The Confusion Over Consideration: If they didn’t pay for it, they have nothing against the property

There have been multiple questions directed at me over the issue of consideration arising from presumptions made about a note and mortgage that appear to be facially valid. Those presumptions are rebuttable and indeed in many cases would be rebutted by the actual facts. That is why asserting the right defenses is so important to set the foundation for discovery.

The cases thrown at me usually relate to adequacy of consideration. Some relate wrongly to Article 3 as to enforcement of the note. I agree that enforcement of the note is easier than enforcement of the mortgage. But that is the point. If they really want the property even a questionable holder of the note might be able to get a civil judgment and that judgment might result in a lien against the property and it might even be foreclosed if the property is not homestead. That is how we protect creditors and property owners. To enforce the mortgage, the claim must be much stronger — it must be filed by a party who actually has the risk of loss because they paid for it.

One case just sent to me is a 2000 case 4th DCA in Florida. Ahmad v Cobb. 762 So 2d 944. The quote I lifted out of that case which was presented to me as though it contradicted my position is the most revealing:

“First, there is no doubt that Ahmad, as the assignee of the Resolution Trust Corporation, owned the rights to the Cobb Corner, Inc. note and mortgage and to the guarantees securing those obligations. He obtained a partial

[762 So.2d 947]

summary judgment which fixed the validity, priority and extent of his debt. Any questions as to the adequacy of the consideration he paid were settled in that ruling.

That is your answer. The time to contest consideration is best done before judgment when you don’t need to prove fraud by clear and convincing evidence. We are also not challenging adequacy of consideration — except that if it recites $10 and other value consideration for a $500,000 loan it casts doubt as to whether the third leg of the stool is actually present — offer, acceptance and consideration. People tend to forget that this is essentially contract law and the contract for loan is no exception to the laws of contract.

We are challenging whether there was any consideration at all because I already know there was none. There couldn’t be. The consideration flowed directly from the investors to the borrower. That is the line of sight of the debt, in most cases.

The closing agent mistakenly or intentionally applied funds from a third party who was not disclosed on the settlement documents. Without receiving any money from the “originator”, the closing agent proceeded to get the signature from the borrower promising to pay the originator when it was a third party who gave the closing agent the funds. If this was a “warehouse loan” in which the originator was borrowing the money with a risk of loss and the liability to pay it back then the originator is a proper party and any assignments from the originator would be valid — if they were supported by consideration. Some loans do fit that criteria but most do not.

I repeat that this is not an attempt to get out of the debt altogether. It is an attack on the note and mortgage because the actual terms of repayment were either never agreed between the investors and the borrowers or are as set forth in the PSA and NOT the note and mortgage.

If the third party (source of funds) is NOT in privity with the originator (which is the structure we are dealing with because the broker dealers wanted to shield themselves from liability for violating fair lending laws) then the closing agent should have obtained instructions from the source of funds as to the application of funds wired into escrow. Anyone who didn’t would be an idiot. But most of them, under that definition would qualify. The closing agent would also be wrong to have demanded the signature of the borrower on documents that (a) did not reveal the source of funds and (b) did not contain all the terms of repayment, as recited in the PSA.

The foreclosure crowd is saying the PSA is irrelevant — but only when it suits them. They are saying that the PSA gives them the authority to proceed with foreclosure but that the terms of the PSA are not relevant. That is crazy, but up until now judges have been buying it because they have not been presented with the fact pattern and legal argument that we are asserting.

In summary, we are saying there was NO CONSIDERATION. We are not attacking adequacy of consideration. I am saying there was no actual transaction between the originator and the borrower and there was no actual transaction between the assignor, indorsor, and the assignee or indorsee. Article 9 of the UCC is clear.

The terms of enforcement of a note govern a looser interpretation of when negotiable paper can be enforced. But the terms of a mortgage cannot be enforced by anyone unless they obtain it for value. Value is consideration. We are saying there wasn’t any consideration. Any decision to the contrary is wrong and can be contested with contrary decisions that are all correct and can be found not only in the public records but in treatises.

And this is absolutely necessary. In a mortgage foreclosure or even attachment, the party seeking the forfeiture must show that this forfeiture is necessary to secure repayment of a debt. It must also show that without this forfeiture, it will suffer a loss. In so doing they establish grounds not only for the foreclosure judgment but also for the foreclosure sale.

As pointed out in the above case, the creditor is the one who submits a creditor’s bid by definition. If the party bringing the action cannot satisfy the elements of a creditor in real money terms, then they are not permitted to bid anything other than cash. Allowing a party who did not acquire the mortgage rights for value would enable strangers to the transaction to acquire property for free, except the costs of litigation. Thus the “free house” argument is specious. It is a distraction from the real facts as to who is getting a free house.

170 Responses

  1. @marilyn lane thank you for your words of wisdom! Every bit of advice helps. It blows my mind to this day that our house was paid off and illegally stolen. Our Judge was corrupt and made an unethical Judgment ignoring the preponderance of evidence and the Rules of Law. My health is failing but I will die trying to get JUSTICE!

  2. Subject: File No. S7-35-11
    From: marilyn h Lane
    Affiliation: concerned individualSeptember 5, 2011
    The abominable banking system that is in place today, gives a bank great incentive to foreclose on an Ultra Vires contract, as the bank demands lawful money returned for the unlawful money lent.
    By what Authority are the Banks doing this? There is no authority for doing this. This is in complete prohibition to Art 1 Para 10 Cl1 of our US Constitution.
    All of our cases with slightly different facts all stem from the same Fraud.
    The Bank did not lend you LAWFUL MONEY but the Bank intentionally wrote
    a bad check and gave it to you –to circulate as money
    I certainly did not know this kind of fraud was going on when I signed my mortgage and note. Did you?
    The Mortgagor puts up a down payment, the Mortgagor pays a lot of fees and probably paid an attorney to represent them, all in order to get this bad check
    Would a Mortgagor have put in all that money, if one knew the truth of how the Banks ran their illegal business. I bet not.
    Did anyone notify you after that big day – the Banks check bounced – of course not. When the check that the Bank wrote came back to the Bank that wrote it, the bank didnt say we only have 5% , if that much and it was not stamped insufficient funds the bank stamped it paid
    So since the Bank did not have the money sitting in the banks account when they wrote the check, what the bank gave you is their credit.
    That is exactly what is prohibited by Art. 1 Para 10 Cl 1 of the US Constitution.
    What authority gives the Bank the right to make contracts with bad checks
    Nothing- Nada.
    Lawful money is needed to make a contract valid.
    Over and Over Mortgagors gave a Bank a mortgage on their castle , in return for a Bank giving you a credit entry on their books and charging you Interest on this credit. Also illegal.
    Did the Bank give you lawful money or is that what you got, credit?
    Banks are not allowed to lend their credit- Banks are in the business to lend
    lawful money There is not a Bank charter that allows a Bank to lend their credit.
    And as we continued to make monthly payments the Bank collected more money on their fraud.
    You try writing a check when you dont have funds sitting in your account to cover it.
    You can be sure that check is coming back markedinsufficient funds You are not allowed to do it and either is a Bank.
    This scam of Ultra Vire contracts caused injury to us, the true homeowners.
    In addition the banks are laundering bad checks.
    The Banks violate Truth in Lending Laws.
    The Banks are collecting Interest on money that doesnt exist. (Lending you 5% and collecting Interest on 95% of thin air)
    And once the Bank gets their Ultra Vire contract going, they start flipping them to MERS, Securitizations , Wall Street, Title Companies etc. there is no shortage of people all wanting to get their piece of the illegal profits.

  3. Origination fraud is how almost every mortgage fraud happened. Just because the banks got away with it for ions doesn’t mean it is legal.

    Passing a red light is done a lot – has it ever become legal?

  4. What about when you have proof of ORIGINATION FRAUD and we paid over $145,000 in 5 years and ZERO was applied? Ch 244 sec 14 was ignored and the banks attorney bought with an INVALID CREDIT BID?

  5. @Guest
    I pressed in the page you supplied and out of curiosity pressed in the light bulb jokes and i knew what i was dealing with. no thank ;you.

  6. @ M.L.
    this is the link to the actual book review webpage:

    http://www.veteranstoday.com/2014/03/20/a-book-every-american-should-read-and-discuss-openly/

    Looks like Brandies & Frankfurter’s real job was spying & sabotage against American Government & justice !!!

  7. @ all

    Prosecuting mortgage fraud not a priority
    ———————————————————-
    press in headline to read more
    Ted Kaufman 12:14 a.m. EDT March 29, 2014
    A couple of weeks ago, most often buried on the inside pages, newspapers ran stories about a Justice Department inspector general’s audit of the department’s efforts to address mortgage fraud. The headline in The New York Times was typical: “U.S. Criticized for Lack of Action on Mortgage Fraud.”

    A better headline might have been “Justice Department Acknowledges that Rich Bankers Who Committed Fraud Won’t Go to Jail.”

  8. @Guest
    All of Brandeis’ years of practicing law led him to believe attorneys do the most good by being a people’s lawyer not a corporation lawyer .

    Schlesinger sure got that wrong.

  9. @Guest

    thank you. Alison Weir is very new on the scene and has very definite opinions. I know people who have first hand knowledge of the creation of Isreal that i’m sure would have facts to contribute .I am not going to get into that because I am have enough fight on my hands with what is going on with American history, the Constitution, the illegal foreclosures and the courts and separating the honest judges from the dishonest judges.

  10. Thanks ML.
    I Just found the VeteransToday page of Gilad Atzmon which had a book review of this book about Brandeis:

    http://ifamericansknew.org/us_ints/history.html

  11. @ Guest

    The Brandeis Association was established in 1969 as a Not for Profit Corporation. The stated purpose of the Bar association, as set forth in both the Brandeis Constitution and Articles of Incorporation, is to encourage friendship and culture among our members, to foster respect for law and legal institutions and to vigorously assert its interest in justice and fair play in the County of Queens and in the City and State of New York.

    All members of the Judiciary, Lawyers, Court personnel and others who support the Jewish faith and the U.S. Constitution are eligible for membership

  12. a Guest
    Even after Chief judge Jonathan Lippmann ruled the appellate court decision was unconstitutional and the Appellate Court denied to give me one (immunity. must include the right to appeal)for Judicial Review , the people of NY got it right if the judges aren’t looking for justice for its citizens and protecting our properties vote them out before 80.

    Let them thank Judge Schlesinger for them losing ten years of their newly gained salary.

    g

  13. @Guest
    The 1871 Act provides that every person who violates the civil rights
    of a citizen is not immune from suit when the act is prohibited by law such as ruling on Jurisdiction pursuant to Elliot v. Persol

  14. @ marilyn lane:

    Brandeis Association? What is that?

    A new book was introduced last week in VeteransToday.com. The book documents a totally unknown criminal racket which Chief Justice Brandeis had started 100+ years ago & passed on to Chief Justice Frankfurter.
    I will post at page next time I check that website.

    Bank crimes can’t be accomplished without a steady stream of bribes to public officials of every level beginning with the president down to local levels.

    Judges are bribed very quietly & without trace. But even if it is discovered how, what, and how much, they are still immune from prosecution. People can sue them but complaints get dumped!

    One way which may help pro se plaintiffs is that as soon as a hearing begins they offer the judge a matching bribe + 50% of whatever they are supposed to receive form bank fraudsters, and wait for their acceptance! They are so greedy that they’ll take it or just bid up the bribing!

  15. @ Guest

    I searched and don’t see any awards for Schlesinger from the Brandeis Association. The only thing I can see for her in the ny post and NY Times are ridicule of her rulings. The ruling she gave me was absolutely illegal. Thanks for asking., Guest.

  16. @Guest

    Besides just equity I think their were other interests at play for judge Schlesinger.

    David K Fiveson who was Thomas Malone of Fidelity National Title partner in crime in trying to steal my two condo titles is active in the Brandeis Association At one time giving out awards to the Judges and I see in 2013 i see his law firm sponsored the Brandeis Association,

    When judge Schlesinger wrote her illegal decision Fiveson’s client
    Frances B Turner was not able to obtain title insurance so Fiveson made up the name Coronet Title a sham company in order for him to stand side by side with Thomas Malone of Fidelity Title

    Since then Fiveson and Turner are into a lot of shenanigans remortgaging with Bank of America in order to try to lose the trail of their fraud and forged deed.

    It all goes back to the void ab initio judgments signed in NY State Court while the case Marilyn lane v. Astoria Federal S & L was under Federal jurisdiction.

    No matter how much time goes by Void ab initio judgments pursuant to Elliot V Piersol will never be valid.

  17. @Guest
    I am going back to your original question to me today – do you know how judge Schlesinger was bribed. I answered YES I watched with my own eyes and heard with my own ears at the table in judge Schlesinger’s chambers at the hearing “How they did it”
    What it was, judge Schlesinger will have to say.that made her rule against the law of Jurisdiction pursuant to Elliot v. Piersol

  18. @Guest

    Full Definition of BRIBE
    1
    money or favor given or promised in order to influence the judgment or conduct of a person in a position of trust

    2
    something that serves to induce or influence

    I don’t have to know what she got but that she got something to rule against the law of jurisdiction.

