn’t see that this massive fraud was going to kill my company when the shtf (General Contractor). And I am really sorry that My first Lawyer screwed me in BK when he said ” ok now if you want me to file and adversarial I am going to need 25,000 upfront even though you have been paying me 1,000 a month like we agreed and I know you do not have 25,000 and I am changing the rules in the middle of the game. I am sorry that Philip Kramer got his ass handed to him after he took another 5,000 from me that I really could have used elsewhere. So just so we are clear, we got f***** but it doesn’t matter because there is no honesty in the world and especially in your profession. NICE…

  30. Bob, throw me an email would you…computer was down and lost some emails…BTW: spot on with your analogy…off here for the same reasons. No free lunch, the work and time MUST be put in!

  31. @Bob G. and anyone else interested.
    Intangible Payment Obligations(look at the chart(s)).

  32. N, how right you are. The servicers, debt collectors just keep creating debt out of nothing, and people who do not know any better pay these creeps. Read the FDCPA and you will see that the debt collectors violate the law every day of the week.

  33. @eggs…HSH v. Barclays case.

    You will never see Barclays “lose” this case. If it looks like they are, there will be an in chambers conference, whereby the judge will tell Barclays that they should really “consider settling the case.” The case will then be settled and the record and settlement will be sealed.

    Why? Well imagine what would happen not only to Barclays, but to all the other banksters if a decision came down finding for HSH. That would be game over for the banksters.

    Not going to happen.

  34. Debra…i wasn’t directing the second half of my post below specifically to you. The “you” i was referring to was the general population of posters here.

  35. Critical Thinking Skills, Debra.

    You cite the U.S. v. BOA suit announced today and say “the tide may be turning.” I just went through this in my post below. Apparently I didn’t make myself clear.

    You guys have to stop seeing, hearing, thinking what you WANT TO SEE, HEAR AND THINK, and start seeing, hearing and thinking what really is.

    There is absolutely NOTHING, and I mean NOTHING, in that suit that is going to help anyone here. The suit alleges that BOA defrauded investors about the quality of the loans. It does not say the loans never made it to the trust.

    So tell me how BOA defrauding investors about loan quality helps anyone here? PLEASE TELL ME, AS I’M DYING TO KNOW !

    I think that I am going to give up posting here. It’s like trying to communicate to a concrete wall or to 7 year old children. Has anyone here thought that maybe you lost your job and/or house because you lack critical thinking skills? I swear that there aren’t too many people here that I would hire for any job that required a minimum IQ of 110.

    You go into court lacking critical thinking skills, and an ability to think logically several moves ahead, and then you are surprised when you lose the case and your house.

    It is pointless to complain about the System if you lack inductive and deductive reasoning skills. They are mandatory, not optional. The judges are looking at the facts and law that you present, and comparing them to the facts and law that the bank presents, and making a rational probabilistic judgment based on the competing presentations. And so you lose, because you don’t possess the necessary skill sets that would allow you to win. And NG can’t provide those for you. He can only provide you with a bow and arrows. Your job is to learn how to use them.

    Sorry to be so harsh, but you are engaged in a Darwinian fight.

  36. seriously that’s 8/6/13 (though it will take while 8/6/19 for me to finish what they started more than likely.

  37. like your lesson Bob
    been playing chess for 4 years. I had no idea it was chequers, thought they were playing poka. we shall see over time.
    guys- go checkSTOP forclosure fraud DOJ sues bowels of America, for defrauding investors in 850 million mbs. 8/6/19 tide may be turning similar suits follow

  38. Donna…CO is a nonjudicial state. When u get a NOD in a nonjudicial state, you need to bring an action against the bank, so as to become a plaintiff and get into court. Otherwise, you’re screwed, as far as I can determine.

  39. This is all well and good. What happens when you are NEVER given the chance to even be heard in court?? We were never given a hearing to show our proof of fraud! In two different courts. they just kep closing the case! We had no due process rights and now have gone out of the statute of limitations. Colorado screwed us and knew it all along. We’ve now lost our property and were never given a chance to save it. ever.

  40. @ eggs…okay, I just read the HSH v. Barclays Complaint.

    Here is a teachable moment. Reading the allegations of a plaintiff’s complaint proves absolutely NOTHING. And, of course this is how (unintentional) misinformation gets pro se litigants in serious trouble, as they run into court trying to prove that the notes never made it into the trusts, based on some plaintiff’s allegations.

    In over a year, Barclays has never even put in an Answer to the Complaint, because they are still arguing over a pre-answer motion to dismiss, based on an assortment of Barclays defenses to include statute of limitations and German law, as well as pointing our in their Memorandum of Law in support of their M2Dismiss how the plaintiff’s allegations conflate mortgages with mortgage loans.

