Interesting Conversation With Prospective Client and Attorney

I had an interesting conversation with the lawyer for a prospective client who was interested in either litigation support or using me for expert advice or expert testimony. The lawyer was an experienced litigator. What was good about the conversation is that he voiced up front the basic question that is in the mind of nearly all judges, litigators, homeowners, legislators and regulators. It comes from that presumption that arises in the mind of nearly everyone when they hear about a loan transaction. Their mind instantly focuses on whether the borrower made any payments and if so whether they stopped making payments. It doesn’t occur to anyone to immediately focus on whether there was a loan or if there was any particular reason why payments stopped. And it certainly doesn’t occur to anyone to immediately question whether or not the creditor had received payments —  especially after the borrower admits that he had not made any payments. That is the quintessential case in loans where claims come from the alleged securitization of debt. The answers to these questions are completely counterintuitive. Those answers just don’t make sense unless you know the whole story; even then, it is hard to comprehend why banks would have sacrificed brand names that date back 150 years or more.

And after speaking with him I have concluded that the basic error that is being made by all the people who are affected by this chaotic mortgage crisis is that foreclosure defense consists of finding some technical error by the banks thus defeating their rightful claim to be repaid money they had loaned to the borrower. My answer is that if you are starting from that position it is very hard for me to see anyway that any lawyer for any borrower could do anything more than delay the inevitable.

The lawyer had it right. There wasn’t one case in the country in which a proper assignment had not been enforced. And there were no cases I could give him where the results were to the satisfaction of the client, because I promised the clients that I would not give out even their case number. The lawyer concluded that neither I nor my opinions had any credibility. And yet I continue to help people, and, as can be seen, from comments posted on this blog, many people thank me for helping them save their homes. So what is the problem here? It’s one I have been wrestling with for 7 years.

The lawyer for the client prospect (as expert witness) asked all the right questions but, as most lawyers do, he preceded each question with a statement that could not be controverted. I am sure he is very good at cross examination. He presumes to know even the things he doesn’t know because he was after a result. Despite countless publishing of favorable results in trial, in bankruptcy court and on appeal all reported here and on other media sources and blogs, any really good lawyer is going to have trouble with this. And the reason is that any good attorney wants to reduce the fact pattern down to issues which which there can be no argument. The problem here is that such lawyers do themselves and their clients a disservice, unless they slow down and stop skipping the steps.

The real problem was well stated by this and other lawyers and judges from the bench: how can you really defend any case in which the homeowner accepted the benefits of a loan and then did not pay according to its terms? Why should any court refuse to enforce a valid assignment? Why should the borrower be let off the hook of liability just because there are defects in the documentary trail?

If you drill down, it is very simple: for those who wish to stop inquiring after they see the note, mortgage and payment history of the borrower, there is not much you can do to dissuade them from their preconceived conclusion. It is a fact that the Wall Street banks introduced fraud and complexity on a level never seen before, and therefore spawned a lot of controversy over what to about it. The problem which this lawyer had was that he cannot conceive of a real defense where the borrower stopped paying on an apparently valid debt.

His view is shared by most judges. So the job of the lawyer in foreclosure defense is to address those issues head on, one piece at a time, and to reduce the factual and legal arguments to the simplest components with which nobody could disagree. For example, should the creditor in a loan transaction be allowed to collect more than the amount of the debt? Everyone would agree that should not be allowed. Does it matter who makes the payment on behalf of the borrower as long as it is clear that the payment is for the that particular debt? Everyone would agree that a payment counts against the debt even if someone other than the borrower made that payment.

Does it matter if the loan was granted by a party who used money obtained by defrauding a third party? Bing! That is where the honest discussion can begin because there are multiple potential answers. My answer is that fraud was an intervening factor by an intermediary (investment bank) with apparent authority who violated all the essential terms of their intermediation for the benefit of themselves (the broker dealers/investment banks) and to the detriment of the party whose money was used to fund loans that were not approved by the “lender” (the party who was defrauded — i.e., now referred to as “investor” or “trust beneficiaries”). While there are other possible conclusions, these are actions in equity and the people trying to enforce the fraudulent documents have very dirty hands which is to say, the opposite of “clean hands.”

My answer is that the broker dealers diverted the money and diverted the paperwork to make it look like they were the lenders and to get the proceeds of TARP, insurance, etc. and who are now foreclosing, taking the property too — to the detriment of the investors who would benefit far more by a reasonable workout with the homeowners. There is also an obvious detriment to the homeowner who loses a home without any hope of even speaking with the party whose money was used to fund the origination or acquisition of his loan (and not getting credit for third party payments whose payments may have negated the alleged default or reduced the obligation to one that the borrower can afford).