  19. @Guest
    Deeds written without Jurisdiction are void ab initio.
    They are a nullity. There is no Equity in a nullity.

  20. @guest
    Whatever the Equity was judge Schlesinger is still guilty of ruling against the law of Elliot v Piersol. . and the Equity was what did it.

  21. @Guest

    Equity is another name for cash or money

  22. @ marilyn lane:

    apparently she was bribed but obviously you don’t know how. Without their own confessions its impossible for people to know judges and other public servants are bribed, but it could be in numerous ways, mostly without any record!

  23. @guest
    Yes

    I sought two show cause orders to MARK vacate two void ab initio judgments pursuant to US Supreme Ct case Elliot v. Piersol
    that were signed on June 30 1997 by NY State judge Carol Arbor
    while the case was under Federal jurisdiction Southern District.

    Marbury v. Madison established that issues decided by the US Supreme Ct are the Laws of the Land. US Elliot v.Piersol established that under Federal law which is applicable to all states, the US Supreme Court stated that if a court is”without authority , its judgments and orders are regarded as nullifies they are not voidable
    but simply void and form no bar recovery sought . even prior to reversal in opposition to them.

    Judge Schlesinger had no desecration but to follow the supremacy clause of Constitution and MARK vacate but when The intervenors attorney said ‘WE have EQUITY” judge Schlesinger looked at me and said ‘doesn’t look good for you ” and took it and ruled against the Constitution.

  24. @ marilyn lane:

    Do you know how judge Alice Schlesinger was bribed by the lawyer?

  25. She won’t get any peace until Judge Schlesinger sues her for defamation, libel and slander. Hopefully, it won’t be too long: the poor thing needs to be put out of our misery.

  26. read that as phony documents

  27. After Malone and his partner in crime Esq David K Fiveson paid off judge Schlesinger to rule against the law of of Elliot v. piersol I wrote a simple letter to Wm p Foley CEO of Fidelity Title, “what went wrong that your attorney finds himself fighting for a forged deed? and Fidelitys answer was “it is proper.” noe that we know how many phooey denouements Fidelity produced and transferred in the county records we understand his answer.

  28. As
    kc posted , on March 24, 2014 at 4:41 pm said:
    http://stopforeclosurefraud.com/2010/03/26/fidelitys-lps-secret-deals-with-mortgage-companies-and-law-firms.ir was esq Thomas Malone
    of Fidelity national Title that brokered the payoff to judge Alice Schlesinger for my two NYC condos.

  29. Just in case you missed this one …. Its worth the Look!
    KC does not Lie… NO NO NO …
    KC does not give Legal Advise … NO NO NO

    Prove KC Wrong? At least I can admit it if I am .. unlike others.

    http://stopforeclosurefraud.com/2010/12/06/sample-fidelity-network-agreement-between-law-firms/

  30. Mortgage Deed of Trust

    Declare the act Void and/or Voidable against the Instrument/Irrevocable Estate Grantor Trust?

    EPTL §7–2.4

    Impossibility of Performance allegation = Non-enforceable Mortgage?

  31. Right Mr. Garfield:

    But it is worthy of mention that even when banks paid for mortgages with laundered drug money American courts have consistently declared those mortgages legitimate such as the $1/2 trillion bulk of Wachovia mortgages laundered into Wells Fargo, by simply changing all Wachovia names to Wells Fargo names.
    Here is the deal:

    kareemsalessi.files.wordpress.com/2010/04/wachovia-12-trillion-drug-money-laundering-legitimized-by-dismissal-of-florida-criminal-case-cr-20165-jal.pdf

  32. RE: ” There is also another issue at play here. And that is in the normal estate planning trust, the beneficiaries do have a say in the affairs of the trust, and can thus approve an ultra vires act of the trustee if it suits them”

    KC: Nope! It will Never Happen!

    ~~~ It doesn’t suit Me or my Heirs!

    ************************ Sticks Out My Tongue ****************************

    Prays Christine takes her Nap today.

  33. Any Good Attorney who represents widows/widowers against Reverse Mortgage (RM) Fraudclosure knows things… I know things….
    Putting all things together ….

    Buttwipes!! Eseekel SAW THE WILL!

  34. I saw that Mike, I’m sure it was omitted for publicly.
    But I sure in tarnations wouldn’t except it to be filed or otherwise legal without them.

  35. Kenneth McLeod and Carol Ann McLeod, husband and wife, not as tenants in
    common and not as community property estate, but as joint tenants with right of
    survivorship.
    2

  36. @KC

    Sure hope the Sheriff’s Deed that gets recorded has a real signature and a valid notarization! The copies shown look like they were prepared by bank lawyers.

  37. Ut Oh ……

    Self Represented Homeowners WIN Quiet Title
    to $800,000 Home
    Writ of Special Execution Quieting Title in Homeowners
    “That the subject property is hereby awarded to, and title quieted in favor of Plaintiffs. That Defendant SABR is permanently enjoined and prohibited from recording any documents affecting or purporting to affect title of the subject property; and, any acts or recordings now or in the future by Defendant SABR relating to the subject property shall be of no force or effect.”

    http://www.msfraud.org/LAW/Lounge/McLeod_v_Deutsche_Writ_of_Special_Execution_Quiet-title_3-14.pdf

  38. Thanks Bob G, I reviewed the case and saw where things went south.

    http://law.justia.com/cases/federal/district-courts/illinois/ilndce/3:2010cv50317/250462/66

  39. “Section 2.01, subsection 1 of the PSA requires that transfer and assignment of mortgages must be effected by hand delivery, for deposit with the Trustee with the original note endorsed in blank.

    “Section 2.05 of the PSA requires that the Depositor transfer all right, title, interest in the mortgages to the Trustee, on behalf of the trust, as of the Closing Date. The Closing Date as provided in the PSA

  40. JG,

    Look up the case law under lender Fiduciary Duty, etc. Ignore all the Audit companies that claim there is a Fiduciary Duty obligation under TILA 226.34.

    NG claims a FD exists but he fails to understand that it applies only to HOEPA loans, a very specific subset of loans, not applicable to all but a very few people. (I have only seen about 20 times where it was applicable over 7 years, and 15 of those were involved in one case of lender v mortgage banker.)

    Yes, I have a bit of understanding on this. I have been involved in this since 2007, acting as case consultant for attorneys.

    Everyone here is now quoting the New York Trust Law statute cited in recent cases. That statute “bothers” me because it is one sentence only. It does not say what consists of a legal and proper transfer so it is reasonable that one would be required to look to the terms of the PSA.

    In most cases, unless the PSA says otherwise, it would appear that Section 2.01 where the Depositor “assigns, transfers” etc., would control and no direct recorded assignment would be required. (Check out some Wells Fargo with HSBC as Trustee for evidence of specific recorded assignment requirements.)

    Also, the Trustee or its law firm overseeing the Trust submits a letter to the Depositor acknowledging receipt of the loans, and often identifying missing documents. Many courts accept this as evidence of proper transfer when the terms “assigns, transfers” are considered.

  41. JG,

    Predatory Lending is not a specific “act” like lack of ability to pay, in and of itself. PL can only be determined based upon the totality of the circumstances. Courts have ruled on this time and again.

    Courts have also ruled that lenders do not have a requirement to protect a borrower from themselves. This would be the Fiduciary Duty argument, only with the Impossibility of Performance allegation.

    If I were called to testify on an IP case by a lender, I would present the Loan App and all Interest Rate Disclosures. Then I would show the steps a borrower would take to determine how to calculate future payments and show that though the process was not easy for a novice, it could be done. Finally, I would show the time differential between the closing of the loan, and the date of default.

    Such an approach would be consistent with rulings by courts to date that have denied different allegations on inability to perform, whatever the allegation type.

    Now, this all changes with the new Qualified Mortgage standards. Ability to Repay is a rebuttal position on QM loans, and there are going to be major problems when loans begin to default. My team has identified three different lines of argument on ATR that will be extremely difficult for lenders to refute. Expect that by the end of the 2nd Quarter, the first QM/ATR lawsuits to be filed. They will probably be FHA loans.

  42. @BobG – since when is the principal not held accountable for the actions of the agent in IL?

    @Socal7 – use Herrera to counter false assignments on grounds of hearsay. Use Penal Code 115.5 (false filing) when you show facts of impossibility of assignment.
    Trustees in CA usually file motion for non-monetary status to get dismissed from action. You need to object because they are the pivot player in the LPS agent-of-agent clusterfrack set up to confuse the borrower and amuse the judges.
    IANAL (I am not a lawyer) and therefore have no qualms about citing penal code violations in my pleadings. Forgery, perjury, grand theft, false filing … these are a few of my favorite things. And elder abuse.

  43. KC

    in Deutsche Bank National Trust Co. v. Stafiej et al., Case No. 10 C 50317. (United States District Court, N.D. Illinois. March 15, 2013.) stated as follows:

    Assuming defendants’ reading of the PSA is correct and that they have standing to raise the challenge concerning the validity of the assignment, this court would still not find that assignment void. EPTL §7–2.4 only purports to void an act “of the trustee” that violates the terms of the trust. The assignment, which was not accompanied by proof that it followed the correct chain of assignment to get to the trust, was not filled out by the trustee; it was signed by an agent of Accredited Home Lenders, Inc., the original lender, with a blank endorsement. Because defendants have not pointed to an act “of the trustee” in contravention of the PSA’s terms, this court would find their attempt to void the assignment unpersuasive.

  44. Bob, do you have the IL case? I would like to take a peek at it.

    RE: ” There is also another issue at play here. And that is in the normal estate planning trust, the beneficiaries do have a say in the affairs of the trust, and can thus approve an ultra vires act of the trustee if it suits them”

    KC: Nope! It will Never Happen!

    Gene is “Right on Target” .. Impossibility of Performance.

    JG, IP of the borrowers is an investor issue with the lender,
    but IP of the lender is a borrowers issue.

  45. elexquisitor…where are you in the discovery phase of your case? also, are you represented by counsel?

  46. so cal 7…use google scholar for cites to your Ratner case.

    also, are you still able to conduct discovery?

  47. So Cal 7…I agree with your points. you convince via depositions and other discovery. your argument has to be that someone is owed the money, but that person is not yet a party to the litigation. You don’t try to convince the judge that you are just trying to get a free house. but if the bank raises that issue your rebuttal must be to the judge as follows: “Your Honor, with all due respect, there is no decision that you can make in this case where SOMEONE is not going to get a free house.” I would then go on to introduce my evidence as to why that is so.

    Garfield is right in his assertion that there are lots of settlements that are sealed that are highly favorable to the homeowner, but we never hear about.

  48. Gene…you are correct in your IP arguments. ’nuff said.

  49. JG…an unlawful object as in your example of drug paraphernalia is very specific and mostly limited to criminal law, although the more accurate description of the unlawfulness has more to do with the possession of the object (any object) for criminal drug use, manufacture, distribution, etc.

  50. Gene – since I don’t have your case law yet, I did a little digging. I see that courts don’t generally recognize IP based on ‘personal inability’ of a party to perform; they’re generally looking for an intervening act (war, fire, God, ) causing that inability. But, I was referring to one of the determining factors – the predictability of non-performance. I guess the distinction I was making was that we’ve got a contract – okay (at least maybe). One party to that contract KNEW, based on the info provided by the other, that the other would not be able to perform pursuant to the terms of the contract – and – the party who knew was the party with the responsibility to ascertain the ability of the other party to perform. That’s not the case with many contracts, is that not so?
    Yes, I certainly acknowledge, as I did when I brought it up, that it might be a tough row to hoe, but it’s not out of the question. The fact that one party knew the other couldn’t perform to me is way not immaterial and I don’t see it as grabbing at straws, at least such that it should be dismissed out of hand (which is why I suggested research). If there were case law which made conclusions about what one party knew about the other AND had the obligation to know, I’d get onboard. I can’t formulate an argument about the borrower’s other choices. Actually, I’m a tad confused by that since any party to any contract has a choice not to enter it….? But, whether or not the law has agreed or would agree with certain arguments, and if not, it’s unfortunate, what we’ve got here IS a lot of impossibility of performance, which imo was
    predictable (and just plain known if not devised) by the party (or its alleged assign) now screaming breach. I understand your argument about fiduciary, but I’m speaking more to the known consequence of predatory lending, which is prohibited even without that fiduciary. When a loan is predatory (the borrower did not qualify or would not in month 4 of a 30 year loan based on the info provided to the other party), is the outcome (IP)not predictable?

  51. Bob, I don’t usually do this, and won’t again, but that’s pretty funny coming from a guy who couldn’t deduce that “lawful object” is synonymous with lawful purpose and has never heard the phrase. I’m not in charge of Black’s nor your thought process. Btw, there are things which as to physicality, of which I wasn’t speaking of course, are unlawful objects, like drug paraphernalia. I have more thoughts, but I’ll skip them as non-productive, but please give it a rest – and you may skip ‘teaching’ me law. Really, it’s okay. I’ll try to handle it. Peace, bro’.