    You guys have to start employing critical thinking skills if you want to win your cases. Period. Go rent the movie “Paper Chase” and study it carefully, particularly where John Huston, the law prof, tells the incoming students that “he is going to teach them to think like lawyers.” You have to learn to think like lawyers. That means you go to a nearby law school’s bookstore, and buy some books on civil procedure, discovery, evidence, etc., etc.

    You are not going to walk in off the street and beat lawyers who practice this stuff day in and day out. They have fairly high IQs, and have been practicing for decades. And they have lots of resources that you don’t have. In essence, you are a little league pitcher trying to strike out Babe Ruth.

    Yesterday I spent 6 hours at the county clerk’s office reading foreclosure complaints and the defendants’ answers thereto. Some were pro se, in which their “Answer” consisted of a letter to the judge saying that they were trying to work things out with their lender. That’s not an Answer. So they will be finished via a default judgment in short order. (by the way, there were plenty of letters to the judge complaining that the defendants were told they were in a loan mod program by the banks, and paid the banks $30K+ to reinstate, only to have the servicer later tell them they really didn’t qualify for a loan mod.

    Furthermore, there were a number of Answers filed by attys for the debtor, where the attys either admitted all the plaintiff’s claims about the note and mortgage, or denied on information and belief. (not sufficient to defeat a motion for summary judgment.) There wasn’t a single atty prepped Answer that I would have submitted. All they were doing is buying a couple of months or so for the homeowner, and billing them heavily for it (net zero or minus for the homeowner.) Not a single discovery notice filed, and many of the complaints never even included a copy of the note, or where they did include it, there was no allonge indorsement.

    And when an atty did file an Answer for the homeowner, the foreclosure mill/ bank hired a well known local “gunslinger” atty who has no trouble gunning down his atty opponents, and does it on a regular basis. Why? because this is what he specializes in, whereas the atty for the homeowner is just a general practitioner, who might have been the homeowner’s family atty. There’s lots of money in this for the gunslinger, but not much in it for the family lawyer, so the outcome is pretty much predetermined.

    (However, this is the same gunslinger atty that was hired to go up against me in two 4closure cases by JPM. And because of my litigation tactics and subject matter knowledge, he knows that something is not quite right. He opposed my motion to intervene a couple of months ago (homeowner deeded me half the house that presently has no equity (i’m going to create the equity)). I won the motion and now am in as a party defendant, with all the rights thereto. I also had the homeowners assign their counterclaims to me, so I’m in that way as well. So now I’m in the process of quietly sealing off all the exits on this guy. And by the time he realizes what happened…it will be too late. And so I will take him out in the first action by showing the court clear and convincing fraud. This will prep the judge for the second action. (same judge) By this time the judge will know that JPM has altered and filed false docs with his court, and will be predisposed to slam JPM.

    Litigation is a chess game: but most of the 4closure mill guys (to include gunslinger), come prepared only to play checkers.

    So it gets very discouraging when I read this blog, and somebody posts something that has been taken out of context, or upon further analysis doesn’t purport to be what the poster thought it to be. But by that time, everybody here starts cheering everybody else on and they hop on their horses and, like Don Quiote, attempt to ride off in all directions at once.

    Learn the game.

    Thus endeth the lesson.

  41. @ Neidermeyer…Credit card cases are the easiest to bust up, even if it’s the bank that is suing you rather than a JDB. All CC purchases are “securitized” virtually the moment they occur. So the bank already got paid by the trust.

  42. @ Eggs…Tough break. That’s why you need to appeal this stuff. I once had a case similar to yours. Judge ignored facts and law, and ruled in favor of the title company. Guess what? I threatened to appeal and the title company gave me $20K not to appeal and to go away. I did. And the state judge? He now sits on the federal bench. Go figure.

    Also, can u provide the docket info or case info on the HSH v. Barclays case? Thanx.

  43. @ Christine….you are still not making any sense. And the reason is, you are parroting, and you don’t know what you are talking about (as usual).

  44. Let me try that again. I have been reading this blog for years now and I rarely post, but I am now going into the dragon’s lair and I am frustrated by the back and forth on this site. I think most of us here understand that the banks did a massive wrong to us but the fact is that you will most likely lose in court before the merits of your case ever get brought into the light of day simply because the knowledge of how to get to that point is so hard to come by. I have filed pro per and cannot even get the simplest answer of how do I notice HSBC and Wells. Is the corporate address the place to go with? Can I just send the notice to the lawyers that have been fighting me since my first bk? What do I need to do to get ready for my case management meeting? The answers to these questions would not be legal advice would they? I think we would all be in a better position if more people felt empowered to go to court and fight but it is daunting as the simplest rules violation or mistake can kill you. Christine, I applaud your stance on the non-disclosure, and I hope if I get to that point, (a HUGE if I know), then I hope I have the guts to say no as well. But I need to get to that point. BTW I have been in foreclosure for almost 5 yrs. now, I have gotten my sale date postponed too many times to count and I am on my last legs here and I am way out of my depth. I will go down swinging tho and any help as far as just knowing when to do what would probably make a big difference. I know I should get an attorney but it is not possible and besides I have been burned by three now so I probably wouldn’t get one even if I could.