My answer is that sale of the property without including the investors in the mix is a continuation of the fraud that began when the investors were sold “bond” issued by a Trust that was and remains unfunded and which never had any hope or possibility of paying interest or principal to the investors. But the issue raised by the lawyer is a troublesome one and requires complex arguments as opposed to bullet points. The victim here is clearly the investors who bought bogus mortgage bonds. But he asked another question: how is the homeowner hurt?

My answer that being foreclosed upon by a complete stranger is very damaging didn’t satisfy the homeowner’s lawyer. And in a way, he was right. because in the end, it is still about a loan that the borrower didn’t pay. That is where the complexity comes in. Because the money that was taken out of investor pockets has been restored in whole or in part by third party payments from co-obligors that were not disclosed as part of the borrower’s transaction but now, after the cutoff dates of the Trust instrument, are considered to be part of the deal including the borrower homeowner in the deal the broker dealer made with the investor.

Thus the question becomes this: If you break it down what rights of enforcement exist on (1) the debt, (2) the note and (3) the mortgage or deed of trust? The answer in simple terms is that the likelihood of enforcement on each one of those diminishes the more you drill down.

Start with the debt. It arises simply because legally when you receive money it is either payment, a loan or a gift. Since we know that it is a loan, that means you owe it back to the party who loaned the money. You don’t owe it to the depository bank at which they maintain a demand deposit account and from which they advanced the funds even though that bank is literally the source of the funds. The owner of the account from which the money was advanced to you is the one you owe. The owner of the account in our case is the broker dealer which itself was acting as a depository for investor funds that should have been paid to the trustee for a REMIC trust but was not and never was intended to be sued as such. We know the Pension fund that invested in the bogus mortgage bonds is the actual funding source and there is little disagreement about that. How many conduits or depository institutions were used to channel the money to your closing table is irrelevant. You owe the money to the party whose money ended up in your pocket.

Then the note. The note, as we lawyers were all taught in first year law school, is NOT the debt. It is evidence of the debt. And it is evidence of the agreed terms and the loan contract. And it should be evidence of the loan from the investor to the homeowner. So unless that note names the investor as the payee (or an authorized representative of the investor disclosed to the borrower), the note is evidence of nothing — except the fact that you signed a document that recited facts that were at best wrong and at worst, lies. Lawyers often forget that table-funded loans are one of the main reasons why the Federal Truth in Lending Act was passed — to make sure customers knew the identity of their lender and had choice in the marketplace. So it is no argument, under TILA and Reg Z, to say that it doesn’t make any difference if they lied at the closing table, you lose upon signing the promissory note. And the legal reason for that is because if that were true there would be uncertainty surrounding every loan transaction if it was OK for the closing agent to put a strawman’s name on the note and mortgage instead of the the investor — particularly when the pooling and servicing agreement and prospectus assure the investor that the investor is the one who will be protected by owning the note and being the beneficiary on the deed of trust or mortgagee under the mortgage.

Then the Deed of Trust (non-judicial states): The pattern of conduct that is virtually 100% is that once a loan becomes delinquent and the decision is made that this loan has been chosen for forced sale (foreclosure) the first thing “they” do is change the Trustee on the Deed of trust. Why? Because a real trustee would not take orders from a beneficiary who appears out of nowhere and can produce no proof that they entered into any transaction in which they acquired the Deed of Trust, the note, or the debt. The San Fransisco study showed that 65% of all foreclosures involved “strangers to the transaction.” This meant that a complete stranger named itself as the new beneficiary, named a controlled entity to be the new substitute trustee and then  sold property with the homeowner not being any wiser, because they knew they had not made some payments on their mortgage obligation. So it isn’t enough to say you are the new beneficiary, you should be required to prove it. It is true that many courts are ignoring this requirement, but the number of courts that are allowing this inquiry is increasing every week. And as Judge Hollowell in Arizona pointed out in a CLE seminar, the effects of ignoring these issues is going to result in a mass of title litigation. Yes, it matters.

The test of a good expert witness is not just credentials we some of us have, but also the presentation of facts upon which his opinion rests. That presentation must lead inexorably toward the conclusion that the expert states such that the trier of fact (judge or jury) would have come to the same conclusion if they had all those facts. The opinion is incidental to the presentation of facts. The attempt to boil this down to one or two bullet points begs the question. Wall Street intentionally created more complexity than necessary and more layers than necessary in order to obscure the fact that they were committing fraud on the investors, the insurers, the government, and other third party co-obligors. The typical trial lawyer response is “how do I boil this down to something that is understandable.” The answer, as any lawyer who does complex financial litigation will tell you, is step by step.

