Judgment for Borrower: Winning Foreclosure Cases By Challenging Presumptions

For further information please call 954-495-9867 or 520-405-1688

Patrick Giunta, Esq. will be the guest on the Neil Garfield Show next Thursday, 6pm EDT.

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See Final Judgment: PURSGLOVE FINAL JUDGMENT DOC031715-001

See Transcript of Judge’s Order: Pursglove – Excerpt of Trial Transcript

Besides rescission, there are many other heavy duty weapons available to borrowers when it comes to defending foreclosure cases. The assumption that the party named as Plaintiff even knows of the existence of the foreclosure is false. The assumption that there ever was a transaction in which the Plaintiff EVER acquired the loan, the note or the mortgage is false. And the assumption that the “servicer” is the party authorized to manage the loan is false — because they are the agent of a Trust that does not own the loan, note or mortgage. And the assumption that the foreclosing party actually knows the balance due from the borrower is false. And the assumption that there is a default is usually false — especially when you see the balance continue to go down in monthly statements sent after the borrower stops paying (obviously from servicer advances).

While each case varies on the facts, this case is instructive on winning a foreclosure case where claims of securitization are involved. The Banks simply cannot win if they are actually required to prove the facts that they are attempting to get the court to presume. The attorneys of record for the homeowners were Patrick Giunta and myself. Further proceedings are expected for the recovery of costs and other matters. Patrick and I litigate some cases directly and we provide litigation support for cases across the country for lawyers who are litigating foreclosures, many times in hostile judicial climates.

As I have stated in hundreds of articles, these cases are winnable on one or more of several grounds — ownership, authority, balances and default. In this case it helped that Chase had sent out a notice of default the same day they processed a current payment from the homeowner. If the loan was truly owned by the Trust or the Trustee for the Trust, if the default had actually happened, and the servicing had been done properly, there would have been no need to slip SPS (Select Portfolio Servicing, owned by Credit Suisse) and its “boarding” process in to avoid embarrassing questions. In this case the attempt to bull doze the court with a cloud of paper didn’t work. They had to show real facts and they couldn’t. They couldn’t show real facts because the real facts contradicted their position as owner and servicer.

This is one of those moments that makes the struggle worthwhile. The case named the Plaintiff as US Bank “as trustee” for either a trust or certificate holders. As usual, no witness actually appeared for the Trust, the Trustee or the former “servicer.” There was no credible evidence showing US Bank was the Trustee. The Pooling and Servicing agreement said that Chase was the servicer but the Court found that the cutoff date could not have been satisfied. Hence the Trust was being falsely presented as the owner of a loan that it couldn’t possibly own by the terms of the Pooling and Servicing Agreement (PSA). Hence Chase was not the legal servicer of the loan and neither was SPS who produced various Powers of Attorney, endorsements that were obviously backdated etc. none of which gave them any more power than Chase had.

The Court found that the “boarding process” was evidence that could be admitted but then concluded that the boarding process was unreliable, and essentially untrustworthy and not credible. The witness for SPS was found to be credible — but not his testimony — because the information he had was insufficient to justify the claim of default and any claims about the balance. And the Court found that Chase had played with the escrow accounting and it was obvious that if anything, the homeowners had not only paid, but had quite probably overpaid the account.