  45. I

  46. Here’s how we know Neil’s “theories” about securitization are correct. Below are quotes from complaint in the HSH v. Barclays case. They show that Neil is correct–the notes never made it to the trusts.

    “3. Through investigation of a large sample of publicly recorded mortgage
    documents, Plaintiffs have discovered that more than 99% of the mortgages in each of the three Securitizations were improperly or never assigned. In particular, many of these mortgages remain in the name of the loan’s originator or its nominee, and have never been assigned to the Trusts. While others were purportedly assigned to the Trusts, this was long after the securities were issued, contrary to the representations in the Offering Documents. Similarly, the promissory notes were not properly assigned in approximately 81.9% of the sampled loans.

    4. The failure to timely assign mortgages to a RMBS trust hinders the trust’s ability to foreclose on the collateral –i.e., the mortgaged property – in the event of a borrower default. “

  47. Christine,
    I wish it were true that, as you say, “facts matter.” They do in real life, but not in court. At least, that has been the case almost completely across the board, until very, very recently.

    You shared a personal story, so I will share one of mine. I have shared it before here on the site, so forgive me if you’ve heard it before. For the entirety of my litigation with Bank of America, they relied on a note with no endorsement, yet their claim was that Fannie Mae was the “investor” in my note. As we all know here, Fannie Mae/Freddie Mac/private trusts cannot–by statutory, UCC-3 definition of negotiation—hold or own notes without an endorsement. So when Bank of America moved for summary judgment and not only didn’t bother to include an endorsed note as evidence, they in fact presented affidavits from two of the defendants that the unendorsed note was “true and correct.”
    I was overjoyed—I figured that was exactly what they would do, and I said to myself (and my wife) “Now I got ’em.”

    Well, it got down to two weeks before trial and the judge still had not ruled on the MSJ—approx. 4 mos. had gone by. So I filed a motion in limine asking the judge to exclude any endorsed note from trial. I specifically asked the judge to exclude any note, whether original or a copy, with an endorsement or allonge. I noted that they had two affidavits swearing that the unendorsed note was true and correct and that having made their bed, they should therefore be forced to lie (pun intended) in it. Suddenly an endorsed note appeared in their response to my motion—quelle surprise! The judge postponed the trial and said we should have a hearing. An friend of mine who practices in this district told me that in the entire time he’d practiced in it (15 years or so), he’d never once had a summary judgment hearing.

    And this is the good part, which I think backs up my contention that facts don’t matter. At the hearing, the judge came in and said he hadn’t read my brief. So he made me present my side first, during which I essentially read my brief, expanding on it here and there. When I was done, Bank of America’s lawyer got up and said the following: “Your honor, I have not done a very good job of presenting the facts in this case.” He then proceeded to say that he had the original note with him in court and passed around copies to me and the judge.

    Long story short, I lost, even though the BoA lawyer admitted he had done a crappy job by not producing an endorsed note and having two affidavits produced validating the unendorsed note. I have talked to several lawyers across the country about my case because of another aspect of the case, and they have all expressed the sentiment that this should not have happened. Of course it shouldn’t have, but it did.

    And so that’s what I’m saying—the facts and legal theories are meaningless if the judges won’t follow the law. And in my case, the judge didn’t follow the law. Am I bitter about it? Sure. But I’m still fighting the good fight on a few different levels and it hasn’t destroyed me as a person or anything.

  48. Erobobo? Glaski? Cases that have prevailed on Erobobo? In Texas of all places? They all attack the “trust” and by extension, securitization (not).

    The onion is coming undone.

  49. So Cal 7

    Excellent. Deny/discover is my attorney’s MO as well. And Gardner’s. And Barnes’. And McCandless’. And Stopa’s. And Cox’. And all the big players’.

    No argument from me there. NG didn’t reinvent the wheel that was there all along in law school/tort and contract 101. But remember: NG’s big thing is… securitization. That’s his trade mark. And as far as i remember, in the past 5 years, only 2 cases nationwide were won on it: one in Alabama and one in Kansas. And, if i am not mistaken, both were appealed (but i will have to check that to make sure).

  50. Niedermeyer,

    What you are describing is the M.O. of JDBs which, as everyone knows, are pretty much off the radar and appear to do whatever they want to do. Except that, as soon as defendants dispute the debt, they fold and, let’s face it, the only reason they are in business is because 90% of the people don’t dispute the alleged debt.

    There is one big, huge difference in the mortgage scam: government is involved up to its dentures and, even though we know debts was securitized from car and washer-dryer up to mortgage loan, amounts involved and visibility of the accounts make the whole difference.