53 Responses

  1. Can I get a straight answer from someone on this issue. I filed a complaint with the OCC indicating to them the there is a Cease and Desist Order out there on the Banks to stop Robo Signing. The complaint was both on Wells Fargo and Citi. Citi has responded with a bunch of crap, but in essence this is what they said, “Our records indicate Geraldine A. Belinski is a certified appointed signor for Mortgage Electronic Registration System, Inc.” Background: On my DOT Geraldine Belinski signed the document as the Vice President. My question to this is; Is she signing the document as Vice President of MERS or Citi Mortgage. I did some research on my own and tracked her down. The individual at Citi who answered the phone were she worked indicated that she was not a Vice President but a mere processor. So what I need to know before I draft a response and go over OCC’s head is Can they do that? If she signed the document as Vice President of MERS, can she be employed by Citi? And vice versa, if she signed the Document as Vice President of Citi, can she work for MERS, my thought is that it has to be one or the other and she cannot perform work for MERS as a Citi employee and cannot perform work for Citi as a MERS employee. Pleas keep it simple Im not as smart as some of you so you have to keep it simple. I just need to know before I draft my letters to respond. jsmith5915@msn.com. PS: I know some of you all think that I wont get anywhere, but If I can get this to the right people it could make a difference. I am an Army Officer and I never give up the fight.

  2. Christine

    Agreed.

    And it’s interesting that even NG doesn’t read the blog posts here. If he did, he would address the issues that we have raised here. Probably figures (correctly) that it’s a waste of his time. So what does that tell you about the value of the posts here?

  3. Christine I won a dismissal WITH PREJUDICE as a Pro Se and was able to do the research and gather the irrefutable evidence that allowed me to win based on information provided by LL.

  4. All I could think was this poor homeowner is paying a lawyer who will take their money to basically help the pretender lender foreclose. If a lawyer doesn’t know/care about FC defense they shouldn’t take the case.

  5. The title companies are all too accommodating in rushing the borrower through the closing process and if the borrower ever questions who MERS is, the title company dismisses it as “nothing”. This is because the big title companies are “all in on the scheme”. The less the borrower knows that his signature seals the deal to securitization of his note and conversion of it into an electronic security, the better. None of this is stated on the borrower’s unilateral adhesion contract (the security instrument) which is recorded in the land records of the county that the subject property is located in. Thus, the borrower doesn’t even know that MERS is a “shell” and that the real parties in interest have contractual relationships with MERSCORP Holdings, Inc.! MERSCORP is not stated anywhere in the security instrument, is it? There’s a reason for that. It’s called exposure. Only the “shell” (who is broke and thus judgment-proof) is exposed; thus, unless the attorney litigating against the agent understands the true position of the agent, they won’t understand the tricks being played upon the borrower, the court and the land records. This is why more and more litigants are suing MERSCORP Holdings, Inc.

  6. ***** The lenders liens are stripped from title rendering it free of all encumbrances.

    ***** The estate and its unencumbered equity are used to fund the depositors account

  7. Thus, the theft of the home moves forward because the attorneys argue that the borrower has nothing to do with the assignment into the trust.

    That’s funny! Don’t I see the Borrower’s name on the assignment? Isn’t the security instrument listed on the assignment “together with the note” the Borrower signed? I find it hard to believe that the court systems haven’t figured this out yet!

  8. It appears that MERSCORP members tell their employees to draft assignments from the original lender (even if the original lender is bankrupt) directly to the trustee; thus skipping over the sponsor-seller and the depositor. So instead of the assignments conveying the mortgage and note from the originator (A) to the sponsor-seller (B); and from the sponsor-seller (B) to the depositor (C); and from the depositor (C) to the trustee of the trust (D) … B AND C ARE LEFT OUT of the assignment pattern as mandated by the PSA!

    http://cloudedtitlesblog.com/2014/02/13/mers-related-assignments-psa-non-compliance/

  9. Ed Ofcharsky, the change manager who oversaw the Red Oak Merger and the November 2008 Transactions,
    explained what he meant when he described the assets left behind at CFC and CHL as “toxic” and “bad”:
    Q. Okay. And then at the top you . . . answer the question–“We did not plan to rebrand, as these fall in one of
    three buckets: one, toxic (CFC and CHL),” two, “company in wind-down,” three, “and potential sale (Balboa Re).” So
    with regard to toxic, what were you describing there? A. . . . what was left in CHL after the November transaction
    were loans that we couldn’t get investor consents on. . . . I believe mortgage servicing rights we couldn’t get the
    consents on. And there were past-due loans that . . . legally we couldn’t move over. . . . And kind of classified those,
    just a slang term because it’s past due, kind of call it toxic. Q. And that was your term, “toxic”? A. That’s my term,
    yeah. Oblak Ex. 56 (E. Ofcharsky Dep. Tr., May 18, 2012) at 297:3-298:5.
    Q. Well, was the goal to identify the loans that presented the greatest risk and leave them under the CFC brand? A.
    © 2012 DOAR Privileged and Confid2e9ntial
    No. It was to sequester or to leave the subprime and distressed loans that were 60 days past due, ready to go into
    foreclosure, and leave them with the Countrywide name. Id. at 280:6-12.
    Q. The next sentence says, “Phase I and II were not widely publicized events due to the sensitive nature of the
    activities, separating the good and bad assets.” . . . [W]hat did you mean when you said they “were not widely
    publicized”? . . . A. . . . It was not something that was widely publicized. Q. And . . . in your email here, does “good
    assets” refer to the loans that did transfer as part of the November 7, 2008 transactions? A. There were good
    assets that were there that we couldn’t move because we couldn’t get the consents. And the “bad assets” related
    to, you know, the past due loans, the loans, you know, in default or ready to go to foreclosure. I mean, those
    didn’t get transferred. Q. But your statement here is related to “separating the good and the bad assets.” What
    did you mean by that? A. “Separating” is they didn’t . . . transfer. Bea Ex. 17 (E. Ofcharsky FGIC Dep. Tr., Oct. 19, 2012) at 179:19-