  52. Gene – I believe you (you seemed to have studied the issue), but I’d like to read case law. got some?

  53. Bob G –
    I appreciate your rebuttals as they are useful. You obviously have been to this rodeo before, which is helpful. A few points/questions:
    – I agree with you that California Courts mostly have refused the argument of “standing” based on the “assignments”. In most of them, Fed and Superior Courts, they cite a lack of “facts” demonstrating that a conveyance did not take place.
    – I agree NYEPTL has to be cited and argued as well as IRC 860 (US Internal Revenue Service law in relation to REMICS), as well as the UCC, if you can find space to argue it outside of “foreclosure” action(s).
    – I’m asking (sincerely), how can anyone have a claim against or defend against any person who, without authority, would draft a false document (assignment) and record it as true? I ask that in response to your statement about the homeowner not being a party to that “assignment”. If it is clear by facts that Daffy Duck is a fictional character that now lays claim to the obligations of my DOT and Note, how do I convince the court of the fabricated nature of that instrument? In my view, it finding and establishing the facts of such fabrication and falsity. Is there another way?
    – If XYZ Trustee for ABC Trust claims an interest in the DOT and Note, and facts can be presented they have either no ability (by law, their own contracts, lack of consideration, lack of bona fide “assignor”) or that they could not have acquired an interest in the DOT or Note, cannot those issues be litigated?
    Your comment on Title is right on, as well. Any ideas on a equivalent or cite in CAL on Benedict v. Ratner 268 US 353 (1925) ? I believe facts of non-conveyance, late conveyance (“Dominion Reserved” – See Benedict v. Ratner) or null conveyance show or can serve to show or create a question of whether title was perfected in the “assignee”. If that “assignee” is now asserting interest/power in a homeowner’s DOT and Note, why aren’t they fair game to be complained of as fakes or false holders? Particularly if their acts have damaged the homeowner?

    Please bear in mind that I think some of your posts are among the more lucid and on point ones in this forum, and any reply is accordingly appreciated.

  54. JG,

    Impossibility of Performance cannot be used to justify harm to a borrower unless the action was forced upon the borrower. When the borrower enters into a transaction that was filled with risk but had other options, then Impossibility of Performance would not be a viable defense.

    If you argue IP, then you might as well try to argue that the lender had a Fiduciary Duty to the borrower. But courts have ruled consistently against such a proposition, unless very specific mitigating factors exist.

    Now IP could apply in the situation of modifications, and my team is working with homeowner attorneys on that defense.

  55. @BobG – it’s true that my case (in appeal now) departs from the trial courts disregard of Glaski in favor of a decision based on federal rulings on CA statutes. Glaski wasn’t appealed on its merits to the CA Supreme Ct, but it’s publication as a citable case was. Recently the CA Supreme Ct refused to consider the appeal and determined the case was dismissed. In doing so it determined was significant law that is binding in at least the 5th district.

    “The Court also addressed the Gomes decision, which most courts rely upon when ruling in favor of the banks (for example the trial court relied upon it in sustaining BOA’s demurrer). Specifically the Court held, “[t]he instant case is distinguishable from Gomes on at least two grounds. First, like in Naranjo v. SBMC Mortgage (S.D. Cal. Jul. 24, 2012, No. 11-CV-2229-L (WVG) 2012 l 3030370), Glaski has alleged that the entity claiming to be the noteholder was not the true owner of the note. In contrast, the principal in Gomes concerns the authority of the noteholder’s nominee, MERS. Second, Glaski has alleged specific grounds for his theory that the foreclosure was not? conducted at the direction of the correct party.“ note – Gomes was based on federal rulings of CA statutes and as such are not binding on courts. Despite that my trial court has used Gomes multiple times to deny a Glaski challenge.

    Even if you don’t know for sure, deny, deny, deny. I also have a Glaski, with an unanswered QWR for a copy of the note and beneficiary statement (CA-specific) that was never produced. Like I said, it is an ugly appeal.

  56. ML
    I have a void ab initio judgement I did not even know about until recently, how bout them apples and one wonders how many more have been issued think about that. Anyway I guess I’ll be getting into that too, I want this over but by the time I’m done digging around I may make it to Australia. It’s true what prof Bill Black says- the more you dig, the more you find. Actually I hope someone(s) end up in the slammer for what they did. The wind is starting to change, and it’s about time, you simply can’t fool all the people all the time.

  57. And I don’t care who thinks what and is of what opinion. The fact of the matter is that certain things work and others don’t.

    If anyone is in financial trouble (and that would be 90% of the bloggers here), there are true and tried methods to get help and then, there’s Neil Garfield. Following is true and tried.

    http://www.maxgardner.com/consumer_info/topten.asp

  58. JG … trying to teach you law is giving me a headache.

    Here’s my example:

    I have a banquet hall. You want to rent it out for a social function. We sign a contract to that effect. The night before your social event, my banquet hall burns down. THAT is impossibility of performance, not your nonsensical example. If you think you’re right, try out the defense in court and let us know how it works out for you.

    JG…I’ve been a fairly successful pro se plaintiff litigant for 22 years. One learns a lot about the law in that time, and as John Huston’s character said in “Paper Chase” how to think like a lawyer. You’re a long way from having that ability at this time.

    It is not sufficient to be able to come up with a novel legal theory or stratagem. One must also have the experience, judgment and insight to know what is likely to work, when it is likely to work, and where it is likely to work. Kinda like knowing when to hold them and when to fold them. You’re talking and arguing like a first year, first semester law student, home on holiday break.

  59. JG, you cant copy and paste from this site, my original post went to moderation.
    Its one of the cases about the Trustees duties to Investors.

    http://www.ft.com/intl/cms/s/2/5c85a29a-ec93-11e1-8e4a-00144feab49a.html#ixzz2wpHihpDT

  60. kc, yes, that’s prob in a lot of PSA’s, but pertains to legal advice, not the duties of a trustee (other than that it isn’t his duty to give legal
    advice and that he doesn’t). imo.
    There’s probably, in fact I’ve seen it, language which attempts to relieve the trustee of any duty and or fiduciary to the trust. Long and short, I believe in my lay opinion that it’s unenforceable. What is the point, for instance, of a cut-off date (which as I’ve said I think is itself a matter of law – don’t think a cut-off date is optional) if no one is bound to assure compliance? The legal implication of not assuring compliance is or could be that the thing, the preferential-tax-treatment-trust /the benefit of the thing, sought to be created isn’t and or won’t be. It isn’t equitable imo (isn’t it in fact absurd?) to have no one bound to assure compliance – and it may be that a sec’n trustee is bound as a matter of law. I think that’s true with all common law trusts, but I don’t know about secn trusts (except logically). Being ‘bound’, to me, comes with the job.

    “bound: accountable, answerable, called by duty, chargeable, committed, constrained, destined, engaged, forced, having no alternative, impelled, liable, necessitated, obligated, obliged, pledged, pressed by duty, required, responsible, restrained, tied, under a vow, under compulsion, under necessity, under obligation”

  61. Without looking and based on what I think I remember, if one’s interest rate goes up 1%, it goes up 7.5% of itself. If anyone’s interested in seeing what that looks like, take a p & i and multiply it by 107.5%.

  62. MISCELLANEOUS
    Certificateholders and other persons potentially interested in the Trusts should not rely on the
    Trustee, or on counsel or other advisors retained by the Trustee, as their sole source of
    information. The Trustee neither makes any recommendation generally nor otherwise gives any
    investment advice herein.

    http://www.cwrmbssettlement.com/docs/Notice%20Of%20Settlement.pdf

  63. If you had Countrywide you need to go thru every link on this site …
    If you have your CUSIP ….. Oh Boy!

    Enjoy!
    eNough!

    http://www.cwrmbssettlement.com/

  64. bob g – I’m afraid I have to say this – that’s one of the dumbest things I’ve ever heard. Why do attorneys get paid 300+ per hour? Because they know the law (or should peculiar to a case) and to do just that – think things through. My example may have been a poor one (tho I don’t nec agree it was) , but it’s nonetheless on point. The law says I may exclusively enjoy my car to the exclusion of anyone else. Therefore, I point to my title and the law in defending a thing. I couldn’t assert my title (in lieu of a contract such as a psa) if I didn’t have it. One, in invoking a law, must point to the thing an act violates, whether it’s a car title or a PSA. I’m not a lawyer, don’t get paid, so I’m not bound to be brilliant. Even then, I don’t think my example was misleading. But I agree about uncertainty – sometimes. After all, it’s part of a court’s job to determine if material uncertainty exists, is it not? Right now I’m on something else: “impossibility of performance”. I believe it’s an aff defense to a contract. The law doesn’t generally like it for obvious reasons (obvious when one does a little studying). That
    doesn’t mean it’s out of the question.

    One of the things the law looks at is whether or not the impossibility were predictable. If people got loans with a three month teaser rate where payments were 788.00 and then it goes to the adjusted rate and the payment now has a 1 in front of it, i.e., 1788.00, there can be no doubt there are times when there is impossibility of performance on the part of the borrower. The borrower simply does not make the moolah to pay the 1788. So the question, to me, becomes one of predictability. Could / should the homeowner, and not the lender, have predicted that it would be impossible for her to make her payment at the adjusted rate? Maybe there’s some onus on the borrower, but it’s a lender who is in the business. Since the borrower has entered a thirty year loan and not a three month one, the borrower will be compelled to pay at the adjusted rate in month 4. Imo, his impossibility to pay was entirely
    predicatable by one party to the loan, the lender.
    In case anyone doesn’t know it and fwiw, fha and va and I think even F & F limit the adjustment rate to 1 or 2% annually and then have a lifetime ceiling of 5% rate increase. With those loans, no one’s payment goes from 2% to 9% after three months. The reason for the
    annual cap being what it is is based on a determination by ‘someone’ that a borrower’s income will keep up with that adjustment

    There are other factors in determining I of P. One is an act of God. Another is war. (there are more) What the banksters did to our economy, and thus our ability to pay, is neither one of those legally (more like an act of the devil and not so sure about war if we call this a class war). But it remains true that the acts of the lender and its buds have created I of P for many of us. But, good luck proving that one. Before anyone tosses I of P, because today it may present a real defense to the contract, you might look into it. I think the strongest potential is in WHO could predict our inability to pay on teaser rate loans and more so if we didn’t really qualify even on that teaser rate. Here’s one article (of many) on I of P:

    http://definitions.uslegal.com/i/impossibility-of-performance-doctrine/

    lay opinions, as always

  65. That 11/2013 column was wishful thinking (if not flat out bad advice) then and it still is now.

    “Do it through discovery and ask the right questions, demand the right documents in the money trial and compare them with the pile of worthless paper reciting transactions that never occurred. Deny the debt, deny the note, deny the mortgage, deny the assignments, deny the balance they say is necessary to bring the loan current, while investors lose trillions and the proceeds of most payments never went to investors or borrowers but to the intermediaries, the conduits of these pernicious transactions. Follow the Servicer advances and see where that takes you and compare it to the demand for funds from the borrower who owed far less, if anything, to the creditor who was being defrauded by the Wall Street titans.”

    Looks good on paper. Show of hands here… How many people, just on this site, made it all the way to discovery by denying, denying, denying? How many got farther by still denying, denying, denying? From what I’ve seen, anyone sitting in a house for which he borrowed money he isn’t repaying (regardless to whom) is bound to piss off any judge with half a brain who, himself, is paying a mortgage every month.
    Doesn’t matter where it came from. The fact is that someone who couldn’t buy a house cash is sitting in it today and isn’t paying for it is THE issue.

    Rather than editorializing ad nauseam on non-substantiated generalities and outrageously unrealistic claims completely irrelevant to borrower and his contractual duty, Garfield would best serve people by teaching them to focus on provable facts and walking them through the steps to take in order to get to discovery. And then again… even if he did, not too many would win a reprieve, let alone anything more: there’s still that little matter of knowing what to plead, when and how.

    Must be why attorneys who do win don’t do it with his exotic theories. And they don’t come here to post.

  66. KC

    “RE: Any person with actual knowledge of the fact that real or personal property was owned or titled to a trust was charged with constructive knowledge of the terms of the trust.”

    OK, so tell me how you would apply this to our RMBS trusts, and to what effect.

  67. KC…I think that what you’re missing here in National Surety v. Manhattan Mortgage Co. is that the beneficiaries were the plaintiffs. And in this non-indenture trust, they had the right to object to the ultra vires acts of the trustees and anyone acting in concert with them. That’s distinguishable from the RMBS trusts, as stated below.

  68. Deny Everything: It’s All a Lie Anyway

    Posted on November 25, 2013 by Neil Garfield

    It is hard to wrap your brain around the profound tragedy of greed defining a whole generation, of brilliant minds figuring out ways to take control of all the mediums of exchange. Who would have believed it? Who believes it now? But I was there. I attended meetings in the early 1970′s that laid the foundation for what would be one banking crisis after another as the Wall Street titans plotted to take everything from us — what little wealth we had, what dignity we had left, what lower we had through voting by buying the levers of power, and understanding they could control the consequences.