  1.  This most likely applies to whoever it was that could be identified as Plaintiff — The Trust, the Holders of Certificates, US Bank, SPS (Specialized Loan Services), Chase, JP Morgan Chase Acquisition Corp., JP Morgan Chase, N.A. etc.
  2. The suit was brought to enforce contractual rights contained in the note and mortgage introduced as Plaintiff’s exhibits.
  3. The Court found there was no basis for Chase or SPS to “service” the loan account, collect any payments, maintain an escrow, make any disbursements except as a volunteer, or enforce the debt, note or mortgage. [This sets the stage for a lawsuit for disgorgement of money paid — pretty much the same thing as TILA rescission]
  4. Plaintiff’s counsel announced that they were dropping their claims for anything other than principal and interest — thus dropping any claim for escrow for taxes and insurance, late charges, advances, fees, etc. There was a good reason for this — Chase had been using the escrow account as a slush fund.
  5. SPS was unable to establish that it had the authority to service the Loan account. The Court found they did not have that authority.
  6. SPS was unable to establish that they had the authority to “represent” the Trust, US Bank, or the holders of certificates.
  7. No corporate representative of US Bank appeared. The SPS representative had no knowledge of any books, records or business of the Trust or Trustee. The lawyers were trying to snow the Judge. By diverting attention to the allegation of default, they were attempting to get the Judge to ignore the fact that the borrower didn’t owe these people any money and that previous collections were unauthorized.
  8. No corporate representative of Chase Bank the alleged former servicer appeared.
  9. No corporate representative of JP Morgan Chase Acquisition Trust Corp appeared, nor did the court receive any evidence or proffer as to the existence of such an entity. But it appeared nonetheless in the document trail.
  10. Plaintiff during the latter part of litigation chose to style the case naming as Plaintiff US Bank, NA as Trustee for the holders of the certificates issued by a trust. No certificates were produced, nor any authority for the holders to collect or enforce the alleged debt, and no authority was presented to the court as to the right of the holders of those certificates to pursue foreclosure.
  11. The evidence included as unsigned Pooling and Servicing agreement which included a cut-off date of November 16, 2006 for the loan to have been acquired by a trust through purchase of the debt from JP Morgan Acquisition Corp. The evidence did not include any evidence of a transaction in which the Trust actually purchased the loan for value, much less that such a transaction was completed before the cutoff date. The PSA was relied upon by the Plaintiffs as authority for filing the foreclosure. The Court found that none of the parties variously identified as Plaintiffs or representing the Plaintiffs ever acquired the debt, note or mortgage.
  12. The evidence regarding transfer documents for the loan was not credible. The court found that the debt was not acquired and that neither the note nor the mortgage was acquired by the Trust, Holders of certificates, or JP Morgan Acquisition Trust before the lawsuit was filed. The documents appear to have been backdated because the copy of the note attached to the complaint was clearly different than the note with various endorsements (one stamped VOID) that was introduced at trial.
  13. The Plaintiff failed to establish a credible default date. The court finds that the default letter dated November 3, 2008 was wrong as to the existence of a default, wrong as to the date of the alleged default and clearly wrong as to the amount required for reinstatement. The Court further found that the witness for Plaintiff, while credible, did not have adequate information to answer the simplest questions about the loan account.
  14. While the “Boarding Process” was initially presumed to be adequate to establish the records of the “prior servicer” (Chase Bank), continued attacks in cross examination (and questions from the Bench) later proved the Boarding process and the therefore the previous records of the “servicer” Chase to be not trustworthy or credible — with testimony about “default dates” of July 1, August 1, September 1, October 1 (all 2008) unexplained. In the end there was no default date.
  15. The Court noted that after preparing for multiple trial dates, the sole witness for the Plaintiff could not answer the question posed by the Court: When was the default date? The Court noted that it had taken eleven minutes for the witness, who was still analyzing the report generated by Chase the previous servicer, whose records had been “boarded” by Select Portfolio Servicing claiming to be the successor to the servicing rights on the alleged loan. During that period the witness gave three different dates for default and gave 4 different dates for the last credit to the borrower’s account. The last date conformed with the testimony of the Defendant’s sole witness who said that her last payment was in November, 2008 on the same day that Chase records showed processing for that payment which was the same date that Chase sent out the default letter.
  16. The amount demanded for “reinstatement” in the default letter was clearly wrong and could not be explained by Plaintiffs. Regardless of which figure was used in the default letter dated November 3, 2008, none of the amounts could be reconciled with even common sense. The letter says the the default occurred as of the payment due for October 1, 2008, and yet the Plaintiff admitted receiving two payments — one for October and one for November between October 1, 2008 and November 3, the same day that the default letter was sent out (only 34 days after the alleged “default”).
  17. The Court found the default letter was wrongly prepared even if it was sent to the Defendants, which was doubtful. There was no evidence of mailing the default letter. Hence the conditions precedent in paragraph 22 of the mortgage were not satisfied by Plaintiff or any related parties prior to suit being filed. None these, Plaintiffs or their representatives (Chase) had the right to elect to accelerate the entire debt due as stated on the note and mortgage. The Court found that the acceleration and the default letter were wrongfully prepared and that the foreclosure of the mortgage was accordingly wrong.
  18. The Chase records on handling of the escrow payments, the reversal for “escrow purposes” could not be justified since the monthly payments admittedly received by Chase included principal, taxes, taxes and insurance. Other entries of payments, reversals and transactions relating to insurance could not be explained and would indicate that Chase had at least been negligent in the bookkeeping and accounting for their own posting of entries into loan account for the subject loan.
  19. The Court reserved jurisdiction to consider entitlement and amount of fees and costs to be awarded to the Defendants as the prevailing party in this action.