  10. JG… the depo you posted was Excellent! I giggled a few times!

  11. The lenders liens are stripped from title rendering it free of all encumbrances.
    The estate and its unencumbered equity are used to fund the depositors account

  12. elexquisitor – I may have this wrong, but this is how I see it: the transfer of a note takes (adequate) consideration, long and short. A promise to pay can be and is seen as consideration. However, the transferee who pays with a promise to pay is only a hidc to the extent of actual payment. If I buy a 1k note and give you 100.00 cash (or a clunker) and give you an IOU for the rest, I’m a hidc as to the 100.00 and a mere holder to the 900. As to the 900, I’m subject to all available affirmative defenses out of the note maker, whereas I’m not as to the 100.00 I paid.

    If you have a note for 1k and you use it for collateral, the party who took it as collateral has a security interest and is supposed to be paid if the note is paid off and you can’t sell it til you pay off the debt. But, if I were dumb enough to let you use the note as collateral for a loan from me without taking poss of the note, you might be able to sell it to someone who may become a hidc if he took it with no notice of the (mine) lien on it (“without knowledge of another claim to the instrument”). That’s my understanding of the stinky UCC. So if Joe blow has a note there’s a lien on (basically), it’s poss he can transfer it to someone who may take it free of that claim. Some people say a transferee may not succeed to a higher interest than the transferor had, but I think that might not be the case, esp if crooks are involved. Today, though, I’d say there’s no one in that act who wouldn’t know the loan was pledged or owed elsewhere, so scratch the “without knowledge”, even if, say, an AIG claims to not have known at one time when, it seems to me, it insured notes subject to the claims of others and or that the insured had no skin in the game.
    And no one who takes a note known to be in default is a hidc, which means none of the trusts taking them just now by “MERS” assignments is a hidc. So they can all read our long lists of affirmative defenses. All we need is one to stand up to avoid dismissal.
    more lay opinions

  13. Now, of course, this ought to really, really open up the job situation.

    Who are your representatives/senators whose salaries you keep dutifully paying? Income taxes, anyone?

    http://www.huffingtonpost.com/2014/02/13/comcast-time-warner_n_4778175.html

  14. “Preconceived or drilled down from years of reading LL?”

    All I’m asking is for winners to come forward on Garfield’s theories. Extremely reasonable request. Hell, no one would buy a car without checking it out first. No one would buy a house without doing a walk-through. What’s so unreasonable about my asking for winners breastfed on LL to have a show of hands?

  15. Yesterday I commented about some cases in WA, and one of them was Klem. In Klem, KLem had been apptd guardian of an elderly woman who had to be in a private facility. Klem wanted, long and short, to sell the woman’s home to help pay for her care. QLS refused to stay the f/c sale so that Klem could sell it. QLS sold the home for 1.00 over what it claimed the ben was owed (and those buyers turned around and sold it for like over 100k more). Klem had an offer for around 150k more, but needed more time to close. QLS said the ben had to approve a stay and sent Klem to the alleged ben, who gave Klem the bum’s shuffle – send stuff here, now there, now somewhere else. QLS foreclosed. The WA court held that QLS should have, as a trustee, a substitute judicial figure, stayed the sale of its own volition.
    Because of apparent notary fraud, etc. at QLS, this decision struck me as a yahoo. But, having more time to consider it, I don’t believe I’m so nuts about it today. I don’t mind saying that no one has been more vocal about a trustee’s duty to the other two parties to the dot, the trustor and the ben, not just the ben. But I don’t think the trustee should stay a sale to accomodate a seller sale (basically) of its own volition. It’s a dangerous precedent…who knows what else a dot trustee could decide to do which it isn’t authorized to do? Now, in this case, clearly the seller’s (Klem’s) sale would have netted the seller far more money, so on that basis, it seems the court made a good decision when setting aside the f/c sale. But I think the better decision would have been to do that and find the dot trustee negligent for its failure to contact the beneficiary himself (the trustee shouldn’t have made Klem try to deal with it) , recommend the postponement, and get the ben’s approval, instead of finding the dot trustee negligent for not postponing the f/c sale on his own. I just think it could be a dangerous precedent. Dot trustees do replace the judiciary to some extent, but their power is limited to foreclosure. If the trustee had contacted the ben, and the ben refused to stay the f/c sale to accomodate the seller’s sale, the trustee could refuse to f/c. If the ben got a copy of the purchase contract from the trustee, and still refused to stay the f/c sale, I doubt a court would be impressed.* I believe the trustee could refuse to f/c and be within his rights in his representation of both parties. Clearly the ben was failing to mitigate. There was no reason to cause the homeowner such a loss when either way, the ben would get his, and the ben would have received the interest accruing on the note during the postponement, as would be reflected in its payoff stmt to the buyer’s closing.
    *Klem did send off the purchase contract to the alleged ben, who basically ignored her, and the court was not impressed.