    Yes, deny everything because from the start the mortgage meltdown was nothing more than elaborate fraud on the citizens of the world, the banking and commerce systems that were bringing us together. Now these ruthless sociopathic titans have cornered the supply of money and further seek to corner the markets in natural resources. To what end? They don’t even know. They just want more.

    Your note and mortgage were part of a fraudulent scheme designed to defraud investors and government agencies, sovereign wealth funds, thousands if community banks and credit unions eliminating even the illusion of a free market place where everyone had a fair opportunity to grow. Your mortgage and note were evidence of fictitious transactions, as were the initial investments of pension funds and other investors. More fictitious transactions hid the reality while ideological rants reminded us that we should pay our debts but failed to remind us that committing fraudulent acts deserve restitution not rewards.

    Follow the money all the way through and you will find the monetary transactions that never match up with the mountain of fabricated, forged paper trails. Follow the money trail and the rush to foreclosure makes perfect sense — that the lowest proceeds from foreclosure were necessary to perfect the PONZI scheme.; how a performing loan is a liability and how a foreclosure puts a lid on trillions of dollars in liability for the intermediaries that made themselves principals in transactions that were simply loans from groups of investors to the borrower.

    See how the loans were paid in full at the time of origination or acquisition and how MERS was only a necessary tool to hide fictitious trades to account for the money stolen from pension funds, investors, borrowers government guarantors and of course the most vulnerable — the buyers.

    Do it through discovery and ask the right questions, demand the right documents in the money trial and compare them with the pile of worthless paper reciting transactions that never occurred. Deny the debt, deny the note, deny the mortgage, deny the assignments, deny the balance they say is necessary to bring the loan current, while investors lose trillions and the proceeds of most payments never went to investors or borrowers but to the intermediaries, the conduits of these pernicious transactions. Follow the Servicer advances and see where that takes you and compare it to the demand for funds from the borrower who owed far less, if anything, to the creditor who was being defrauded by the Wall Street titans.

    Not all loans are the same, but most of them followed the same general patterns of conduct. If you are persistent I discovering the truth, it is there to be found. And any good trial lawyer will reveal that truth. Deny everything and make them prove the loan. They can’t. .

    https://livinglies.wordpress.com/2013/11/25/deny-everything-its-all-a-lie-anyway/

  69. @jgault…your car thief example is not a good one. If you have to expend energy to think it through, it’s too complicated and complication means uncertainty and uncertainty means that a court can use its discretion to rule in different directions than the one you want.

    @elexquisitor…the other CA courts don’t agree with your or Glaski. But I don’t know anything about CA law and deeds of trust, so I really can’t speak to that issue.

    @KC and others: EPTL 7-2.4 “every sale, conveyance or other act of the trustee in contravention of the trust, except as authorized by this article and by any other provision of law, is void.”

    Here’s the problem. There is now a federal judge in IL who says that even if 7-2.4 is applicable, it still means nothing because the statute refers to the trustee’s acts, not the acts of others. So this twit has held that there was no proof that the trustee brought the note into the trust in contravention to the PSA; rather, he says all the actions complained of were committed by the Servicer, who is not covered by the statute. How the note could have been delivered to the trust and accepted by the trustee in order for the trustee to commence the foreclosure action, was not explained by His Honor. Apparently, he didn’t think that the servicer was an agent of the trustee, either. Apparently, the servicer was a mere rogue operator who just happened to crash the party and stash the note in the trust unbeknownst to the trustee.

    There is also another issue at play here. And that is in the normal estate planning trust, the beneficiaries do have a say in the affairs of the trust, and can thus approve an ultra vires act of the trustee if it suits them. That’s why NY trial courts have ruled voidable rather than void. However, Erobobo is the first court in NY to ever apply 7-2.4 to an indenture trusts, such as RMBS trusts. These trusts do not permit the beneficiaries to have any say in the operation of the trust. If they don’t like what’s happening they can get together and sue the trustee. But then it would be a court rather than the investor beneficiaries that would void the trustee’s acts.

  70. Deny Everything: It’s All a Lie Anyway | Livinglies’s Weblog

    livinglies.wordpress.com/2013/11/…/deny-everything-its-all-a-lie-anywa…‎

    Nov 25, 2013 – Yes, deny everything because from the start the mortgage meltdown was …… the transaction is void (see, EPTL 7–2.4; see also, National Surety Co. v. … In that case, Manhattan Mortgage, the third party defendant, was held …

  71. Constructive Knowledge at Closing when the Title to the Estate was transferred and conveyed into an irrevocable trust. They knew at the time of closing the mortgage was unenforceable and the note was unsecured.

    An act (the assignment) in contravention of that agreement is void.

  72. RE: Any person with actual knowledge of the fact that real or personal property was owned or titled to a trust was charged with constructive knowledge of the terms of the trust.

    The common law evolved into New York’s rule that imposes constructive knowledge of the terms of the trust if the parties to the transaction have actual or constructive knowledge that the property is held by a trust. Over the last century New York’s legislature codified the common law into the “widows and orphans” laws. New York’s rule VOIDS ultra vires transactions as a matter of public policy

    This prevented a seller of property to a trust or a purchaser of property from a trust in contravention to the terms of the trust to be able to claim bona fide purchaser status. These principles were recognized in National Surety v. Manhattan Mortgage Co., 185 A.D. 733 (2nd Dept. 1919), Affirmed 230 N.Y. 545 (Ct. App. 1920). In that case, Manhattan Mortgage, the third party defendant, was held liable for the malfeasance of the trustee because it had actual knowledge that the property interest transferred was held in trust.

  73. If the mortgage part is unenforceable it is void…. as to the trust.

  74. Now.. Fraud on the Face of the Contract and Fraud in the Inducement is likely to VOID the contract.

    The Note is VOID against non borrowers,
    I sure wish they would quit pre-qualifying me to refinance my mortgage loan. Ha!

  75. “under NY EPTL 7-2.4 the contract is not void…the act that is in contravention to the contract is void.”

    YEP! YEP! YEP!

    The act = The assignment

  76. okay, Hobert, you said “under NY EPTL 7-2.4 the contract is not void…the act that is in contravention to the contract is void.”

    No one’s trying to void the PSA, as it’s NOT being challenged by the h.o. What’s being challenged to be in contravention of the PSA is an ACT – an assgt; the act of the assgt is what’s in contravention. I’m fairly certain or at least hopeful you aren’t saying a h.o. is attempting to
    malign the psa. If the assgt is in contravention of the psa, the law says it’s void. It’s inescapable imo to assert the contract, the PSA, when positing that a law says an act in contravention of that agreement is void. If one just says “the law says this deal is void”, the court would appropriately ask “how’s that?” It’s ‘how’s that” because the terms of the contract provide that all transfers to the trust shall be done by a time certain (and that time certain, btw, is probably if not definitely itself a matter of law). One needs something to tie the law to, to what is it
    applicable. If a car thief snarfs my car, I will tie my right to own and enjoy my car to my car title. Any ‘act’ in contravention is void (and here legally chargeable) Best example I could think of from the hip. lay opinions

  77. UKG … He Got It!

    If the transfer were voidable then the damaged party would have to bring an action against the misfeasing parties to have the transfer voided.

    Its a State Action to correct misinformation/fraud in the public records … ‘lee bad assignments.

    “Splat”

  78. ribbeting, isn’t it?

  79. Title to Household Estate transferred and conveyed Irrevocably.

    Croak …

  80. **** These were known colloquially as the “widows and orphans laws”. These laws were written so that an evil, corrupt and mean spirited trustee could not steal from widows and orphans (the assumed unsophisticated beneficiaries of the trusts) by unlawfully using trust assets to perform an act that was in contravention of the trust provisions

  81. Btw, touche to dinsfla for his article (kc I think) about regulators keeping their word not to nail anyone for predatory lending.

  82. JG,
    RE: Any person with actual knowledge of the fact that real or personal property was owned or titled to a trust was charged with constructive knowledge of the terms of the trust.

    The common law evolved into New York’s rule that imposes constructive knowledge of the terms of the trust if the parties to the transaction have actual or constructive knowledge that the property is held by a trust. Over the last century New York’s legislature codified the common law into the “widows and orphans” laws. New York’s rule VOIDS ultra vires transactions as a matter of public policy

    This prevented a seller of property to a trust or a purchaser of property from a trust in contravention to the terms of the trust to be able to claim bona fide purchaser status. These principles were recognized in National Surety v. Manhattan Mortgage Co., 185 A.D. 733 (2nd Dept. 1919), Affirmed 230 N.Y. 545 (Ct. App. 1920). In that case, Manhattan Mortgage, the third party defendant, was held liable for the malfeasance of the trustee because it had actual knowledge that the property interest transferred was held in trust.

  83. “Only when it becomes truly intolerable do people find the wherewithall to rise against it, which I’m not advocating.”

    When is that going to be? “government’s money” is yours and mine. Why should it keep being expended toward that how-much-more-are-they-willing-to-take experiment? Rather than rising against the result of it, people have the power to stop it and reverse it.

    Takes courage, though… Very much lacking, nowadays…

  84. @BobG – what you all seem to miss is the connection of Glaski to title. A beneficiary of a deed of trust loan has the ability to change the course of title by declaring a default. If a subsequent beneficiary makes such a declaration, but the assignment to that subsequent beneficiary is void because it did not conform to an ancillary contract, then the borrower has the right to point out the break in the chain of title. As such, the borrower IS a third party beneficiary to the ancillary contract to the conveyance of a clear title.

  85. JG, Thank You, but it was Bob G who posted it. I just posted some additional info … check your State Laws.

    Illinois overruled NY law when plead and applied state law.

  86. thank you, KC. You saved me and others some work by citing that law.

  87. Bad Trustee! Bad! Bad! Bad!
    Go Wash Your Hands!

    “If the trust is expressed in an instrument creating the estate of the trustee, every sale, conveyance or other act of the trustee in contravention of the trust, except as authorized by this article and by any other provision of law, is void.”

  88. Yes, bob, it’s also called unlawful purpose and I take it that’s how you found it in Black’s.

    In some real news (to me, anyway), the GSE’s are still at it, paying outrageous bonuses (like the one Franklin Raines got in or around 2008 – unbelievable. That’s the one I heard about in 2008 that nearly knocked me off my chair – that prudent u/w standards had been pitched in favor of production bonuses):

    The Federal Housing Finance Agency, the government regulator for Fannie and Freddie, approved $12.79 million in bonus pay after 10 executives from the two government-sponsored corporations last year met modest performance targets tied to modifying mortgages in jeopardy of foreclosure.

    Read more: http://www.politico.com/news/stories/1011/67292.html#ixzz2wof2pjef

    Christine may say well you’re all just too dumb because you keep paying taxes to support this bs. Oppression puts and keeps people down. Homeowners are the latest victims of oppression. Imo, oppression is nothing new. This one is a humdinger, though. Only when it becomes truly intolerable do people find the wherewithall to rise against it, which I’m not advocating. I’m just recognizing what I see as some history. Does someone have an obligation to legitimately modify a loan? Imo, absolutely, if that person took gov’t funds to do so. I don’t think that’s carte blanche, though. I don’t know what you do about a guy (or thousands) who didn’t qualify and won’t under any scenario. Use some Hamp funds AND make his payments 500 a month on an equity share (win, lose or draw?). *
    Doesn’t this lead to the question: who should bear the loss from predatory lending? Imo, by forking over hamp and other funds, the govt has said it’ll absorb some of it. Who else should? You know who I think should. The mucks at FNMA apparently decided to buy loans made to people who didn’t qualify. And they got seven and eight figure bonuses!
    They’re all liable in my book. The bankster for making the loan and fnma for buying it – and then guaranteeing it! So now they want to get rid of F and F. Is this an admission the gse’s aren’t capable of self-governance? If so, guess that means they’re not ‘too big to fail’. F & F were doing just fine until sec’n and you know who came along (far as I know).
    *should a borrower who can’t ‘qualify’ pursuant to some real guidelines (assuming) be made to lose his home when he didn’t qualify in the first place?

  89. If the transfer were voidable then the damaged party would have to bring an action against the misfeasing parties to have the transfer voided.

  90. “Section 2.01, subsection 1 of the PSA requires that transfer and assignment of mortgages must be effected by hand delivery, for deposit with the Trustee with the original note endorsed in blank.

    “Section 2.05 of the PSA requires that the Depositor transfer all right, title, interest in the mortgages to the Trustee, on behalf of the trust, as of the Closing Date. The Closing Date as provided in the PSA is November 14, 2006.

    http://deadlyclear.wordpress.com/2013/08/26/part-2-how-to-challenge-an-assignment-of-mortgage/#more-4648

  91. RE: “If the trust is expressed in an instrument creating the estate of the trustee,
    🙂

  92. A REMIC Unraveling?

    David Reiss| August 1, 2013

    Print Friendly Version of this pagePrint Get a PDF version of this webpagePDF

    An unpublished opinion, Glaski v. Bank of America, No. F064556 (7/31/13, Cal. 5th App. Dist.), presents one possible future for REMICs that failed to comply with the strict rules set for them by Congress and the IRS. Glaski, a homeowner, argues that the trial court erred by dismissing his case challenging the nonjudicial foreclosure of the deed of trust secured by his home. For my purposes, I am interested in the Court’s consideration of “whether a post-closing date transfer into a [REMIC] securitized trust is the type of defect that would render the transfer void.” (20) I am going to quote the opinion at length because the reasoning is somewhat complex:

    The allegation that the WaMu Securitized Trust was formed under New York law supports the conclusion that New York law governs the operation of the trust. New York Estates, Powers & Trusts Law section 7-2.4, provides: “If the trust is expressed in an instrument creating the estate of the trustee, every sale, conveyance or other act of the trustee in contravention of the trust, except as authorized by this article and by any other provision of law, is void.”

