Breakdown of the Robo Signing “Scandal” Settlement —- Another Elephant in the Living Room

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See http://www.marketwatch.com/story/us-breaks-down-93-bln-robo-signing-settlement-2013-02-28

The story is about how the settlements are broken down. But the significance of the story is that the government is not taking the next logical step.

The settlement with ten of the banks was first announced on Jan. 7 and separate settlements with HSBC US:HBC   and two other banks came later in the month.

At issue are deficient practices on mortgage servicing and processing, improper fees, wrongful denial of modification, and the robo-signing scandal — the practice of assigning bank employees to rapidly approve numerous foreclosures with only cursory glances at the glut of paperwork to determine if all the documents are in order.

The articles breaks down the payment of fines, which from prior reports appears to be levied against the investors by the banks who committed the wrongful acts. If the practices were DEFICIENT or IMPROPER or WRONGFUL, why is there not also a breakdown of what exactly was done and why it matters.

If the Banks are paying fines for actions leading up the foreclosure then why is the foreclosure being treated as presumptively valid?

Why are we treating the note and mortgage as presumptively valid because they are “facially” valid when we know for a fact that improper, wrongful and predatory practices were used at the closing?

How do we know that ANYONE in the “foreclosing chain” has any economic interest in the outcome — except for recovery of “servicer advances” and barring liability for refunds and repurchases for the bankers that created pandemic title problems and gross fraud against the investors, the borrowers and others.

FORECLOSURES SHOULD BE CONSIDERED PRESUMPTIVELY INVALID, GIVEN THE INFORMATION IN THE PUBLIC DOMAIN THAT INCLUDES ADMINISTRATIVE FINDINGS OF WRONGDOING.

Our government is complicit in the continuing fraud on investors, borrowers, taxpayers, and the States who had to scramble to “process” (code for expedite foreclosure) an unprecedented wave of foreclosures. The economy, the pressure on state judiciaries, and the pressure on state and Federal economies, would ALL believed if the following was actually implemented. I would point out that many of these suggestions or guidelines have been enacted in some states, resulting in a huge drop in the number of foreclosures.