    This case is about a sick and infirm senior citizen and her court-appointed guardian, which of course has some sympathy elements. But I see no legal distinction between any homeowner who wants time and can sell his home (although, actually, there may be a distinction in that this woman had a good deal of equity).
    lay opinions

  16. “Preconceived or drilled down from years of reading LL?”

    Christine, I’ve said it before, and I’ll say it again….many here stay in touch with LL, not necessarily owing to Mr. Garfield, but to the ever changing climate of illegality in America that gets posted by participants. One needs to stay focused on the ever changing crime scene, to see when shifts occur.

    And slamming people for doing so, whatever the reason, is such a waste of time as to make one believe that maybe you are a plant from the shill kingdom. Why on earth would you constantly take the time to berate people here? What’s in it for you? What satisfaction could one possibly get out of berating already down and out borrowers?

    Like I accused tnharry of once….do you spend your days pulling wings off of flies? Magnifying glasses over ants?

  17. When MSM gives such interesting, numbers, I really, really listen and I multiply them by 2… Just to be on the truth side.

    Got passports? Milk by itself ain’t gonna do it anymore…

    China’s doing peachy though. China’s got… Jobs! So are India and Russia.

    Hmmmm…

    http://economy.money.cnn.com/2014/02/10/91-million-americans-arent-looking-for-jobs/http://economy.money.cnn.com/2014/02/10/91-million-americans-arent-looking-for-jobs/

    91 million Americans aren’t looking for jobs

    By Annalyn Kurtz February 10, 2014: 2:20 PM ET

    The unemployment rate isn’t always the best measure of the job market, because it only includes people who have actively searched for work within the last four weeks. Many Americans just aren’t looking for jobs.

    In fact, about 91 million adult Americans don’t work, and aren’t looking for jobs. They make up 37% of the population — the highest level on record since 1978.

    Yes, some of them are workers who’ve been out of a job for so long that they’ve given up entirely.

    But don’t be too alarmed: In addition to discouraged workers, this group also includes people who are retired, enrolled in high school or college, and staying at home to take care of young children or elderly relatives.

    Here is a complete view of the U.S. working-age population, including everyone over age 16.

    [Go take a look. Worth the trip.]

  18. Bob G.,

    Damn it! My threshold of tolerance for duplicity, stupidity and bad faith keeps shrinking by the minute.

    Making good, solid enemies though. D’ya think Gawd will loook upon it as a job well done? ‘Cuz my conscience keeps giving me those “That a girl!” signals. And I sleep like a baby! What say you?

  19. Yeah Bob, tried to mention this early on…I have been here over 4 years. This is continuous…some of us have more decency and class.

  20. “they only keep coming here only because they believe being AWOL on LL will make them… what? Stupid? Losers”?

    And the reason you still come here is? Drum Roll……..oh enlighten us losers as you know a loser when you see one, because??????? It takes one to know one….Ha, Ha, Ha…abuser

    Why your desperation to tell us what you think of us? Hmmm, curious

  21. U R such a cruel woman! U must be a shill for the banx !

  22. Unreal… Still vague as all hell, no specifics, editorialism at its most mediocre and not one case to back up anything.

    “…he voiced up front the basic question that is in the mind of nearly all judges” Such as…?

    “The lawyer for the client prospect (as expert witness) asked all the right questions” Which ones?

    “If you drill down, it is very simple: for those who wish to stop inquiring after they see the note, mortgage and payment history of the borrower, there is not much you can do to dissuade them from their preconceived conclusion.” Preconceived or drilled down from years of reading LL? People hang to what they understand. Garfield lost a great, great majority of people long ago with that securitization crap and they only keep coming here only because they believe being AWOL on LL will make them… what? Stupid? Losers? Not liked by other LL losers?

    “The test of a good expert witness is not just credentials we some of us have, but also the presentation of facts upon which his opinion rests” Proper semantic aside, name cases in which your expertise allowed the presentation of facts leading to… damn it! Shall I say it?…
    leading to… A FRICKIN’ WIN!!!