    Because the WaMu Securitized Trust was created by the pooling and servicing agreement and that agreement establishes a closing date after which the trust may no longer accept loans, this statutory provision provides a legal basis for concluding that the trustee’s attempt to accept a loan after the closing date would be void as an act in contravention of the trust document.

    We are aware that some courts have considered the role of New York law and rejected the post-closing date theory on the grounds that the New York statute is not interpreted literally, but treats acts in contravention of the trust instrument as merely voidable.

    Despite the foregoing cases, we will join those courts that have read the New York statute literally. We recognize that a literal reading and application of the statute may not always be appropriate because, in some contexts, a literal reading might defeat the statutory purpose by harming, rather than protecting, the beneficiaries of the trust. In this case, however, we believe applying the statute to void the attempted transfer is justified because it protects the beneficiaries of the WaMu Securitized Trust from the potential adverse tax consequence of the trust losing its status as a REMIC trust under the Internal Revenue Code. Because the literal interpretation furthers the statutory purpose, we join the position stated by a New York court approximately two months ago: “Under New York Trust Law, every sale, conveyance or other act of the trustee in contravention of the trust is void. EPTL § 7-2.4. Therefore, the acceptance of the note and mortgage by the trustee after the date the trust closed, would be void.” [quoting Erobobo] Relying on Erobobo, a bankruptcy court recently concluded “that under New York law, assignment of the Saldivars’ Note after the start up day is void ab initio. As such, none of the Saldivars’ claims will be dismissed for lack of standing.”(quoting Saldivar)

    We conclude that Glaski’s factual allegations regarding post-closing date attempts to transfer his deed of trust into the WaMu Securitized Trust are sufficient to state a basis for concluding the attempted transfers were void. As a result, Glaski has a stated cognizable claim for wrongful foreclosure under the theory that the entity invoking the power of sale (i.e., Bank of America in its capacity as trustee for the WaMu Securitized Trust) was not the holder of the Glaski deed of trust. (20-22, citations and footnotes omitted)

    We are now seeing a trend that started with Erobobo and continued with Saldivar: courts are finally addressing the REMIC attributes of the mortgage-backed securities at issue in downstream cases. I am not sure that the reasoning of those three cases will hold up on appeal, but it is interesting to see judges add another level of understanding to foreclosures in the age of of the mortgage-backed security.

    [Hat tip April Charney]

    UPDATE: I just heard (August 8, 2013) from Richard L. Antognini, Glaski’s appellate lawyer, that the court has decided to publish this opinion. As he notes, “It now can be cited to other California and federal courts, and it is binding authority, until another court of appeal disagrees or the California Supreme Court decides to review it.”

    Filed under: 2013, California, MERS/Bank lacks standing, Note ownership litigation

    http://www.refinblog.com/a-remic-unraveling/

  93. EROBOBO, EPTL 7-2.4 & WIDOWS AND ORPHANS

    By Charles Wallshein On August 15, 2013 ·. .

    EPTL §7-2.4 was born out of those sections of the New York Code that dealt with title to real and personal property owned by a trust. With the enactment of EPTL in 1966, §14-1.1 repealed all those laws and consolidated them into one code section, §7-2.4. The various sections of the New York Code contained special provisions that stated any person with actual knowledge of the fact that real or personal property was owned or titled to a trust was charged with constructive knowledge of the terms of the trust.

    These were known colloquially as the “widows and orphans laws”. These laws were written so that an evil, corrupt and mean spirited trustee could not steal from widows and orphans (the assumed unsophisticated beneficiaries of the trusts) by unlawfully using trust assets to perform an act that was in contravention of the trust provisions.

    Any purchaser/seller of assets to or from a trust was charged with having knowledge that the transfer was with the trustee’s powers. See In The Matter of Pepi, 268 A.D.2d 477 (2nd Dept. 2000). See also, National Surety Co. v. Manhattan Mortgage Co., 185 App.Div. 733, 736–737, 174 N.Y.S. 9, affd. 230 N.Y. 545, 130 N.E. 887; Boskowitz v. Held, 15 App.Div. 306, 310–311, 44 N.Y.S. 136, affd. 153 N.Y. 666, 48 N.E. 1104). These ancient common law principles are not unique to New York. See Clark v. Whitaker, 19 Conn. 319, (Connecticut Supreme Court, 1889), Moore v. Eldred, 42 Vt. 13, (Vermont Supreme Court, 1869), Cone v. Ivinson, 4 Wyo. 230, 35 Pac. 933, (Supreme Court Wyoming, 1894).

    The common law evolved into New York’s rule that imposes constructive knowledge of the terms of the trust if the parties to the transaction have actual or constructive knowledge that the property is held by a trust. Over the last century New York’s legislature codified the common law into the “widows and orphans” laws. New York’s rule VOIDS ultra vires transactions as a matter of public policy.

    The reasoning for the rule is that New York courts specifically did not want to litigate the issue of actual knowledge. The courts wanted to limit any ultra vires trustee litigation to an interpretation of the trust and not to litigate the issue of fact relating to the participants’ knowledge of the trust provisions.

    This prevented a seller of property to a trust or a purchaser of property from a trust in contravention to the terms of the trust to be able to claim bona fide purchaser status. These principles were recognized in National Surety v. Manhattan Mortgage Co., 185 A.D. 733 (2nd Dept. 1919), Affirmed 230 N.Y. 545 (Ct. App. 1920). In that case, Manhattan Mortgage, the third party defendant, was held liable for the malfeasance of the trustee because it had actual knowledge that the property interest transferred was held in trust.

    New York is one of two states where an ultra vires transfer of assets to or by a trustee on behalf of a trust is void rather than voidable. If the transfer were voidable then the damaged party would have to bring an action against the misfeasing parties to have the transfer voided. In New York the transaction is void ab initio, just like it never happened. In the instant case the Plaintiff is the Trustee. Here, there is no possible defense that the Trustee has no knowledge of the terms of the trust.

    The person or entity that has authority to make lawful transfers of the note and mortgage within the RMBS varies depending on what stage of the transaction the transfer was made. The transfer must be lawful pursuant to a document or writing that does not create a presumption that the transfer violates state law or other controlling trust document. This is not a form over substance argument. In RMBS transactions a violation of state law or of the PSA would open the trust to liability. In particular, the entity that presumably needs standing to enforce the mortgage needs to prove as a threshold matter that they have the lawful authority to do so. Since there have been numerous transfers of the note and mortgage, the downstream “person entitled to enforce” the note and mortgage must rely on the proper and lawful transfer of those documents throughout the chain of possession and title respectively.

  94. People need to vent christine. Because they are people you do it .. Hudes does it. Btw whats she upto?

  95. “Where the object of a contract is forbidden by law, the agreement shall be void.” Still. Doesn’t happen in a vacuum and just by the mere operation of the holy spirit. It has to be PLEADED in court, whose purpose it is to interpret and uphold the law. Just like “unclean hands”: it has to be pleaded and proven… in court! Not on blogs such as this one.

    Talking about it over and over and over in the vast emptiness of internet doesn’t mean a darn thing unless legal action follows.

    Know why blogs such as this one are allowed to go on and on forever, uncensored and barely monitored by TPTB? Because TPTB knows damn well the bloggers will never take any kind of an action susceptible to jeopardize its stronghold. Let them blog aimlessly: while bitching, moaning and complaining, they don’t do anything else.

    Keeps them busy and out of the way… completely harmless.

  96. Wells Fargo v. Erobobo…

    I have read Wells Fargo’s appellate brief and Erobob’s respondent’s brief. I have also read the one amicus curiae brief filed in the case. Accordingly, I’m of the opinion that Wells Fargo is going to lose its appeal.

  97. jgault

    under NY EPTL 7-2.4 the contract is not void…the act that is in contravention to the contract is void. the third party in this context is objecting to the act, not the contract. let me repeat…the MAJORITY of courts have not sided with the homeowner on this issue.

    I happen to believe that the homeowner does have standing re challenging securitization note transfers, and I believe that the NY appellate court hearing the Erobobo appeal will conclude the same and affirm the lower court.

    This was a colossal mistake on Wells Fargo’s part to appeal Erobobo. They should have just let it stand at the trial level. If affirmed, the decision will be binding on all NY trial courts wherever situated until a different appellate department rules otherwise.

  98. Like power of sale ?
    The “legal ” object was never intended to do us out of constitutional rights, ( property/ Land /contract ) (supreme.)

  99. johngault

    your definition is for an “unlawful purpose.” object is not used in your context as a tangible thing, but rather a purpose. Stick with “unlawful purpose,” at least until Black’s gets the memo. Otherwise folks who actually do some lawyer litigatin’ won’t know what you’re talking about.

  100. Thats my therapy for the day. Thanks

  101. Bob g – keep looking. Oh, for pete’s sake.
    Unlawful object:

    Where the object of a contract is forbidden by law, the agreement shall be void. An act is said to be forbidden if it is punishable by criminal law or any special statute, or if it is prohibited by any law or order made in exercise of powers or authority conferred by the legislature.

  102. Indeed i like to visit here it stArted for me here. I googled foreclosure !
    Oh boy is this ever about a whole world more than that. I read much broader now (as i advise everyone to do ) talk to as many professionals as you can and leave no stone unturned, blind alleys – do not be discouraged turn back ,accept its never a waste of time . come to realize many things not by blogging on here but by critically analysing where i was the road i travelled where i am now more importantly WHY and even more importantly where im heading ( finish line)
    . Im handling it because i believe, in justice. Life is not fair get it, but i have a voice and i will be heard. They will judge and that will that. And then. The fat lady will sing ( worn out cliche i know)

  103. bob, you say that glaski cited NY law (7-2.4), which as I recall, if applicable to his loan, would make a late transfer to a trust void. Yet you say that one who is not the assignor nor assignee, i.e., party to the contract, has no grounds to dispute someone else’s contract. My OPINION concurring with your take that it’s generally true that a third party has no vehicle with which to argue the validity of another’s contract doesn’t consider that a law may itself define the contract as void. I guess we don’t agree – because if the law says the ‘contract’ is void, then it’s void, and I do believe a third party may raise the law against that contract. And I stand by what I said, when the object of a contract is unlawful (“unlawful object”), the contract is void. My only question is whether or not the law says what’s prescribed to it by / in Glaski since I haven’t seen the actual law. And, btw, it’s also not a fact in evidence that a homeowner is not an intended beneficiary of anything relevant to his home. To start with, sec’n was sold partly as a benefit to home buyers and owners as a means to keep rates down.
    Are those dots that can be connected? I’d say so, and I’d make my best argument and at least not fold til the fat lady started singing.

  104. bob G
    why don’t you tell the homeowners whom you are trying yo help what a void ab initio judgment is -a judgment from the beginning that is not valid and no matter how much, time goes by can not become valid?
    Do you have an idea why they do title search for forty years? and sometimes longer?

  105. johngalt

    You are going to have to bring Black’s Law Dictionary up to speed. There’s no entry in it for “unlawful object.”

  106. Bob G:
    “And I have absolutely no idea what an “unlawful object” is.”

    You said it! I don’t know you or what you do, but if you’re taking money from people without knowing this 101 legal term, might I suggest you learn it? If you’re on the homeowner’s team, meaning it’s your mission to help them get some relief, then please give some care to the battles you pick.

  107. I know, Deb.

    You’re still in the fight. There’s a reason you come here: you still have hopes and questions you might find somewhat of an answer to. Something still can be done in your situation. Not the case for everyone coming here. When the battle is lost, Bob and I don’t see why people feel the need to post here just for the hell of venting and rambling.

    Unless, of course, this blog is merely group therapy, as we believe it has turned into. In which case, 1) it is coming very short of that newly found purpose, given that no one appears to get healed and be able to move on, and 2) it serves absolutely no useful purpose for those needing practical and concrete help.

  108. The odds of winning Warren Buffet’s Billion Dollar bracket are over 4 billion to 1. The odds of Marilyn Lane saying something that we haven’t heard at least 100 times before has to be at least 100 billion to 1.

  109. Deb
    I too believe their are good judges, and good lawyers but the trial judge Alice Schlesinger and the appellate judges David B Saxe etc i had except judge Helen Freedman were on the wrong side against the Constitution and Judge Lippman lost out because although he ruled in my case the appellate decision was not a final decision under the Constitution he appellate court refued to give me a final constitutional decision and David B Saxes was roo much of a bully for judge Lippman .