  1. A party seeking foreclosure must file with the claim in both judicial and non-judicial states, copies of actual transfers of money in the chain relied upon by the foreclosing party. This would be in the form of wire transfer receipts, ACH confirmations and canceled checks.
  2. A party seeking foreclosure should clearly state by affidavit the identity of the party owning the debt (not the note or mortgage).
  3. A party seeking foreclosure should clearly state their claim as a holder, a holder with rights to enforce or a holder in due course.
    1. If the party states that is only a holder, it should not be permitted to foreclose.
    2. If it swears in affidavit form that it is a holder with rights to enforce the note, then it should show all documents that specifically grant the right to enforce, the party on whose behalf the note is being enforced, and proof of ownership of the debt by the party named as the party granting the right to enforce.
    3. If it swears status as a holder in due course, then it must show satisfaction of the four elements that form the basis of its prima facie case:
      1. Purchase for value
      2. Delivery of Note and history of deliveries
      3. Acting in good faith
      4. Without knowledge of borrower’s defenses
    4. If no holder in due course is named, then enforcement of the mortgage should not be permitted.
    5. If the owner of the debt is different than the party holding the note, then the enforcement of the mortgage should not be permitted — unless a nexus is alleged and attached to the lawsuit as an exhibit and as an exhibit in non judicial actions when a substitution of trustee is filed, when a notice of default is sent, and when a notice of sale is set.
  4. The party seeking foreclosure must show a chain of actual financial transactions with actual proof of payment starting with the loan and continuing with each alleged transfer of the debt, the note or the mortgage.
  5. Courts must be prohibited in foreclosure cases from using presumptions that conflict with the known context along with conflict in the credibility of the party proffering evidence. The “facially valid” presumption should either be eliminated in these cases or discovery should automatically include proof as outlined above that the “facially valid” documents speak the truth as to the underlying transactions.
  6. Discovery requests should be presumed allowable if it relates to ownership, balance, or default. Objections or refusal to answer should result in sanctions against the foreclosing party and if the party persists in stonewalling it should result in involuntary dismissal of the foreclosure or sale.
  7. Any claim in any venue for any purpose that a party other than the lender designated on the mortgage and note must be accompanied by a sword detailed history (with exhibits of actual transactions and agreements) of the chain of money, the chain of ownership of the  debt, the note and the mortgage and the existence of a default.
  8. If servicer advances were paid to the creditors, the sworn statement must explain in a sworn statement with exhibits the amount of such payments and the basis for declaring a default on the part of the creditor.
  9. If the servicer is pursuing foreclosure because it is the only way it can present a claim for “recovery” of servicer advances, then it must submit a sworn statement with exhibits, that shows each distribution to the creditors, and that shows what bank account the money came from and the owner of the bank account.
    1. The servicer must explain whether it is “Secured” by the mortgage that is sought to be enforced.
      1. If it is not secured by the mortgage, then it must bring a separate action against the borrower. If the only claim is the servicer advances, then the foreclosure must be involuntarily dismissed.
  10. No records shall be admitted in court proceedings or acceptable in non court proceedings as business records qualifying as an exception from the hearsay rule without an affidavit from the actual records custodian of the entity for whom the records are being proffered and an affidavit from a person with actual personal knowledge as to how those records were prepared, the methods of processing data, and whether the records consists of verified data or if they rely upon assumptions, and if so, a detailed list of those assumptions.
    1. Persons hired to be professional “witnesses” with no other connection to the entity that employs them should be deemed as legally incompetent to testify.
  11. The burden of proof on conditions precedent to bringing the action shall at all times be on the party seeking foreclosure. This includes the existence of ownership, balance, and the presence of a claimed default on behalf of the owner of the debt. This conforms with existing law where the party seeking affirmative relief must provide all information related to the subject matter in dispute where the party is sole party with access to those records and witnesses.
  12. If a transaction is void under the governing law of any State, it cannot be admitted into evidence. If such a transaction is relied upon by the party seeking foreclosure in proving the debt, the note or the mortgage or any transfer then the action for foreclosure must be dismissed with prejudice.
    1. The transfer documents and the governing documents of the party claimed to be the owner of the debt, note or mortgage are relevant and must be offered in evidence upon the testimony of a witness who has personal knowledge of such documents including but not limited to the Pooling and Servicing Agreement of a REMIC Trust, if any, the Prospectus, the distribution reports to investors, assignment, endorsement or other evidence that explains the transfer of the debt.
    2. In cases where the debt, the note or the mortgage is subject to claims of “Securitization” the party relying upon such narrative shall be required to prove that the debt, note and mortgage was acquired by the REMIC the Trust and remains in the sole ownership, care, custody or control of the party claimed to be the owner of the debt, the ntoe and the mortgage.

The above is not the law of any specific states, most of which ignore the precepts outlined above. Consultation with licensed attorneys is required before any part of this article is used to make any decision or take any action in contesting the debt, the note or the mortgage.