We have seen numerous cases in which the Borrower won. In this case a Final Judgment of Dismissal not only put the Borrower in position of winner, it established the grounds for a wrongful foreclosure with aggravating circumstances to support a claim for punitive damages in a subsequent lawsuit.

What’s the trick? There is no trick. If your next door neighbor wants to collect your payment for credit cards or student loans you would properly refuse to give him a dime and probably report him for attempted fraud. There is only one creditor in these transactions — some undefined group of investors whose money was diverted into commingled accounts on Wall Street where the money was laundered, dry cleaned and pressed into the service of the Banks who were supposed to be mere brokers. Instead the Banks created the illusion that THEY were the principals. The only way they could maintain that illusion was by getting foreclosure sales in their names. And the only way they could do that was by lying to the court. So far their strategy has worked in most cases because borrowers didn’t realize they were being used as pawns in relation to predatory transactions as defined by the Federal Reserve and TILA.

PRACTICE POINTER: The strategy was not to use up all our arguments against information that was proffered as evidence, but to attack the evidence once it was introduced — hoisting the Plaintiffs up on “their own petards.” Many pro se litigants and lawyers assume that they lost because the court correctly allows a document or testimony as evidence admitted into the record. But the fact that something is allowed as evidence doesn’t mean the matter is proven: for a good trial lawyer it presents a nice target to rip apart false and fraudulent attempts at foreclosure.

 

47 Responses

  1. After two years, agonizing through litigation, I’ve decided not to appeal this go round. I rather decided to live the rest of my time thankful and enjoying what I have. I have family, and nearing age 70 being homeless is frightening.

  2. All I know is my Deed of Trust has a definition, Lender.
    Only one definition and one named as Lender, didn’t even say Creditor, said Lender.

    Two, my deed of trust said the Lender could sell an interest or partial interest in the note, but it NEVER SAID, whoever they sold it to became the new Lender or a Creditor (which by all purposes they were not the Creditor)….and FDCPA gives definition of creditor as one who extends create to create a debt, and the Lender did not extend credit and did not create a debt.

    So, I don’t care if JG holds the note, and johngault I hope you don’t mind me using those initials in this example, if JG held the note, he is not the Lender, nor the Creditor and I’m not beholden to him to pay him anything. JG’s agreement in his interest or partial interest in the note, is between he and whoever sold him the note, and that would not convey interest in the property I have possession of because I extended credit that created the debt promised in the note when I signed the note.

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

  3. Anything but Produce the note = discrimination lawsuit
    Anything but Produce the note = No due process
    Anything but Porduce the note = Corrup

    NEVER AGAIN

  4. Christine = Axis Sally
    http://en.wikipedia.org/wiki/Mildred_Gillars

    NEVER AGAIN

  5. l found something to smile about tonight. “U.S. Bank as trustee” got wiped out in a f/c action by a homeowner’s association. US Bk argued that the cc&r’s stated any hoa dues liens, ess, were to be subordinate to any first mtg lien on a home in the PUD. However, certain (state) statutes prioritized the hoa liens AND the statute said the priority could not be waived by agreement (i..e., in the CC&R’s). Yesterday or so I said parties may agree to anything with a lawful goal and further, that there was nothing in the default law UCC to prohibit them from agreeing to who could enforce, as was done in these notes imo: First of all, the UCC is default law.
    Secondly it doesn’t (and prob can’t imo) prohibit anyone from making any particular agreement in a note or any agreement or contract. Some people may not know what “default law” is, so I’ll try as a lay person to explain it. It’s law which is turned to when a contract or agreement doesn’t resolve an issue by its terms and language or when even after looking at that language and terms, the so what can’t be determined. The UCC will get looked at for a remedy to a problem. The UCC, article 9, for instance, says that when there’s an agreement for the sale of a note, it’s paid for, but not forthcoming, the buyer has a security interest in that note and presumably that sec interest is senior to any subsequent sale of the note by the bad-apple seller. This is somewhat at odds with a hdc; in other words, if Joe then thought he bought the note in good faith, for value, and without notice of the first buyer’s sec interest and rights. I’m not knowledgeable enough to know where that dust would settle, but I believe the UCC would resolve it.
    But, the agreement between the seller and the first buyer wouldn’t necessarily (and prob wouldn’t) spell out the buyer’s security interest in the event of non-delivery, so the UCC does. imo.
    I believe the note restricts the party who may enforce and it’s also interesting that these notes come with successor liability established by state or federal law.