  110. Don/t worry Christine i come from a strong background.

  111. Ok point accepted Christine
    I hear you on the “landscaping”.
    Im pleading my case in a landscape that hatched out of nothing less than bad lawyering basic stuff like timelines andgetting into discovery ( zero discovery after one year paying him) . Not saying all lawyers are bad. Im doing better on my own as exausting as it is.

  112. The judges were outrqaged that i wouldn’t stop tell the truth and they rhem selves asked ESQ David k Fiveson Did the state court do it over when it returned from Federal Court. NO NO No. He thinks that when Francis B Turner dies he or his heirs will end up with the property.
    If it lasts that long Not only will the properties go to whom I designated but BIG damages.

  113. “…debt collector attornes MJRF illegally auctioned them off…I plan to keep fighting and then if i feel it might be my end i am giving my two condos to very powerful jpeople.”

    Does the English language have a word to describe it? Surreal won’t do anymore and insanity doesn’t even come close. The only explanation anyone could come up with is such loneliness that the poor thing will go to any length to feel… simply alive! Some desperate attempt at proving that she exists somewhere. What a tragedy!

  114. My arguments simple and direct that a judgment signed in a state court while the case was under federal jurisdiction was null and void forever and that the Bank never held title and admitted debt collector attornes MJRF illegally auctioned them off .
    nemo dat your an attorney you should know that. you can’t give away something you don’t own.
    I plan to keep fighting and then if i feel it might be my end i am giving my two condos to very powerful jpeople.

  115. Some people really go through extreme length to prove why getting rid of 2/3 of the world population might not be such a bad idea after all…

  116. Bob G

    All judge Schlesinger did was take money to rule against the Constitution, pursuant to US Supreme Court case Elliot v Piersol.
    No immunity for her. Bob you think you are getting in good with her.for what reason? The majority of New York state are outraged at
    what has been going on in the Court. Have you noticed.????

  117. christine –

    Plan to Raise Judges’ Retirement Age to 80 Is Rejected

    By JAMES C. McKINLEY Jr.

    Published: November 6, 2013

    An amendment to the New York State Constitution raising the mandatory retirement age to 80 for judges on the Supreme Court and on the Court of Appeals went down in defeat in a referendum on Tuesday, handing Chief Judge Jonathan Lippman a stinging rebuke

  118. Oh, my apologies Marilyn. You do have something of value to offer the board…you can always serve as a bad example of what not to do and what arguments not to make.

    Carry on.

  119. OK, Marilyn, so tell us how that’s working out for you. Did u get your apartments back yet? Did you get judge Schlesinger reversed? removed from the bench? How long has it been since you got booted out of court…repeatedly?

    Marilyn, you are living in a fantasy world. You lost everything years ago. Everything is gone. It’s over. Fini. Done. Go do something fun and productive with the rest of your life.

    What did Shakespeare’s Julius Caesar say? “The fault dear Brutus is not in our stars…but in ourselves.”

    So why do you continue to post here? You have nothing of any useful substance to offer anyone that could help them save their house or avoid your fate. The longer you continue to hang around here, the more mental anguish you will suffer. Don’t you have any friends or family outside this forum? You’re reminding of Nicole Kidman’s character in “The Others.”

    Give up the ghost, Marilyn, give up the ghost.

    Sorry to be so harsh, but sometimes tough love is necessary.

  120. case in point is right judge Schlesinger doesn’t belong in the judiciary when she refused to follow the supremacy clause of
    our Constitution A judgment rendered without authority is a nullity
    void ab initio then and forever. Christine wants to get rid of everyone’s case but her own.

  121. Case in point…

  122. In spite of all of you that claim some of us are wasting our time posting, we in New York know we have accomplished a lot, even if we are not home yet by the whole state ruling against extending the judges tender till age 80. They were voted OUT = no state should want a judge that doesn’t follow property rights of the Constitution.
    Even my favorite (sic) judge Alice Schlesinger was voted out.

  123. Deb,

    Bob and I spend a lot of time one-on-one with people who do need help and there comes a time when we get discouraged by the results or lack thereof. It’s an uphill battle to try and get them to stick with the issues at hand and subsequently read their prose strictly based on “opinions” and very little relevant substance. Just for the hell of it: Bob nor I are not losing so far. And yet, people come here to follow advice from those who not only lost but refuse to analyze why and move on when the damage is not salvageable. Hell! Most of them can’t even see when nothing more can be accomplished to get them out of the rut they created for themselves by pleading their “opinions”!

    It is not beating unnecessary anyone but trying to change the landscape. Apparently, the landscape doesn’t want to be changed.

  124. As for wine im biased.
    My pont is theres no point in pointing out that someone thinks that they are right and the other is wrong to POST
    Waste of time.

  125. And while people come here to express their baseless, groundless, knee-jerk “opinion”, the fate of the US is being played out and it ain’t too pretty…

  126. Christine,
    Please dont get me wrong I think Bob makes good contribution on here too. I just think its uneccessary to beat folks up that have the same right to post anything they want, its up to the individual to be discerning because theres so much BS EVERYWHERE its a game and a half sorting one kind of BS from another.
    Only my opinion.

  127. Deb,

    Who said anything about wine? I have no idea what it referred to.

  128. Deb,

    “This is a place to have an opinion”. Not true: it is presented as the place to find information homeowner could use to fight the bank. It turns out that:
    1) So far, all the people who’ve use the info here have lost. Those who ultimately make it stopped coming here long, long ago or completely disregard Garfield’s theories and just visit for kicks.

    2) Everybody has opinions but what worth are they when based on absolutely no knowledge whatsoever?

    3) This country is 27th in education worldwide. Some serious ignoramus among the developed countries! And yet, it is always giving it’s opinion. In fact, it is so frickin’ insecure that everyone living in it is FORCED to give his opinion every step of the way. Stupid surveys after buying anything “Did you like us? Were we nice to you? Will you come back?”, seeing a doctor or a dentist “Were we good to you? Did we treat you well? Will you refer us?” and my favorite of all: “How is my driving? If you want to bitch, call my co. at 888-999 9999 and get me fired. That’ll do wonders for the unemployment rate…”

  129. Wine is good for you its fruit, grapes 😚

  130. Bob G.,

    johngault, on March 21, 2014 at 6:03 pm said:

    Neil, I love you, but you’re making me drink:

    As I recall, that wouldn’t be particularly conducive of clear thought…

  131. FWiW any effort on here if well intended is much appreciated by me,
    This is a place to have an opinion and consider others point of view i personally go my own wAy life has taught me that during this crisis and that being said my opinion changed and continues to and as you can see on here so do others- as we learn Bob, dont beat folks up for that please. Im sure no one takes what they read on here as gospel regarding this SM which is the result of an illegal playing field and a game not devised for the little mortgage loan borrowers participation, non the less, we are here, and here to stay. Each case is different ok. We all do the best we can with what we have got and it might not be much but we walk the wAlk.

  132. @johngault

    as if these folks on this blog aren’t discombobulated enough, you’re going to gobbly-gook them into total incoherence with your posts.

    First of all, your posts of late are like an uncontrollable case of mental diarrhea. you ramble on incessantly with all this crap. How is it that you can’t say what you need to say in several well thought out sentences?

    “Not a fact in evidence imo, even if that’s ‘generally’ taken to be the case with most contracts, which I’d have to concede it is.”

    Your opinion doesn’t count…this is well settled contract law.

    — Same argument as challenging late transfers to the trust in violation of the PSA.–

    “I think you might be misstating the argument. Isn’t the argument more that the late transfer is a violation of the LAW? No agreement with an unlawful object is valid, is that not so?”

    No, I am not misstating the argument. This has nothing to do with correctly stating the argument. This has everything to do with the holdings of the majority of the courts that have addressed this issue. These courts have not said that the late transfers did not violate the PSAs. They’ve said that the homeowner lacked standing to object to the late transfers because the homeowner was not a signatory to the contract or a third party beneficiary.

    And I have absolutely no idea what an “unlawful object” is. I do know what unlawful possession of an object is, but you have me stumped with the unlawful object itself. Perhaps you could describe it for us…is it larger than a breadbox?

  133. So cal 7

    RE Consideration…

    No, it’s not. The courts are not going to let you interlope and bust into someone else’s contract absent a law permitting you to do so. Do a little research on this one. UCC and general contract law with respect to consideration is a matter between the parties to the contract, not folks who are not third party beneficiaries to the contract. This is different than Glaski, as Glaski challenged the late transfer under the prohibitions of NY EPTL 7-2.4. If the parties to the contract or mortgage assignment agree that good and sufficient consideration has been given, that’s the end of the matter as far as the homeowner is concerned. Whether the forecloser has good title to the note is another issue altogether.

  134. I may owe NG an apology – if he didn’t mean to posit that a note sec’d by a loan on a residential property could be enforced without ref to the collateral instrument (where security first is operative).
    I’ve opined numerous times that to get at actual payment for a note, one might ask for a more definitive stmt: is the alleged holder claiming as a hidc or a ‘mere’ holder, which has been by and large ignored.(And I’ve questioned the presumption, if any – holder v hidc – because if there is one, I don’t know it. One is only a hidc to the extent of actual payment, not a promise to pay. The way I understand that rule, if there’s a 100k note and the buyer has only paid 10k and promised to pay the other 90k (some day), that buyer is a hidc to only 10k. As to the 90k, he is merely a holder, subject to all aff defenses. How that shapes up in the defense of a note, in practice (10k hidc and 90k holder), I really don’t know except to say that the affirmative defenses raised would be good against the 90k. It does no good to assert aff defenses against a hidc which are only a defense to a ‘mere’ holder (so doesn’t one need to know holder v hidc?) But these rules, as far as I know, may only be relevant to notes regulated by Article III and may not apply to these notes at all. Right now or for this strategy, maybe we don’t care, since the banksters stand on Article III routinely. If they do apply, since we’re ‘terribly’ interested in consideration, why are we ignoring a route which might imo at least compel a claimant to go on record – a yeah or nay – on consideration? Don’t we have a legit argument that we simply cannot formulate a response to a complaint (including aff defenses, which, in the first response, are “use ’em or lose ’em:)? If it’s not a good route, I’d be interested in knowing why.

  135. “Thus, courts err by placing the burden on defendants to prove lack of consideration simply because the agreement is in writing. While consideration is presumed for a written instrument, the presumption should not survive a verified denial. Further, based on the foregoing propositions, lack of consideration should not be considered an affirmative defense.”

    This thoughtful article is expressing the opinions of an appeal attorney with an impressive pedigree – worth a read. He discusses the difference between lack of consideration and failure of consideration.

    http://www.reverseandrender.com/2010/01/articles/opinions-judgments/lack-of-consideration-revisited/

  136. Things you should know …. Example of One Such Agreement

    Many Blessings to All!

  137. So Cal 7,
    I do believe the veil has been lifted on all business activities.

    One thing I though I read somewhere (and I know nothing and if I think I know something I know nothing – I can’t point to the reading material); that when a company is audited, the auditor can only look at certain things…call that the starting point of every audit. Then as it goes on, and they ask a question, they can travel the road the answer leads, and keep doing that until the audit is done. If everything is in place they leave a good audit, even if there is some area of the company that would have failed the audit, they can’t chase it until someone says something that sends them that way, or someone whistleblows.

    Now my opinion is, either whistleblower or some common ‘check’ that would have been an accusation of a witch hunt, has become a basic check, maybe from a location that an audit ‘NEVER’ started from, maybe from an investor, backwards (just guessing), but if such a situation were to occur, and you audited the accounting of an investor, you ask to see a trust, you look in, and ask where are the assets, and you walk that trail and you find out who put what in, and where is the asset now?

    It feels to me, some door was opened that was closed before, and where on one end businesses claimed a right to property and first come first serve they created docs, stole from the people, added it to their assets and gave notice to the other businesses in on the fraud to ‘not grab this one, I’ve got it’, well someone is tracing things from the other end, and finding out they have no right to claim the right.

    The people are the creditors of the nation, we underwrite all their expenses and we have been robbed.

    It is in the governments best interest for survival, to protect its creditors, not the businesses that are ‘pretending to be creditors’.

    This government, in my opinion, is in survival mode, and if it doesn’t audit the right places, it will not survive, the businesses will own the creditors, and the government will have nothing.

    So the papers these businesses have hidden behind to do what they do, ie, the Constitution, and the Bill of Rights, the government in my opinion is ignoring those docs as they are protecting the wrong entity.

    The courts are protecting the wrong entity and the cleanup will be nasty and will look like an invasion, but in my opinion, its necessary because they are like ticks that are all over the place and imagine someone exterminating ticks while the ones that have the ticks on them are seeing the activity and watching ticks fall off and die or dislodge and run away.

    If ticks looked like people, looked like us, it will be very confusing to see some break off and run and some being killed and some scared and we don’t know they are ticks and what they do for a living.

    Just saying.
    They waited too long to stop because they think no one saw what they did.

    People saw, but had no way of ‘interfering’ because the law of the land said when it comes to contracts said ‘no law impairing the obligation of contracts shall be made’, there is also the rule that you can’t go looking for problems in their accounting, you can only look at what is shown and what you follow as the audit goes along.