16 Responses

  1. Michael
    Apologies, most of us on here have been confused as he#% for five years or more, lol.

  2. Now I’m not criticizing Neil or anyone for that matter I stick to points that seem pertinent ! So if the closing table was where you must place the blame consider the harm issue – how who when where, with specific particularity that you can prove later because if you can’t…this is why Neil stresses get council – I did and now I don’t – long story…anyhoo, let’s look at who harmed who- for sure they are going to bald faced get control of the fact finders saying you didn’t pay, so make sure that issue is drowned in your pleadings. The harm resulted after the bubble burst there was market inflation, as Devils advocate, again who when where how were the parties to closing to blame- at this point you may start to sound like a conspiracy theorist so they can twist this in their favor. Back to blaming,
    remember median home price outstripped median income, showing a disparity – of course no one realized or thought to check because we assumed shared risk and it being mutually beneficial contract, buyer beware doesn’t come into it, but they try that too!
    my Best bud brought this to my attention he said “had you bought the house any other time you would have done well!” So that reinforced my belief in my reliance on certain people one being the appraiser who answers to the builder/developers underwriter and the associated criteria and professional due diligence standards approach ( USPAP) but also to the reliance and trust of secondary market participants- now there’s individuals who may have there own defenses also- I’m just saying again, not an attorney, but the bottom line is why I signed, and it’s simple the house had equity went up 150k during the year it was built being 06- 07 the height of the real estate bubble market – this deal was my retirement nest egg and I was induced by the market value of it to invest, what’s so different between myself and the investors who thought they were getting AAA rated/ backed investment value – so we are now launched into a huge securitization pyramid PONZI scheme and yet expect a jury to find for us, a very hard task especially for pro se litigants- here is where Louise is similarly situated.

  3. Hi M C J and Deb,

    I am confused as to the message you are sending. I wonder if I am correct you believe I am “SOL” w regard to tolling?

    If so, I should say I sent letters to the investigators describing multiple federal violations that, because this fraud also embraces banking and insurance institutions, each enjoy ten year statutes.

    Insofar as, apple cider: I think I would rather turn them into a ragged, smoking hole with trace elements of human DNA as best exemplified by random chunks of flesh and bone in place of where they once stood.

  4. I’m just sayng that if someone were sending me unsolicted emails that upset me, I would block them. Then again she could be here sharing her win. ( she couldn’t be gagged either). But thanks to The Daily Tattle and her Reportng she’s not here to defend herself, not that she has to. But you know that and yet you … Never Mind. Micheal, there are bad apples in every basket on both sides of the table. Make Hot Apple Cider ! 🙂. Deb, I. Agree 100 percent.

  5. Never legal advice – just suggestions for your own research as always

  6. So Michael
    You tolling re SOL if you are suing – did not commence until you discovered those material facts. Just saying. Get case law

  7. Folk what have I been saying the day I first started posting here over two years ago, and have stated this exact argument to the SEC in Aug 2011! So Neil not read a thing here until recently or what? Better late than never I guess!

  8. Hi guys,

    It is only a suggestion and it may not pan out for a lot of people, but, I suggest everyone make an impromptu, unannounced appearance at the law firm that did the closing.

    In my own case, I did so and was rewarded with handwritten notes to a conspiracy to defraud my family, two banks and an insurance company.

    In 2005, my family was exploited on our purchase of a house that had had the interior destroyed by fire long before my family had anything to do with it.

    Our own attorney and his wife and legal secretary participated in the scheme.

    Since our acquisition of the file and evidence within, we now realize the individual that posed as the “Lender” was, in fact, instead, employed by the bank that owned insurance and a $200,000.00 lien on the burned house.

    This same individual, employed by the “lien-holding” bank used his personal Platinum Plus Visa card to fund $43,000.00 as a “CASH ADVANCE” which was then, in turn, used to finance a second mortgage we were coerced into signing at closing.

    The same amount shows up on the HUD form, line 507, and, when I sent complaints through the NJDOBI and CFPB, the actual Lender, Gateway Funding dba Ivy Mortgage claimed in three conflicting responses, alternately: “he collected that fee as a “Seller’s Agent” (fraud and federal crime); “he collected that amount for unknown reasons- we didn’t prepare the underwriting documents” (violations of RESPA, TILA, etc.; “he collected that sum for reimbursement of a personal loan (common law fraud).

    It is common law fraud because the record of money paid out and notes the conspirators used to defraud my family shows up as “handwritten” along the margins of the credit card statement and also along the margins of the “HISTORY SUMMARY” for the $200,000.00 lien.