    Why isn’t one winning lawyer refering to Garfield as an expert and/or asking him to come and testify? Barnes? Levitt? Stopa? Gardner? Doucet? Roland? Babcock? Anyone?

  23. The A Man these banker are all suddenly junking off building or in one case, the guy shot himself 8 times with a nail gun.

    The one thing about this site is that Neil believes that the homeowners got not chance because the payment was not paid, so why have a blog? What the collection of damages for someone who not been damaged? What does an attorney charge to help one get a modification? How does this pay for your practice.

    I got to bounce because I am look to recover real damages!

  24. Tnharry, this illogic flows from the Minnesota Supreme Court decision in Jackson v. MERS, which clearly turns way – old property law on its head, and is a disaster for mortgagors. Anyone even thinking about buying property in MN should see a psychiatrist. There are no protections whatsoever for borrowers. Jackson says (taken from Stein v. Chase):

    “….the Minnesota Supreme Court clearly stated “a party can hold legal title to the [mortgage] without holding an interest in the promissory note.”

    AND:

    “The right to enforce a mortgage through foreclosure by advertisement lies with the legal, rather than equitable, holder of the mortgage.” Stein v. Chase Home Finance, LLC, 662 F.3d 976. 980 (8th Cir. 2011).

    That’s how MN’s running what I’d guess is a similar percentage of dismissals, 100%, as is being questioned in the Washington state recusal deal in Robertson, sorry, can’t find the link but it’s been referenced here recently. Not a single case, to my knowledge, has made it past the federal judges in MN. That’s how they’ve shot Butler down, now at $335K in sanctions, if I remember correctly.

    Now, I don’t have any desire to dredge up the Butler thing again, that’s not my point here. My point is, again, that this is just very bad law, which directly contradicts the US Supreme Court, is so flawed and unfair as to be unconstitutional, at least in my small mind.

    Google any foreclosure case in MN and you’ll see the same thing over and over. It’s a travesty.

  25. Just want to say that when a borrower signed the contract in doing so money wAs put down in many cases and further home upgrades being their investment from the borrowers end and mortgage payments sent in good faith every month. Now that we definitely understand a bit better, our investment was doomed and it was intentional. we know it was a bubble market thanks to hyper inflated appraisals – also well known and the most important single point in inducing a person to sign for a purported loan and its well know it was a hostile market/ bubble market ) because of bloggs like this and our independent resesrch and audits . We have all of this mess in court and outside it , yet to be litigated ( people who bought the wrongfully foreclosed properties not being privy to on going litigation and the risk they were inadvertently exposed to and that they themselves will ultimately have to bear the consequences and hire council if i prevail ) what lead to this scenario wAs nothing less than a travesty of justice which is why the court should stick to the letter of the law, process and procedure is there after a lot of evolution. Who wants to go back to medieval times, which is kinda what is going on lately.
    What im trying to say is that its what they did with the instrument under contract. They dishonored and broke it long before any 90 day missed payments . To have your home taken without due process results in such a mess to have the burden if proof when the documents they submitted should not in fact be relied upon but since we have the Burden of proof at such times the house is easily embezzeled . It takes a colluted effort with parties acting in concerted effort and i can now see it but i have to prove it with evidence – the means and methods the Evidence they submitted, parties involved the irs documents the trustees posture ( s) in the different courts it all tells a story and give rise to a different set of real material facts, or at least show that the record is inavoidably incomplete. So i lost the house and its the long way home to get to the truth if the matter. Step by step i stuck to the rules and used what they did on the record and then presented this on appeal, all the while some one is living totally unaware in my former home enjoying my lost investment.

  26. In NC it is exactly that way, tnharry. You only have to be the “holder” and I mean that literally. Holding a copy in your hand, nothing more…pathetic. Non-judicial shit is what it is!

  27. @tolle – what case is that quote from? it seems to be 180degrees off

  28. How can one possibly get to discovery when (at least in MN) the courts agree that:

    “….a mortgagee need not have an interest in a promissory note to foreclose on a mortgage. Thus, whether Defendants are in possession of the actual promissory note is irrelevant.”

    Given the above pretzel logic, what could possibly stop any MERS member from foreclosing whenever they please? This is a perfect crime, with no witnesses. The borrower is completely defenseless, and the courts are complicit in the crime.

    This is pure bullshit law, and must be stopped. Boil some rope.

  29. Once again Neil shows us why in 5yrs since the crisis because a Nationally known deal before the 2008 Presidential Election. Neil is sure that because the payments were not made that the homeowners automatically the loser no matter what! So we got purchases and refinances that occurred but instead of paying the sellers of the houses, or paying off the debt of a the refinance.

    There are not old lenders in 99% of the cases coming back asking to be paid off and there been a refinance done.