    Something changed, and they can see what was shown to them. They can see the contracts were satisfied at closing and there is no reason for someone to claim a loss if they redirected the funds. If they were paid, the asset is off the table.

    Someone sees the fraud, and now, in my opinion, the veil is lifted.
    You can’t steal under the disguise of taking back an asset you sold when you weren’t even a party to the transaction, thus no contract.

    Judges and lawyers aren’t immune. They aren’t creditors. They were ‘trusted’ and were found to be untrustworthy. They took an oath, and ‘fell’ like fallen angels.

    These are my opinions, but if there is anything to be thankful for, it is to be thankful we are not them and we won’t have to deal with what they’ve done.

    There is a paper trail, the pen is mightier than the sword. It can rob someone of their property and it can reveal who the thief is and who assisted in the theft under ‘color of law’.

    Of course these are only opinions. If challenged, I will be sure to say I know nothing. If someone feels the need to challenge opinions, I will wonder what they have to lose by me posting an opinion of nothing that I know. I’ve stepped back from being an actor on the stage to an observer of the performance. I’m glad this part of the play has moved into this ‘act’.

    What’s the quote? It as the best of times, it was the worst of times.
    For some, the worst is yet to come.

    Trespass Unwanted, Creator, Corporeal, Free, Independent, State, People, Life, In Jure Proprio, Jure Divino

  138. I had to sneak in a request for a statement of decision by the CA trial court in a summary judgment motion to force the judge to point to the source of the fact of the amount paid by the foreclosing entity for the loan. This was my opening issue in appeal; trial court denied motion to compel that fact by forcing compulsory arbitration under guise of ‘discovery facilitation’ and accepting ‘facilitators’ findings even though I refused to sign findings ‘agreement’. Judge acknowledged and refused to answer request at oral arguments. No ‘consideration’ = no loss = no capacity for equitable relief = no standing as a party.

    And then the appeal gets ugly. Real ugly.

  139. It’s the title, Stupid!

    Posted on September 5, 2012 by Neil Garfield

    “What is surprising is the fresh evidence these cases are turning up of cockeyed mortgage practices, during both the boom and the bust. As these matters are adjudicated, perhaps we will finally learn whether these practices were intended or accidental.” — Gretchen Morgenson, NY Times

    Editor’s Analysis: Gretchen Morgenson has latched onto the key element of the “securitization” of home loans that was faked to cover a Ponzi scheme in which the largest financial players in the world were pulling all the strings.

    While the propaganda would have us believe that the situation is improving, the looming number of decisions from now alerted Judges may well produce a tidal change in the outcome of foreclosure litigation, the value of the bogus mortgage bonds which appear to be worthless from start to finish, and the balance owed on any of the debt issued under the guise of securitization.

    Romney and the Republicans, taking their talking points from Wall Street are saying let’s wait until the market “bottoms out.” What people want and could have is a market where prices are going up, not “bottoming out.” Voters do not want to hear that because each year the predictions are the same: the market is finally hit bottom and is recovering, only to be bashed by news of ever-decreasing prices on homes.

    The judicial system is where it all happening, albeit at the usual frustrating snails pace that the courts are known for, some of which is caused by the sheer volume through which the banks and servicers, masquerading as note holders push good-looking documents with not a single word of truth recited.

    Judges are starting to realize that the issue of the identity of the creditor is important if any of these cases are going to settle or where a modification is the final result.

    Under HAMP the servicers and “owners” of the mortgages are required to consider the mortgage modification proposal from borrowers. But they are not doing that, complaining that it is straining their resources and infrastructure since they are not set up for that. Whose fault is that? They took the TARP money and they agreed to modify where appropriate and even get paid for it.

    The borrower is left in purgatory with no knowledge of the proper party to whom they can submit a proper proposal for modification, with principal loan r eduction or actually principal loan correction since the original appraisal was false and procured by the bank. Judges like settlements. But they can’t get it if they keep siding with the banks that the identity of the lender and the actual accounting for all money paid in or paid out of the loan receivable account is irrelevant.

    The problem is MERS and the entire origination process where the rented name of a payee on the note, the rented name of the lender described in the note and mortgage, and the rented name of the mortgagee or beneficiary was used instead of the actual source of funds.

    The second problem is the balance due, on which the servicers and attorneys have piled illegal fees.

    The answer is the strategy of deny and discover which is being pursued by alliance partners of livinglies and the garfieldfirm.com. By the way, we are especially ready in South Florida. Call our customer service number 520-405-1688 for details on getting legal representation.

    The banks and servicers are pretending that the report from the most recent sub-servicer is sufficient for the foreclosure. That has never been the case. Historically, if a lender felt it needed to foreclose it came to court with the entire loan receivable account starting with the funding and origination of the loan and continuing without breaks, up to and including the date of filing.

    The banks and servicers have been steadfast in their stonewalling to prevent the homeowner from knowing the true status of their account, the true identity of the creditor, all of which can be gleaned not from the the records of the subservicer but from the records of the Master Servicer and the “Trustee” of the supposed common law trust which was “qualified” as a REMIC for tax purposes.

    An accounting from the Master Servicer and Trustee would lead to the discovery of admissible evidence as to what the real creditor was owed after receipt of all payments, and who the current real creditor might be. After all, they looking for foreclosure and they are taking these properties by “credit bids” instead of paying cash at the auction. Only a creditor whose debt was secured by the mortgage or deed of trust can submit a credit bid.

    The truth is that virtually all credit bids that have been submitted are invalid because they were not submitted by a secured creditor. And that leads to an even larger problem for the banks. Those “assets” they are holding on their balance sheet are not just fake, worth zero, they are also offset by a liability to those whose money was taken by the same investment banks that sold bogus mortgage bonds to the investors.

    Since those sales were made through elaborate CDOs, CDS and other devices, we have known since 2007, that the reported “leverage” (using investor money) was as much as 42 times the amount of the average loan in the portfolio.

    So that loan for $300,000 resulted in a 100 cents on the dollar payoff to banks who had neither funded nor purchased the loans but were representing themselves as the legal holder of the note and thus the obligation.

    If the mortgage was invalid, the note was unenforceable because it wasn’t funded by the parties named on the note, and the “assignment,” or other transfer or sale of the “note” were all equally null and void, then the bank that has picked one end of the stick saying the assets on their balance sheet are real, should also have put a contingent liability on their balance sheet for as much as $12 million on the $300,000 loan.

    Each time foreclosure is completed, or appears to be completed, that huge liability is wiped out arguably. Then the banks keep the $12 million, and dump the loss on the individual loan on the investors, which is usually some 50%-65% of the loan amount.

    THAT is why the banks and servicers are in the business of foreclosure, not modification or settlement. They have no choice. They could owe back all that money they received. It isn’t the loss of $300,000 or some part thereof they are worried about, it is the liability of $12 million on that loan that they are avoiding.

    The political impact of this will be devastating to incumbents not in 2012 but in 2014 when the pension funds, who have already reported they are “underfunded” start slashing pension benefits, thus requiring another round of Federal Bailouts because the government so far has refused to claw back all of the money that was made by the banks and distribute it to the investors and reduce the borrowers balance owed on the “loan.”

    Given the above scenario and the widespread use of nominees in lieu of real lenders and real sources of funding, it is highly probable that the title to potentially tens of millions of properties have clouds either because the foreclosure was wrongful or because the wrong party executed the satisfaction of mortgage or both.

    And as stated in the previous post, this is not a gift to homeowners. They will owe tax on the elimination of the mortgages and loans because the loans were paid, not forgiven.

    It is left-handed way of providing huge principal reductions because of PAYMENT (not forgiveness). With the balance paid, the borrowers must report the claim as a gain paid by co-obligors they never knew existed. With a top tax rate of 35% currently, soon to be 38%, the homeowner will have a tax obligation for no more than the tax rate applied against the balance due on the loan — the equivalent of a loan reduction of 65%-75%, which would satisfy anyone.

    Modification proposals from homeowners are much higher than that. The only reason they are rejected is because each modification would transform each loan into the class of “performing” and would materially change the balance sheet of each of the mega banks with adverse consequences for the mega banks and a bonanza for the 7,000 community banks sand credit unions in this country.

    But in order to determine the balance due, the accounting must be a total accounting starting from the original funding of the loan right up to the present. When Judges realize that the would-be foreclosers can’t or won’t provide that they will start making the opposite presumption — that it is the banks and servicers that are the deadbeats

  140. “The sub-s itself has no taxes due and only when the owner takes some wages is it taxed, probably with some rules I couldn’t rattle off on a good day.” Oops – phrased that poorly – the sub s isn’t taxed, the individual is. Whatever – only one is taxed.

  141. As an organization, the trust only has its tax-preferred status ‘as long as’ all rules are followed. When they’re not, the trust is at risk for, among other things, taxation. If the trust becomes liable for taxes, from where is the money coming? Out of the investors’ pockets? And then isn’t it so that it’s not a REMIC at all? Let’s say that it were proven that xyz trust routinely accepts or accepted loans after the cut-off date. (I think NG once said the law would find some kind of partnership created – “got me”).
    That’s a pretty big deal – the poss of taxes, penalties, and fees due.
    These trusts need to themselves be bullet-proof when you think about it. That’s hardly the case if the trustee jeopardizes the trust’s status by accepting late assignments (which is why I’ve said there’s no way I believe a trustee would actually acknowledge its acceptance, even tho it’s being postured that a gazillion have). I guess it’s a choice of poison for a secn trustee to allow someone to represent that the trust has accepted the late assgts (also have banked on our ignorance).
    If the PSA or any other governing doc says the trustee has no responsibility to make sure the trust qualifies and continues to qualify for the tax-preferred status (those won’t be the very words), that’s totally messed because SOMEone must pay the piper, that is if the IRS ever takes back the ‘forgiveness’ card we think is out there for trusts for their failure of the “so long as”. It seems to me the only one in that act with the obligation to the trust to ensure its status is the trustee.

    For anyone interested and because no one else has, I’ll make an attempt at explaining – in majorly lay opinion – that taxation. Corporations are ‘subject to double taxation’, it’s said / called. The corporation has to pay taxes and then when it pays its officers, say, that money is taxed again. Some people form S-corporations because the money taxed is that money paid out to the owner of the s-corp = only taxed once. The sub-s itself has no taxes due and only when the owner takes some wages is it taxed, probably with some rules I couldn’t rattle off on a good day. Investors are taxed on their profit from MBS’s, like any other investment, I believe, but the entity, which is a ‘law-specific’ trust (not a corporation, say), isn’t. I’ve made some blunders (no, not that) thinking the investors would be subject to further taxation, when they’re not. THEY already pay taxes on income. It’s the trust which would be subject to the taxation sought to be avoided by its legal structure which would owe the moolah. But, if it’s found that that tax-preferential structure is non-existant, WHO would owe those taxes? Deutsche as trustee? U.S. Bank as trustee? There’s really no such entity as “Deutsche as trustee” to my knowledge. It’s just a designation. My point is that trustees themselves are putting the trust structure at risk and of course, they shouldn’t be. It’s ‘possible’ (likely?) the people to get zinged would be the investors. Bunch of nonsense to allegedly go to a lot of time and trouble for bk remoteness of sellers if the buyer isn’t itself bullet-proof, isn’t it?
    In Glaski, where one can see how that gang hates f a c t s, I think it was argued by the claimant that the trust at issue was a DE trust, not a NY trust, and that it was NY trust law which was argued by the homeowner (assgt argued as a matter of law, not contract, Bob, way I got it). Damn. I’m not up on my REMIC laws from state to state, but all the same, I’d hazard REMIC laws are fairly if not exactly uniform. Or maybe those rules are federal (?) Maybe one day NG or someone ahead of the rest of us will actually cite chapter and verse of the law which says late assgts are void.
    First day of spring – yahoo!

  142. Florida:
    “Title XL – Chapter 695
    695.01 Conveyances and liens to be recorded.—

    (1) No conveyance, transfer, or mortgage of real property, or of any interest therein, nor any lease for a term of 1 year or longer, shall be good and effectual in law or equity against creditors or subsequent purchasers for a valuable consideration and without notice, unless the same be recorded according to law; nor shall any such instrument made or executed by virtue of any power of attorney* be good or effectual in law or in equity against creditors or subsequent purchasers for a valuable consideration and without notice unless the power of attorney be recorded before the accruing of the right of such creditor or subsequent purchaser.”

    Interesting – note the statute says it’s not good in law or equity against so and so, but the so and so doesn’t include the homeowner / borrower.
    This is a crock! It may not be good against the borrower, but I still say it can’t be ENFORCED without notice to the homeowner of the claimant’s interest / rights.