    I believe that Bob G. is right in asking the question the way he did. Why? Because you can resolve car and washer-dryer out of court and ask the hard questions over the phone; you can hardly do that with a mortgage.

    Heloc’s would qualify as car-washer-dryer loans. Hence the willingness of the banks involved to settle $22,000 for $1,500 (they really, really don’t have the note). First mortgages (pretty much the only ones allowed to foreclose) won’t do it. HAMP, HARP and DeMarco got in the way of a nice, easy cleaning.

    My take on it.

  51. Yes, Christine: Johnson v. HSBC, US Dist. Court, Southern Dist. California, for starters. The entire complaint survived MTD, and was soon settled after. Excellent arguments and allegations, in line with “Deny and discover”.

  52. Bob G.

    You’re thinking way too logically here … we are dealing with the twisted fantasy world or lawyers here .

    Collection rights exist if you believe that they do… even if the underlying security was extinguished.

    This happens every day in the credit card collections biz .. Bank “A” writes off account 1234 ,, it is zero’d out , written off and they take the loss against income to reduce taxes. YET they sell the list of charged off accounts to Dewey Cheatham and Howe for $0.0275 on the dollar as a sale of worthless crap … DC&H treats the steaming pile as “collection rights” and sues little Susie Smith for $1 and not $0.0275… the courts know Susie is being cheated but DC&H is a law firm and the courts smile on law firms as they are filled with lawyers just like them…

    So just click the heals of the ruby slippers together and your title will magically become valid again.

  53. So Cal 7

    “Some of Neil’s core theories (deny debt, discover) have been proven out very well in a number of cases”

    WHICH cases? Can you name a few? Facts are what matters. Facts. Got any?

  54. The comparisons and comments regarding various theories is misplaced. Some of Neil’s core theories (deny debt, discover) have been proven out very well in a number of cases. What he says about the “money” trail is more plausible to me than most other theories. Just look at MF Global and SAC. The practices and attitude towards “OPM” (other people’s money) is endemic within our present institutions of financial “trust”. It’s not the exception, its the rule. MF and SAC just made bad bets and were exposed.

    Much like them Lehman, Bear, Goldman, et al. have and continue to treat investor money as it’s own to control. I also have close relations with senior stock/security “clearing” managers on Wall St. and what I’ve heard from them is scary.

    The larger point is and should be that Neil and a corps of others have been at the tip of the spear in calling out the banks. In my opinion, Neil being foremost among them. I think we owe them a debt of gratitude and appreciation.

    It is a gargantuan task to show that a trust is in fact a Ponzi scheme in an action as a debilitated and stigmatized homeowner, with or without counsel. But, applying the underlying theory as to the acts of the foreclosing entities (not due payments, fabricated assignments with no value transferred, etc.), the questions and ideas as to the true nature of the “Trusts” begins (and has) to form in judicial minds.

    So, I’ll say thanks to you, Neil.

    Also, if any of you have or represent anyone whose loan was in a purported “trust” underwritten by Lehman, I believe you may find the link below very helpful. In it are filings by “Trustees” (a ton of them) in the LBHI CH. 11 which make for very good evidence, if it relates to a mortgage you are disputing. It’s a little tricky to figure out how to search and navigate, but with a bit of diligence, you can discover some gems.

    http://chapter11.epiqsystems.com/LBH/docket/default.aspx?=rc1

    Happy hunting.

  55. Elex,

    I don’t take anything as a personal attack. I understand where you come from and i never said NG was spreading exclusively BS. I do understand that modifications do not always do the trick. i also know of people who got a mod while they had an income (although reduced) and still defaulted because, all of a sudden, both adults lost their jobs. Can’t fix that one after a mod. But, at least, having lost their income, they can go the BK route.

    What I have difficulty with is when people were dissuaded from even trying the mod first. because many of them would still be in the home, had they not listened to bad advice about “the free house”.

    One size doesn’t fit all. Every case is different. I still want NG to show me how what he advocates is done and how well it works. And he talked about being deposed for 5 straight days on one case. Which case? His depo is public record. Why not volunteer the case so we can look it up?

  56. Elex,

    “…winners who have signed a non-disclosure statement in settlement.”

    Let me get this straight. This country is dying under the weight of secrecy at every level of government, Congress, the military, you name it. People know secrecy is the cancer that grows by feeding on everything else. Remove the secrecy and the cancer dies.

    Winners sign non-disclosure. Why? Intimidation. And the fear of losing something already acquired: the willingness of the other party to settle. The fear, mind you. Not the evidence that they will lose if they don’t sign. Just the fear of it.

    I don’t personally know you and it’s makes it difficult for me to give you any info but I’m more than willing to go through Bob G. who knows me and give him the info that will confirm what I’m going to say here.