    Here the deal and that is forget what Neil is saying and understand that it should be brought to the court attention that the rightful debt holder if there is one, is not in court asking that the Note is due. If the allege owner of the debt has a receipt of purchase, then they are the owners and if they don’t they are not the lender.

    However in these cases the lenders and borrowers were kept from each other, in determining what exactly was going on. If these loans were truly owned by the lenders then taking a 50% loss today instead of modifying the loan and not taking a loss.

    Its been almost 2yrs since I first wrote in this blog and I believe it was the exact same argument then that Neil had then as now that the homeowner was guilty, so what is that he been winning over the past 7yrs he is talking about? Are modifications winning?

    Flash, there is going to be another settlement and this one larger than the $25 billion one of two years ago, and if does not involve Neil. Some female non attorney won $34 million, and Szymoniak won $18 million and Szymoniak now trying to get a bigger piece of the pie with her recent complaint that the loan are not owned.

    The filing process of this claims is not being adjoined by the government so its not cheap against who they are going against. DocX was the window into party who are not the owners claiming they are, and MERS act on a larger scale than DocX!

  30. Its all hearsay speculation as far as judge goes unless you get into discovery and get your evidence – on the record and allowed to be admitted – into- evidence. Goes for them too – what they exhibited – into evidence is done, get them on this fir starters.

    Not a lawyer not legal advice im pro se

  31. @elex, read better – I’ve been specific about purchase scenarios. if you buy my house you’d better come with something better than a CDO

  32. @tnharry – Why do you constantly mislead people on this forum that only ‘money’ was transferred to a borrower when other financial instruments, such as a Collateralized Debt Obligation (a secured promise to pay) is readily exchanged for real ‘money’? Where’s the ‘money’ if a lender of a new loan pays off the lender of a previous loan with a CDO? ‘Money’ exists in the present, has no risk, and has value today. A promise to pay exists in the future, has risk, and value tomorrow.

    There is an appeal coming up in CA attempting to debunk the stigma of ‘show me the note’ by focusing on the statute regarding payment distribution after a trustee sale where the trustee may require presentation of the original note as evidence of a beneficiary interest in the event the property is not underwater and a surplus exists.

  33. Go for it E….

  34. Speaking of filthy lucre, I got a class action offer this past week on Midland Funding, the nastiest scum-vermin ever to call themselves collectors. The offer said that each participant would get….. “$10 or $500,000.00, whichever is less”.

    Huh? WTF? Yeah, I’ll jump on that offer counselor.

  35. Sam Trapp, aka Crouching Tiger: http://www.trapplawfirm.com/

    It was a bank in IL, some years ago now. Servicing was not sub’d out.

    They caved.

    And because it’s a party, here it comes:

    Make it a Great Day.

  36. No you’re not, Louise. Debt collectors are a nasty bunch and liars.

    Anyone got that case with Ocwen-Litton handy? Love to see it.

  37. “Bury lead counsels house in liens”…..actually criminal in many jurisdictions. And the advice here at livinglies goes from merely bad to dangerous…

    By the way, you can’t quiet title to a lien that was entered into (1) by you, and (2) voluntarily. If you have some other action that was successful and deemed the “loan” paid off or otherwise defended the lien itself, then quiet title may the the correct follow up action. As the sole plan of attack it’s not a great strategy

  38. Courts are still allowing fraud on the court, ex parte meetings w/the judge and forged documents. I have seen it with my own eyes. Seems like there are an awful lot of “original” notes out there. Debt collection law is all about: hey, you owe me $5,000. The answer is: Ok. Prove it with the documents. Not seeing too much of that.

  39. There is a lawyer around here that fought the fought a local bank that held his Mother’s mortgage .. and won. No MERS, no massive goon bullshit OCWEN/LITTON etc.

    Hey I owned a little mortgage biz some years ago – emphatically defended the mortgage brokers position to the tree’s.

    Until it became apparent the servicers are straight clinically retarded and the securitization is/was (ha! past tense cannot imagine why) EVEN WORSE.

    Best advise I have heard is fight fire with fire. Bury lead counsels house in liens. To the moon, stacked to the rafters.

    I was going to mention something about jamming a glock into their vile lying mouths – but I am way above that.

    Or not.

    Make it a Great Day.

  40. Sure you can quiet a title…but what happens when the volume of other owners come back at you? Now, claiming an interest, we have BOA, next, WF, next, Deutsche, ….the list goes on and on!

  41. “As a homeowner fighting foreclosure, the best advice I’ve seen is to pursue a Quiet Title action. It’s about the rightful ownership, not the alleged debt. The bank (or other party) claiming ownership must prove ownership.”

    BWAHAHA!!!!!

    BWAHAHAHAHAHAHAHAHAHAHA!!!!

    Seriously? The view from the bench is somewhat different…..