    *what about any alleged “agency” status? same thing? Is a mtg to an alleged agent even perfected when there is no lawful evidence of agency – from statute: “no such instrument MADE” (as well as executed by an agent, as in an assgt) MERS is thee ben / mtgee. Oh, wait. We know we said mers is both an agent and thee ben, but what we really meant is that MERS is the true ben’s agent (the unnamed true ben) unless you’re a regulator or other party with interest and then we’re thee bk remote beneficiary.
    Remember, an agent may not itself define the scope of its agency).
    Consider this:
    Both “Joe” and “Marty” know there’s a recorded mtg on Joe’s house.
    Say Mutt Mtg was the orig lender and its mortgage is recorded.
    Florida has one of, if not thee, largest homestead exemption in the country. So Joe has a mtg recorded with MM and Joe sells his home to marty for 350k, a fair but good deal for marty (50k could possibly be called a sham – dunno nor could I try to say what that might lead to). Before the sale, Joe recorded a homestead on the property. There is no assgt recorded to anyone, so Marty has no notice that anyone other than Mutt Mtg may have a claim against the home (actually, neither does Joe and Joe happens to know that Mutt Mtg is toast). 10 mos later, when payments are not being paid on Joe’s loan, MAJOR Mutt Mtg gets an assignment (from “MERS”), claims holder status of note, and comes after Joe and his ex-home (and prob marty). Upon the conveyance from Joe to Marty, they did what they needed to do so that Marty now has the homestead exemption, which was recorded before the alleged assgt to MMM. Is Marty a bona fide purchaser for value without notice of ANYone’s claim except the original Mutt Mtg, which is now toast? I think he is or might be for the same reason certain bk debtor’s and bk trustees may avoid unrecorded interests (which, I’ve mentioned, banksters are trying to get 86’d). If Marty is a bona fide purchaser without notice (of MMM’s claim) and for value, why can’t he avoid MMM’s interest? Any H/S exemption recorded after a home loan doesn’t exempt that pre-existing home loan, but it’s MM’s mtg which is recorded / noticed, not MMM’s. MERS can’t be acting for MM because it’s toast. Acc to that statute, and because MERS says it’s merely an agent, it doesn’t act in its own right. It needs a principal, even if it’s a common agent or were (not common to MM anymore, because they’re gone). So for whom is it acting in the first place? I’ve always thought that the bk rule which allows avoidance has its origination in non-bk law.

    Anything not expressed as a question is a lay opinion – ask a lawyer

  143. D Wynn – no, I hadn’t seen it, but what Obama is said to have said is a joke and a half. He refers to federal regulations re: orig fraud / predatory lending, as if some FEDERAL agency is the bomb for prosecution of predatory lending. If there isn’t a statute or 5 on every state’s books making predatory lending a crime, I’ll eat my hat. There are STATE statutes against pred lending, and like it or not, the attorneys general of the states are charged with enforcement. As e.tolle and others here can rightfully swear, the state atts general apparently missed this as part and parcel of their jobs. I think everyone should look in their own state statutes for laws against predatory lending and cite or link them here. “Missouri revised statutes predatory lending”, ARS predatory lending”
    At the end of that section or somewhere thereabouts, it will likely recite WHO is to enforce predatory lending violations, and imo that is the STATE AG (plus I’ve seen at least one). Yeah, one isn’t proof that’s true in all states (that the ag got the job), but a dollar to a donut it is.

  144. “If this was a “warehouse loan” in which the originator was borrowing the money with a risk of loss and the liability to pay it back then the originator is a proper party and any assignments from the originator would be valid — if they were supported by consideration.”

    Right. As to table funding, have you, Neil, actually reviewed broker-lender agreements? I’m concerned that you’re still ignoring them because I think you’d find the broker who closes in his own name, but has already agreed to sell the note to the ‘lender’ (a CW, say), either owes a CW the note or a CW’s moolah back. Is that not a loan? Doesn’t the broker owe for those funds – either the note or the moolah; either one is repayment of those funds, is it not? A CW enters a warehouse agreement with X Warehouse Lender (or the handy overnight window at the nearest Fed) and a broker enters a similar agreement with a CW. The only troubling aspect I can come up with is what might be found in CW’s w/h agreement. If that agreement contractually makes the broker’s note collateral for the moolah advanced to CW the instant it’s executed, then it’s poss both CW and the w/h lender have concurrent claims to the note…? If so, do we care?
    You’ve been saying for a very long time now that the investors funds were used at the closing time with zero support for that prop. I understand the possible value of that support (tho I disagree it makes the investors the lender – I believe it’s more like embezzlement and maybe wouldn’t even spell theft unless the purpose was to deprive the investors of the benefit of the bargain mol – the return of principal plus interest*) to a practicing attorney, but in the meantime, thousands and thousands of people are losing their homes.
    *If the investors funds were used, making it impossible for the trust entity to have had the moolah to buy the loans, then a case could be made, right? that the investors were deprived of the benefit of the bargain = theft? But if the investors received their p & return on investment, did they lose the ben of the bargain? It’s the trust entity which has a big ol’ problem because IT is subject to the taxation (and other “stuff” like imo its own breach of fiduciary) it’s heretofore avoided (and penalties and interest).
    And if the banksters benefited (aig, default insurance, whatnot) by the use of those pilfered funds without seeing that that benefit went to the investors, that’s a pretty big breach of any fiduciary, isn’t it?
    Someone around here needs to see what the defaut-law UCC says about payments on a note which has been paid for but not transferred. Why, when we have many law-licensed attorneys dealing with f/c defense, is it we have no finite answer to what seems like a particularly relevant question? Since you think the banksters’ use of the investors’ funds makes the investors the lender, I would think any finite (re speculative) answer to the question regarding the effect of payments to the bankster would be at least as critical to you (altho it’s a diff question, I think).

  145. Bob G., on March 21, 2014 at 1:18 pm said:

    “Here’s the problem. The only folks that can challenge consideration are the parties to the contract.”

    Not a fact in evidence imo, even if that’s ‘generally’ taken to be the case with most contracts, which I’d have to concede it is.

    “Same argument as challenging late transfers to the trust in violation of the PSA.”

    I think you might be misstating the argument. Isn’t the argument more that the late transfer is a violation of the LAW? No agreement with an unlawful object is valid, is that not so?

  146. Think I feel like venting today. There was a case in 2012 which allowed an alleged holder of a 2nd mtg to go after the homeowner on the note ONLY (the coll was toast, having been snarfed by the alleged holder of the first loan). In a nutshell, ‘A’ made both the first and 2nd or ended up with them both (i forget, but it may matter). Apparently ‘A’ was precluded from suing on its second after f/c’ing on the first. ‘A’ assigned the second to another entity who successfully went after the homeowner. Precedent? Got me, but the point is that all an “A” may have to do is assign the 2nd to someone else and that someone else can try to nail the former homeowner. I don’t think much of what I see as that “trickery”, but more, I really think zero of lenders putting borrowers into first and second loans, because there can be ramifications to the borrower unknown to him. I’m of a mind that that’s so material that is should have been made clear to the borrower and if it were me, I would holler about the non-disclosure. If anyone gets in that spot, try looking at your state laws for the rules about protecting one’s interest. The NOD isn’t necessarily, imo, for the exclusive “benefit” of the borrower. It also gives notice of the acceleration to everyone, including jr lienholders who may (key word) statutorily have to cure to protect their interests. Jr lienholders on info and belief may record a “request for notice” if they don’t want to be bothered with looking at public record every week themselves or hire someone. If they do record such a Req for N, it’s my understanding they have to be notified of the alleged default on the first so they have better opp to cure it to protect their own interest. If they chose not to record a request for notice and not to protect their interest as I think statutorily req’d, then tough on them. I personally believe they had to cure the first and have no grounds to sue on the note after the first forecloses if they didn’t (which means fwiw I disagree with that 2012 decision) and either way, without curing the first (if required on the books as I believe it is).
    People who made second loans on homes assumed that risk – that the collateral wouldn’t cover their interest and allowing them to avoid that assumed risk is garbage (esp if the law gave them 35 days to cure and they didn’t).

    Yesterday or so, someone linked an article about the FBI, et al sqwauking about borrower fraud in getting loans. Is that a joke? Maybe there was some (probably even), but did borrowers dummy up tax returns, pay check stubs, balances in bank accounts, other assets, their credit scores? Give me a stinking break! Lenders are statutorily charged with seeing to it borrowers stinking qualify.* Or a guy says he makes 100k a year, 39.00 a month in obligations, has $4.00 in assets, and that doesn’t raise a mandatory red flag? In other words, if a borrower tries to scam a loan, it’s the lenders J O B to not let him. Whether the lender let him or the lender dummied up the stuff, it’s predatory lending. Wonder if we could find a well-read public domain or newspaper to publish our own tales of the real loan fraud in origination?
    *I’m also hard pressed to understand how no-qual loans comport with laws against predatory lending in the first place. How much, if any, is that a defense to a loan? No one gets into it. Got me why. Oh, yeah, I know – because the ‘lender’ sold the loan, so the nasty, cumbersome job of learning any relevant assignee liability shows up – is that it? And any SoL?

  147. ML
    I do not have a computer ( mine too,) I use other peoples and store/ back up on flash drives.

  148. re hacking my computer now i will have to go to the library.

  149. Lets try that again, with specs on
    Whats the position of your case at this point ML may i ask

  150. “The California Security First Rule & Foreclosure
    Under California’s security first rule, most mortgage lenders* must foreclose on your home rather than sue you in court on the promissory note.”

    *some exceptions for jr lien holders

    http://www.nolo.com/legal-encyclopedia/the-california-security-first-rule-foreclosure.html

    If the lender must f/c rather than sue on the note, how is a note by its lonesome a claim??????

    Obviously, this is CA. I suppose I’m going to get to be the one who has to dig into Florida’s……. Louisianna’s, Connecticut’s, Hoboken’s….. Wouldn’t turn down any help here……

  151. Let me rephrase: In which states may a lender get a judgment on the note without reference to the collateral instrument?

  152. Neil, I love you, but you’re making me drink:

    “I agree that enforcement of the note is easier than enforcement of the mortgage.”

    How many and which states have security first statutes? How about the loan agreement? Does it spell out security first?
    In which states, if any, may a lender get a judgment on a note secured by a dot or mortgage?

  153. So whete ate you now ML? Whats the position of your case mau i ask

  154. Deb
    I fought back simple hard and direct in the NY first dept appellate
    when judge Schlesinger refused to follow the Supremacy clause of the Constitution that whatever the US Supreme rules on an issue is the law of the land
    I sought two orders to show cause to Mark vacated two void ab initio judgments for lack of jurisdiction of the ny State Court judge Carol Arbor since the case ML v. Astoria Federal/Fidelity was under Federal jurisdiction when the state court judge signed them. pursuant to Elliot v. Piersol which states under Federal law which is applicable to all states

    the US Supreme Court stated that is a Court is without authority, its judgments and orders are regarded as nullifies. They are not voidable
    but simply void and form no bar to recovery sought even prior to reversal in opposition to them. ”

    This is where the Appellate Court wrote that 5 page outrageous
    of me and how egregious I was cause i wrote the truth.

    Chief judge Jonathan Lippmann wrote the Appellate decision was not Constitutional. But because i was pro se they tried to push it under the carpet and protect judge Schlesinger’s illegal decision.

  155. ML
    That us what it boils down to. If unaurhotized then no standing
    Obvious and yet convoluted

  156. In our state of Virginia, the mills are getting slapped with cease and desist orders.

  157. By the way….anyone here know why ReconTrust has like ZERO Trustee’s sales scheduled in Cal?

    Numbers are way, way down in AZ, TX, and NV, too (the 4 states they steal houses in). Strange. For CAL alone they had over 1,000 scheduled not two months ago. Now its 50 or less.

    Strange.

  158. It’s a standing issue, Bob and has to be argued as such, which is essentially what Neil is saying here. In California, its not even standing, but factual allegations (damage, too) by a “real party in interest” (homeowner) showing facts that the “creditor” is not the creditor. This is why the Banks went berserk over Glaski. Standing was finally reviewed. They never want that. You have to kill them with facts, facts, facts…and deny, deny, deny.

  159. Here’s the problem. The only folks that can challenge consideration are the parties to the contract. Same argument as challenging late transfers to the trust in violation of the PSA.

  160. It’s called STANDING…Am I Wrong?

    In the United States, the current doctrine is that a person cannot bring a suit challenging the constitutionality of a law unless the plaintiff can demonstrate that he/she/it is or will “imminently” be harmed by the law. Otherwise, the court will rule that the plaintiff “lacks standing” to bring the suit, and will dismiss the case without considering the merits of the claim of unconstitutionality. To have a court declare a law unconstitutional, there must be a valid reason for the lawsuit. The party suing must have something to lose in order to sue unless it has automatic standing by action of law….

    Filing any Foreclosure case against anyone w/ ANY court, anywhere in the USA w/o being HARMED should be NULL & VOID.

    ONE MUST HAVE STANDING TO FORECLOSE…PERIOD.

  161. Java
    Did you apoeal. Thats what appellate court is for. If not – why?

  162. Sue for wrongul and fraudulent foreclosue. See Horace v. LaSalle Bank. Don’t throw in the towel!

  163. nemo dat
    whether they gave small or big consideration to one who doesn’t own the property, it does no good, they did not get good title. If some title insurance company mistakenly or fraudulently sold them a policy that is what it is for and that is where they have to go and who takes the loss.

  164. I bought up most of these arguments including the credit bid…..no one cares !!!!…….foreclosed !

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