    I think this might be worth discussion:

    “The value of an interest in a contract instrument is determined by the value of the collateral pledged in the instrument. Purchasers generally acquire loan contracts at mark down or discounted prices.”

    http://www.tax-help-guide.com/subrogation.html

    Why would a trust or anyone buy a note in default and with a reduced collateral value? (Some states out right prohibit deficiency judgments, making these deals non-recourse, i.e., no money judgment available)

  6. So… there we have it again.

    JG, who long ago used to post during the day and no longer does, coming up as the last blogger of the day with… some 1998 judgment completely irrelevant to anyone’s foreclosure in 2015.

    I seriously rest my case. The evidence is overwhelming. No Mark Stopa here. No Max Gardner. No Troy Doucet either. Rest assured: NG will still find people to buy his audits, based on his editorials and his bloggers: “There’s a sucker born every minute.” They flock here.

  7. From U.S. v Beggerly (re: equitable relief from judgment) 1998

    “In the years following the adoption of the Rules, however, courts
    differed over whether the new Rule 60(b) provided the exclusive
    means for obtaining postjudgment relief, or whether the writs
    that had been used prior to the adoption of the Federal Rules still
    survived. This problem, along with several others, was addressed in
    the 1946 amendment to Rule 60(b). The 1946 amendment revised the Rule to read substantially as it reads now:

    “(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered
    Evidence; Fraud, Etc. On motion and upon such terms as are just,
    the court may relieve a party or a party’s legal representative
    from a final judgment, order, or proceeding for the following
    reasons: (1) mistake, inadvertence, surprise, or excusable
    neglect; (2) newly discovered evidence which by due diligence
    could not have been discovered in time to move for a new trial
    under Rule 59(b); (3) fraud (whether heretofore denominated
    intrinsic or extrinsic), misrepresentation, or other misconduct
    of an adverse party; (4) the judgment is void; (5) the judgment
    has been satisfied, released, or discharged, or a prior judgment
    upon which it is based has been reversed or otherwise vacated, or
    it is no longer equitable that the judgment should have
    prospective application; or (6) any other reason justifying
    relief from the operation of the judgment.
    The motion shall be made within a reasonable time, and for
    reasons (1), (2), and (3)
    not more than one year after the judgment, order, or proceeding
    was entered or taken.
    A motion under this subdivision (b) does not affect the finality of
    a judgment or suspend its operation.

    **This rule does not limit the power of a court to entertain an
    independent action to relieve a party from a judgment, order, or
    proceeding,** or to grant relief to a defendant not actually
    personally notified as provided in Title 28, U.S.C. § 1655,

    or to set aside a judgment for fraud upon the court. Writs of
    coram nobis, coram vobis, audita querela, and bills of review and
    bills in the nature of a bill of review, are abolished, and the
    procedure for obtaining any relief from a judgment shall
    be by motion as prescribed in these rules or by an independent
    action.” Fed. Rule Civ. Proc. 60(b).

    The new Rule thus made clear that nearly all of the old forms of
    obtaining relief from a judgment, i.e., coram nobis, coram
    vobis, audita querela, bills of review, and bills in the
    nature of review, had been abolished.

    The revision made equally clear, however, that one of the old forms,
    i.e., the “independent action,”[fn2] still survived. The Advisory
    Committee notes confirmed this, indicating that “[i]f the right to
    make a motion is lost by the expiration of the time limits fixed in
    these rules, the only other procedural remedy is by a new or
    independent action to set aside a judgment upon those principles
    which have heretofore been applied in such an action.” Advisory
    Committee’s Notes, supra, at 787.

    The “independent action” sounded in equity. While its precise
    contours are somewhat unclear, it appears to have been more
    broadly available than the more narrow writs that the 1946
    amendment abolished. One case that exemplifies the category is
    Pacific R. Co. v. Missouri Pacific R. Co. of Mo.,
    111 U.S. 505 (1884).[fn3]

    In Pacific the underlying suit had resulted in a court
    decree foreclosing a mortgage on railroad property and ordering
    its sale. This Court enforced the decree and shortly thereafter
    the railroad company whose property had been foreclosed filed a
    bill to impeach for fraud the foreclosure decree that had just
    been affirmed. The bill alleged that the plaintiffs in the
    underlying suit had conspired with the attorney and directors
    of the plaintiff in the subsequent suit to ensure that the
    property would be forfeited. The plaintiff in the subsequent
    suit was a Missouri corporation, and it named several other
    Missouri citizens as defendants in its bill seeking relief from
    the prior judgment.