    The “personal loan” they claim is no such thing. Instead, it is definitively shown as 8 payments on the lien, “interests payments” on the “CASH ADVANCE”; a payment they claimed alternately as “moving expenses”, “taxes”, and, money owed for the third mortgage we were also coerced into signing, “outside closing”.

    Had the attorney that claimed to represent us at closing not died; had I not gone to collect his file shortly thereafter; I would still know I had been defrauded, but I would have no idea who had done it or how.

    I know everyone else may not have the same fortune… but … it might be worth a try.

  9. I’m going to react to this once: she’s a loser, period! People have the “right” to be inept, inconsistent, unprepared, whatever…they are merely people with failings and need to learn, in their own way! , christine is an abuser, her unsolicited berating of others, sheer hateful/hurtful oratories, UGH. The help she needs is psychological, not legal…blocking her is not the issue. Her neediness is opaque and glaring. At the end of the day, wins are subjective and legally competent people understand the variations of remedies under the law…staving off foreclosure is such a minor piece of the puzzle.

    And if christine finds me compelling and important, it is not I who need to check myself… she’s ordinary, chasing one stream of information and relief…very short-sighted from where I sit. Her prerogative though! FYI: cookies, take this from me…you and she do not know anything about me….I care less. Her win is just a blip on the radar. A house is not a home… clueless! Life is so much bigger than her nonsense and extreme efforts to try to intimidate good people into her “barren soul”….

  10. The Definition of Bribery
    http://legal-dictionary.thefreedictionary.com/bribery

    NEVER AGAIN

  11. You could block her Poppy. But you won’t do it because you know she won too! As for Louise, pffft! The experts here don’t correct me for a reason.

  12. And Louise
    You are brave and one of a kind. Chin up and onward. We are all rooting for you.

  13. Ella
    The words I now cherish are as follows : admissible evidence that backs your factual basis of your pleadings, particularity in your pleadings, case law, shepardize, succinct, timelines timelines timelines, and check mate!

    Not an attorney – but this much I learned

  14. Natalie:

    Good morning. FYI, interesting read whenever
    you have time. 😃

    Michael
    Sent from my iPhone

    >

  15. louise: This was in my email, directed at you I guess…this out-of-control Ohio person, should be prosecuted IMO…unsolicited emails and constant attempts at badgering people is scary. Neil gave her a free pass, now it knows no bounds.

    I’ll block anyone, any day of the week, but I still can send things to stupid people who accept my e-mails and won’t block them because… no life and Gawd forbid they’d miss out on a good gossip and a reason to complain and gather hyenas friends to join the chorus!

    FBI! CIA! NS! HS! Come and rescue me!

    Nope. Ain’t gonna happen, regardless how many medals from the military, killing civilians in so many countries…

    So, here is to stupid as stupid can be. “My Hero! Louise, you’re my Hero! In Bachmann’s song, to whom again? “The man! You’re the man!”

    louise, on October 14, 2014 at 4:59 pm said:
    Unfortunately or not unfortunately, I will have to appeal. It went well the first day but OPp. counsel made me into a grasping woman who is RIPPING OFF OCWE ARRGHHH!
    Judge took out most of the causes of action and then dismissed a bunch of the defendants including MERS. They did not take up the issues about obvious forged signatures. It wound down to: She believes in conspiracy theories and did not pay her mortgage even though the judge kept the breach of contract issue in place. I am going to file post trial motion for new trial. Problem is I have Lis pendens in place that holds the house, but I am appealing. Opp. counsel can move to cancel the Lis Pendens. I do not know how to bridge the gap. Any ideas out there?

  16. I have several people ask recently about what needs to be done at the foreclosure hearing and the answer is always the same. Raise the issue of the money trail, proof that the party bringing the suit is the party harmed. They can’t. I also believe after sitting in on lots of hearings that if you don’t bring these issues up early on, you may lose them on appeal. I realize that the superior court appeal is de novo but I have also read cases where the homeowner lost out because these issues and others were not raised at the clerk’s level. Consistency is the key to making these charges stick all the way through the process.

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