    “As long as the obligation to pay the debt exists, it is not equitable that the mortgagor should have relief against the mortgage given to secure the same, and such relief can be given only on condition that he discharges the obligation.” (Burns, supra, 149 Cal. at p. 622.) That was the law in 1906, and it is the law today.”

    And that was lost by the borrower on appeal even when “….respondent (Chase) contends the relevant documents do not show respondent has any interest in the property at all.

    The only thing quiet is the sound of the curb the once-homeowner is now sitting on.

  42. I am not an attorney but from here I will say the “There wasn’t a loan” nails it. What happened @ the closing table was a front for a giant scam that has effectively gutted the entire / Never mind. Make it a Great Day.

  43. @Danny – your argument goes more to standing than the existence of a loan. “There wasn’t a loan” just doesn’t work. I can’t tell you how many times I’ve had judges ask the borrower if they had the full purchase price for the property and then say “well you borrowed the money, didn’t you?” Make any of the enforcement, validity, standing arguments you can think of, but “wasn’t a loan” is right up there with “show me the note” on the issue of whether you as the litigant have any credibility in the courtroom. And NG does you a disservice preaching it here.

  44. As A Neil said, “…as Judge Hollowell in Arizona pointed out in a CLE seminar, the effects of ignoring these issues is going to result in a mass of title litigation.”
    As a homeowner fighting foreclosure, the best advice I’ve seen is to pursue a Quiet Title action. It’s about the rightful ownership, not the alleged debt. The bank (or other party) claiming ownership must prove ownership in a Quiet Title action. If they can’t, they lose.

  45. For the guy that thinks “wasn’t a loan”, think again. Money was borrowed but not from the party wanting to collect it. According to tila, the lender in a table funded loan was not the lender and did not divulge were the true source of the funds came from; I think tila indicates there could be treble damages for such activities. A lot of money has been paid for the same loan over and over again by bank bailout, insurance payments, etcetera; not to count the note being sold to several trusts, multiplying the original amount of money paid to the phony lender, that the borrower received. In my opinion, most of these loans have been paid off so why should the buyer keep making payments to an entity that claims to be the lender when they are not. The idea that banks received tax payers bailout with the agreement that they would modify loans when they were not even the lender is unbelievable. The average borrower does not know what hit them, and does not have the funds to pay for an attorney to help them; they can not even talk to the real lender to discuss a modification because they can not find them.

  46. As A Neil said, “…as Judge Hollowell in Arizona pointed out in a CLE seminar, the effects of ignoring these issues is going to result in a mass of title litigation.”
    As a homeowner fighting foreclosure, the best advice I’ve seen is to pursue a Quiet Title action. It’s about the rightful ownership, not the alleged debt. The bank (or other party) claiming ownership must prove ownership. A court c

  47. “where the borrower stopped paying on an apparently valid debt”

    An “apparent” “valid” debt…Is this/it apparent? How so, just the existence of a signature?

    Valid, meaning did the money go for its intended purpose by the party borrowing, or borrowing on our behalf? It matters.

    Using a “parties” information to borrow, does not mean you borrowed…did they refinance an/on the old loan, in your name? Did the originator-closing attorney actually get the funds?

    And when did I get informed about the “real” terms of the contract-loan, making it impossible to remedy any “minor” issues or changes in my financial situation, personal situation or errors by the servicer, where I am forced-pushed into foreclosure?

    Tip of the iceberg here………

    Many questions, Neil!

  48. Neil, how do you square the following statement that you made above:

    “The test of a good expert witness is not just credentials some of us have, but also the presentation of facts upon which his opinion rests.”

    With the FACT that you have persistently failed to prove up your conclusory allegations that no trust bank account ever existed, even though folks here have asked for the proof a number of times?

    And where is the money coming from to make the monthly payments to the investors, custodians, trustees, servicers, etc.? And from whose bank account?

    If the servicer is fronting these expenses, the servicer is getting reimbursed from somebody and somebody’s bank account. So who is that somebody? Where is the proof that there never was nor is a trust bank account?

    Until you can provide the answers to the above, your expert witness services will not experience the demand that they otherwise would deserve.

  49. still with the “wasn’t a loan” nonsense Neil? that starting point has done more harm to this crusade than any other. unless you’re dealing with a refi situation, how do you truly maintain that position in a purchase scenario? On Monday Mr Smith did not own 123 Main Street and did not have $500k in his pocket, and on Wednesday he owned 123 Main St and didn’t win the lottery in the meantime. He used another person’s money to buy the house. THERE WAS A LOAN.

    Now, whether Bank A has the authority to foreclose 5 years down the road based upon a number of missteps along the way is another matter altogether and where the focus should be.

    Bad mouth the lazy, corrupt judges and lawyers all you want, but the “wasn’t a loan” argument, especially in a purchase situation but one could also argue in a refi, can be defeated by a logical 5 year old child.

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