    2 years ago, i did a job for a school district. I sent my bill. A lousy $824. They didn’t want to pay me, arguing that they had a contract with some outfit name “Data Corp.” whereby they paid only $460 for that kind of work. Never heard of Data Corp. Never contracted with Data Corp. Got a check for $460 from Data Corp, didn’t cash it and… sued the school district. Pro se. They hired the biggest defense firm in OH. They lost on the MSJ. We had a hearing. The judge listened and advised me that Data Corp was a party. I should add them as co-defendant. You don’t go against an advice like that. I added them and amended my complaint, asking for attorney’s fees. We went back before the judge who ordered a mediation. Data Corp (who had taken over the entire defense) made an offer for twice the amount by phone and sent me a release. I refused to sign it BECAUSE there was a unilateral non-disclosure clause. We went to court again. The judge ordered a mediation. The delay added to my claim. Eventually, I did settle WITHOUT any non-disclosure agreement in the release and for… $2600.

    My point is simple: non-disclosure clauses are an intimidation tool that no one has to accept. Personally, i refuse. If they stupid enough to wrong me, they won’t hide it: I won’t allow it. I’d rather renounce the whole thing and go to trial than settle in secrecy. Because you know what? The school district has never pulled that stunt again on anyone.

    Signing non-disclosure agreements is feeding the cancer. I’d always rather go to trial. On the principle of it. Homeowners don’t win because of intimidation they cave in to. If more homeowners took a stand that non-disclosure agreements are unacceptable, we’d be way, way ahead in that battle.

    My take on it. So far, it’s served me well. And… I did lose a JDB lawsuit too. Oh well! Win some, lose some. No secrecy about that either. Intimidation and secrecy are the cancer of this society.

  57. @Bob G.,
    You can see by that explanation that the “note” is fabricated and fake—the “obligation” as you say is UNSECURED—and the supposed “MBS” is a complete fraud and Ponzi.

    @Louise,
    Sorry, I don’t have that email info…I only have the link I posted on the other comment section and links to other articles where the Deutsche spokesman stated those things about trustee’s having no beneficial ownership or stake in the loans. Perhaps you could google the info?

  58. @Christine – I hope you don’t think I’m picking on you but you have raised some excellent issues. Over a year ago in the Hamlet a CA homeowner who lives nearby took my knowledge and sat on it and went for a modification instead. Now he is back with a trustee sale date and wants to litigate. He followed Andelman’s suggestion to pursue modification. To his credit he didn’t know that 40% of modifications fail.

    In terms of his legal options, where is he now as opposed to a year ago? He cannot deny the amount, the loan, or the beneficiary interest because he signed the modification. He can’t even request the return of his note to fight a UD action because he is more likely underwater with his modified loan amount. NG does not state this as concisely, but leaves you with the urge to pursue the non-modification route at least.

  59. @Christine – You asked what you are missing. You are missing the tactics used by winners who have signed a non-disclosure statement in settlement. As are we all.

  60. @Christine – There are no ‘wins’ on securitization for pro se for a couple of reasons, the foremost being the cost to discover the documents to make your points held in evidence by your adversaries. And the judges follow the money since they have no federal agency support to allow exploration of a federally preempted jurisdiction.

    The second is time. How long would it take you and any average pro se to parse through 45 – 90,000 pages of discovery from 4 – 5 parties when your hourly reimbursement rate (attorney fee) is zero? Don’t forget the hours to prep and elicit depositions … you get the picture.

    And lastly, it’s not about the ‘free house’ you might gain, it’s about what the banks will lose if you are successful and expose their vulnerability to others. You, an average citizen, are battling pro se over a few hundred thousand dollars. If exposed, all banksters face a liability of hundreds of thousands of times the value of your home.

    Compare that to the amount of money that actually changed hands in Kennedy’s assassination. Likely yours could be had for much less. You can bet that’s why Holder is only suing BANA for misrepresentation of the quality of the MBSs in question, and not the outright fraud for selling non-existent loans.

    So for now NG is not about to lay out specifics that would raise his demise to the attention and elevation of action by the banksters, only because murder has no statute of limitations and someday we may get a real attorney general who represents the people.

    And after considering all this, we should all have a settlement offer in mind for the price of our non-disclosure. And count our blessings.

  61. Chis, why are you bitching – only 90 percent of the money is created on our backs, the rest is the reserve requirement, lol

    and…

    I did not volunteer my children into SS, even though the hospital refused to release their birth certificates.

  62. Elex,

    If you reread what i wrote, i don’t compare anyone with anyone else.
    All I am saying (and have been for years) is: show us where you get the theories from and how you support them. NG won’t give us anything but long posts with lots of unsubstantiated information. No one fronted anything? Fine. Show me. Nothing made it into any trust? Fine. Show me. Trusts are empty? Fine. Show me.

    Exactly what any judge has been asking so far.

    Any idea why so few homeowners appear to make head ways? If your strategy works, great! I, too, deny everything and so far, I’m not losing. But where are the wins on securitization?

    That’s all I’m saying. Oh… and if you can’t provide them to us on the site, can you at least explain them to someone a little more educated and who still appears to not understand how profound the theories are? Someone who’s been asking exactly like every other homeowner: where are the wins based on those theories?

    Just one win is all i need. Is this too much to ask? Especially when I am in contact day in, day out, with the only person we all know who’s been using them in court (and in every possible jurisdiction, mind you) for… 9 years and doesn’t appear to be singing victory?

    What am i missing?

  63. Elexquisitor, excellent point. Fighting among ourselves is pointless and useless as well as painful to witness or be a participant in. There are many points of view and some are better than others. There are countless other ones I am sure that have not made the light of day yet.

  64. @Christine – I am still here, from 2010. In CA I took the case to discovery, and was stopped by the actions of the court from obtaining admissions that defendants had business records they either bought or sold my loan. I am now preparing an appeal, not so much against defendants’ actions, but against the actions of the court in denying me due process.

    But I got as far as I did by denying who I might owe, what I might owe, and how much I might owe, and had good reason to raise that question when the action was filed. For a lot of homeowners there is now a lot more of those reasons in the public domain than when I started, depending on original lender.

    What is pointless is a comparison of Andelman to NG, and an insistence they ‘debate’ each other. Having us fight amongst ourselves is a tactic that plays right into the hands of the banksters, I suggest you support Andelman on his site, and if you can’t support NG on this site, stop the criticism, but keep presenting the ammunition that both camps can use to battle the banksters.

  65. Bob G.,

    I hope you get the free houses. Once my case is resolved, i may ask you to tell me again how you proceed. It sounded pretty intriguing.

  66. Eggs,

    It is the same Anonymous. Her case is probably more complicated and involved than anyone would venture to imagine and i won’t give specifics: not my place. The fact is, however, that she has used in her own pleadings a lot of what NG is saying. in fact, if you recall, she was going even farther than NG into “no money was ever put up” and i have consistently asked her (and still do) to show me what she based her “gut feeling’ on. It’s a gut feeling until it is supported by… solid documents!

    You said : “As to your first point, the simple premise that Andelman works from is incorrect. I say that because it is well-known that banks do not lend money, they “create” it via the “borrower’s” promissory note. That is to say, the promissory note IS the funding check but is never treated that way. Now, do courts acknowledge that? Of course not, because it would bring the whole financial system to its knees. Doesn’t mean it isn’t true.” That argument reminds me of the current trend which consists in saying: “Individual’s SSN is the value. The minute one obtains a SSN, one has “sold” his value and bank make money out of it.” Might be true. Don’t know. I would want to see the mechanics fully demonstrated to give that any credence.

    This is where I have a lot of difficulty. Stating something like that is one thing and it might BE absolutely true. PROVING it is the real hurdle and, so far, NG hasn’t come up with the proof anyone would need to subscribe to it. Getting a judge interested enough to want to LISTEN to it is even more of a hurdle. And most pro se can’t articulate any of it anyway.

    As far as NG being an attorney and Andelman not being one, I really don’t think it is that important in the big scheme of things: many solid, foreclosure defense attorneys with proven results have poked a lot of fun at those theories. I still have to look at that, with or without a debate with Andelman.

    You said: “Again, the fact that banks create money from nothing on the backs of us lowly “borrowers” is not in dispute.” It is not in dispute in a certain circle of economists who admit also that from a total global worth of $60 trillion, banks and financial institutions worldwide have created $400 trillions worth of speculation. I expect they are right but… using something like that in any foreclosure defense pleading has not helped any homeowner, as far as i know (unless you can cite a case to the contrary).

    I have not attacked the validity of NG’s statements. Ever. For the very simple reason that i do not know, one way or the other and it is not what my own case is based on. What i have consistently denounced is their value in pleadings and encouraging pro se to use them when they have not been tested by the person professing them.

    I think it’s only reasonable. If the person making the statements doesn’t back them up with solid evidence, as far as I am concerned, it’s not worth more than snake oil. One case. just one case. that’s all I’m waiting for.

  67. Carie, do you have the E-mail you referenced by John Gallagher the spokesman for Deutsche Bank? i want to use it in a hearing I have coming up very soon.

  68. that was for Carie

  69. and fraud upon the court. thus far.

  70. Christine,
    The latest articles I have read by Andelman DO basically endorse the bank narrative, particularly the ones on modifications and why he hasn’t written about the Bank of America declarations.

    As to your first point, the simple premise that Andelman works from is incorrect. I say that because it is well-known that banks do not lend money, they “create” it via the “borrower’s” promissory note. That is to say, the promissory note IS the funding check but is never treated that way. Now, do courts acknowledge that? Of course not, because it would bring the whole financial system to its knees. Doesn’t mean it isn’t true.

    So are we supposed to just work within the narrow band of argument that the courts will accept? Possibly, but that doesn’t solve the larger problem. Neil has always stopped short of saying that the money is fictional. He comes so close, but still doesn’t get to the tipping point, which frustrates me. But he comes much closer to the truth than does Andelman, in my opinion.

    Re: modifications…Neil has never, to my knowledge, said anyone shouldn’t take a modification. What he has said repeatedly is that modifications are better for the banks than they are for the homeowners and that modifications on the banks’ terms usually end up re-defaulting and only help clear the title in favor of the bank. This means that modifications are a temporary solution at best, if the bank even deigns to give a homeowner one. Neil has never advocated that anyone is entitled to a “free house,” but least of all a bank.

    To my knowledge, Anonymous always stated that she wasn’t in foreclosure. The Anonymous that I remember specifically stated that she had insider knowledge of the inner workings of the fake securitization game and always took pains to point out that she wasn’t in foreclosure herself. We might be talking about two different “Anonymous” handles. You may know who “Anonymous” is, but I don’t, other than what was posted here under the handle of “Anonymous.” I don’t have any personal knowledge of any “Anonymous” who has been in a lawsuit for 9 years, which would put the start of the case in approx. 2004, before the great foreclosure crisis really got going in a big way.

    NG is not required to debate anyone, especially Andelman. Andelman is not an attorney, NG is. NG has worked on Wall Street, Andelman has not. Andelman is a marketeer by trade. Andelman is very smart, but he does not have the personal, first-hand knowledge that NG has about the economic issues at play here.

    Bill Black’s cohort at the University of Missouri, L. Randall Wray, has co-written articles with Bill Black regarding the foreclosure crisis. Wray is an economist, Black is a lawyer. Wray acknowledges the fact that money is created from nothing. Again, the fact that banks create money from nothing on the backs of us lowly “borrowers” is not in dispute.

    As far as proving his “theories,” NG HAS done that. In the case of HSH v. Barclays, HSH argued exactly what NG does—that no notes were delivered to trusts, and HSH based their assertions in this regard on a sampling of loans. There is no question that NG’s “theories” ARE proven, and are factual. That a court has not acknowledged this only shows that the courts do not follow the law and do not rule on evidence, but on a perceived political mandate to “clear” foreclosures. It does not demonstrate that what NG says is incorrect or not factual.

    I think NG has done what you are suggesting he should do—he got back into practicing law and is currently in the process of putting his “theories” to the test. I think it will become clear sooner rather than later that NG is not to be discounted.

  71. @ Carie…so tell us how you go into court, and make your argument that collection rights exist, while the note doesn’t. Aren’t collection rights the result of an obligation?

    You are trying to argue that the right to collect the monthly payments of principal and interest exist in a vacuum, with no documented obligation on the part of the borrower to make such payments.

    So without a valid note, how can there be a valid right to collect payments due under said note? Explain to me how this argument makes sense to you.

    thank you.

  72. P.S. Whenever a cop gets stopped for DWI in NY, they ALWAYS refuse the breathlyzer test. ‘nuf said.

  73. “When the GSE’s charged off all the notes (after deregulation), only “collection rights” remained.

    These collection rights were SOLD BY GSE’s to THIRD PARTIES.

    Collection rights (because there is no longer a “note”) can only be reported as “INCOME” by the acquirer.

    Therefore, all these REMIC’s that claimed to be removing receivables from on-balance sheets to off-balance sheets—for security “pass-throughs”—were FRAUDULENT.

    This is what the securities fraud is really about.

    As to the borrower, big difference—because the “note” is GONE (and only “collection rights” survive)—and the “debt” is NO LONGER SECURED. It is UNSECURED. Big issue in bankruptcy.

    And, of course, the subprime refinances were (falsely) presented as a “mortgage” refinance—when in fact they were nothing more than COLLECTION RIGHTS MODIFICATION.

    Also, big IRS tax issues involved.

    This is why the financial crisis hit so hard when it did.

    Deregulation allowed financial institutions to get away with it…”

  74. NG’s primary strategy is deny and discover. This works.

    Think of it this way. You go out and have a few drinks. You get stopped at a DWI checkpoint. The cop asks you if you’ve been drinking tonite. Yous say “I just had one.” Bam! You’re done for. The cop now has your admission that you’ve been drinking. Out of the car, and walk or blow. Case closed.

    Now if you say “Nope, I haven’t.” Now there’s a problem for the cop. If you don’t reek of booze or swerving all over the road, he doesn’t have probable cause and the burden of proof is on him.

    And even if you smell of booze or were all over the road, you can still refuse to take the breathlyzer test. Know what happens if NY when you do that? You lose your license for 6 months. But no conviction and no points.

    That’s why you want to deny everything in the complaint. Burden shifts to plaintiff.

  75. a. I don’t think Neil said the trusts made the loans.

    b. your DB exec quote is 5 years old, was not made under oath, and is a mere conclusion of law, that only a court can make.

  76. Neil—sorry, but “the trust” most certainly did NOT “make the loan”. Hogwash.

  77. Here is a good “fact”—straight from the horse’s mouth:

    John Gallagher, a Deutsche Bank spokesman in New York, said the Frankfurt, Germany-based Deutsche Bank would not comment in detail on the ruling involving its trust arm, which had depended on a separate servicer to litigate the foreclosures.
    “The function of the trustee is largely an administrative one; the trust company has no ownership stake or beneficial interest in the underlying loans of a securitization, nor is it responsible for foreclosures or selling foreclosed property,” Gallagher told The Associated Press in an e-mail.
    _________________

    Just wondering—has anyone used those comments in their case?

  78. I think that this was a pretty good post by Neil. I and another are getting traction with some of his stuff. As for the free houses, they’re out there. If you do enough, and you have a fair judge in a judicial state, and you know what you’re doing, the banks appear to want to go away. They don’t want published decisions, they don’t want appellate decisions, and if they fold, they want the record sealed with stips of non-disclosure.

    I’m pretty close to getting a couple of free houses. If I do, the banks are going to want to seal the record and have a stip for nondisclosure. That’s what I want too. I do not want attorneys seeing my work product, nor will the banks.

  79. Zurenarrh, I have to agree with you. I have been in court when the judge tells you that you are not playing with a full deck. BS.

  80. Zur,

    I do not agree with your statement on several counts.

    1) Mandelman does not necessarily accept and endorse the bank narrative. What he does, however, is go back to a very simple premise: someone wanted to move into a house he couldn’t pay for cash and was given the opportunity to do so by contracting a loan. That fact is NOT in question. What is in question is… who put up that money? No matter how sliced, homeowners moved into a property they did not pay for at the onset.

    2) Mandelman does not dispute what NG advances. What he disputes is that theories still unproven and certainly not dug into by any of the government agencies you and I support with OUR money, have not been successful in helping homeowners stay where they live. His approach is: if a modification can help you, let’s do it. On that regard, he has been able to assist many people. NG has, from the get go, waved the “free house” under many different theories that, to this day, have had no traction.

    3) I want to remind you that, of all the people who have come and gone on this site, only one has tested those theories to their limits and is still in that uphill battle you’re referring to: that would be Anonymous. 9 years is a very, very long time to be in court. Most people won’t hold that long and i can promise you that, had Anonymous known what she was up against, she would not have played the cards she played. And she has an attorney. Most people have no attorney and limited understanding of the system, the procedures and eveything that goes into fighting a lawsuit.

    4) NG was given the opportunity to debate Mandelman on the very issues he presents here, once again, as “fact” and/or “theories”. The information contained on this blog is based upon fact when stated as fact and theory when stated as theory.” Things are either “facts” or they are “theories”. Affirming something that is unproven doesn’t make it true, nor does it serve any purpose in court. Quite the contrary.

    Bill Black has already explained the securitization numerous times (and he happens to be of a different caliber from NG), including before Congress. So have big players such as Catherine Austin Fitts and many others. Again, different caliber. It hasn’t made a dent.

    Where people have a lot of difficulty is when NG makes affirmations and even discourages people from accepting a modification they would have been perfectly happy with and which would have prevented entire families from being thrown into the street. As far as I know, nobody has ever said: “Garfield is a liar.” What many have said was: “Prove what you say. Take one case, represent personally the homeowner, go to court and successfully argue what you advance. Then, reasonable people will be willing to listen further.”

    It’s called prudence. Due diligence. And do not omit to mention the interview John Wright (in the midst of foreclosure himself) conducted of Garfield, in which NG stated that his theories were only that and that people should accept a modification if they can. Consistency is what people want to see. Not someone who speaks from both sides of his mouth.

  81. Great video! And what a great article by Neil! This article puts into stark relief why Neil is superior to Andelman in every respect. Andelman accepts the bank narrative and tries to convince us all to work within it, while Neil is actively destroying the banks’ demonstrably false narrative, so he has a much further uphill battle than does Andelman.

    Garfield is often accused of having wild, unproven legal theories that don’t work in court. He is accused of this on his own site! The thing is, his theories are exactly correct and the judges and banks know they can make him look bad by colluding to not lend any credibility to his theories, which is clearly what has been happening. So Garfield is made to seem a kook, when he is precisely the opposite–he is pinpointing the very problem that the banks and judges want to keep concealed, i.e., the fact that the securitization NEVER HAPPENED.

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