    When the matter reached this Court, we rejected the contention
    that the federal courts had no jurisdiction over the bill because
    the plaintiff and several of the defendants were from the same
    State. We first noted that there was no question as to the
    court’s jurisdiction over the underlying suit, and then said:

    “On the question of jurisdiction the [subsequent] suit may be
    regarded as ancillary to the [prior] suit, so that the relief
    asked may be granted by the court which made the decree in that
    suit, without regard to the citizenship of the present
    parties. . . . The bill, though an original bill in the
    chancery sense of the word, is a continuation of the former suit,
    on the question of the jurisdiction of the Circuit Court.”
    Id., at 522.

    Even though there was no diversity, the Court relied on the
    underlying suit as the basis for jurisdiction and allowed the
    independent action to proceed. The Government is therefore wrong
    to suggest that an independent action brought in the same court
    as the original lawsuit requires an independent basis for
    jurisdiction.

    This is not to say, however, that the requirements for a
    meritorious independent action have been met here. If relief may
    be obtained through an independent action in a case such as this,
    where the most that may be charged against the Government is a
    failure to furnish relevant information that would at best form
    the basis for a Rule 60(b)(3) motion, the strict 1-year time
    limit on such motions would be set at naught.

    Independent actions must, if Rule 60(b) is to be interpreted as a coherent whole, be reserved for those cases of “injustices which, in certain instances, are deemed sufficiently gross to demand a departure”
    from rigid adherence to the doctrine of res judicata. Hazel-Atlas
    Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 244 (1944).

    Such a case was Marshall v. Holmes, 141 U.S. 589
    (1891), in which the plaintiff alleged that judgment had been
    taken against her in the underlying action as a result of a
    forged document…….”

  8. Alina,

    Thank you.

    I did find the judgment for dismissal (after 20 years in court and a mountain of parties… I wonder how much Pursglove actually paid all those years to defend himself). No trial notes anywhere. Can’t even verify NG was involved. And it says nothing about no one else being able to file again at a later date. I don’t call that a win; I call that a stall. A 20 year-long stall. So does anyone somewhat versed in litigation.

    Sorry but too much BS has been spread here for too long.

  9. Louise and trespass
    The debt is the issue , I checked my credit reports which were somewhat revealing, I’m not done taking that to task either.

  10. jdsupra article

    Florida Appellate Court Holds Dismissal of Foreclosure Action Could Time Bar Subsequent Action
    4/8/2015 by Elizabeth Bohn,

    Dismissal with prejudice or without prejudice what is the mortgage company to do about that statute of limitations.

    jdsupra articles

    Third Circuit Rules FDCPA Claims Can Be Based on Foreclosure Complaints
    4/10/2015 by Martin Bryce, Jr.,

    Law firm stealing the home included attorney fees for services not yet rendered as payment due from the one defending their right to not be robbed of their home.
    So they attacked the debt collection practice, of the debt collecting law firm (who is a debt collector by definition for collecting a debt for another) that violated Federal Law.

    Trespass Unwanted

  11. I agree a dismissal without prejudice is worthless. However, I think the number of lawsuits, class actions and forced settlements is beginning to impinge. Ocwen is getting out of the servicing business. That says volumes. Also, Wilbur Ross is no longer part of Ocwen and servicing either. A big bottom feeder debt collector scu%$ag. It is just taking too long. BTW, here is something interesting about debt collecting: after a certain amount of time (usually 18 months) the debt is written off. They may not collect on that debt again because it has been written off. No double dipping. May be some areas to attack.

  12. She is in Ohio…so I have been told, by others familiar with her, Alina.

  13. For your entertainment – both hours are here
    archive . logosradionetwork . com / rule-of-law / 2014-rule-of-law / 05-02-14-rule-of-law/

    Trespass Unwanted

  14. jg you are right, the getting there is the hardest part.
    But we are getting closer
    void judgments dot com / audio / ROL_2014-05-02_64k_Hr1&2.mp3

  15. DOAN v. WILKERSON, 56591 (Nev. 6-26-2014)
    327 P.3d 498, 130 Nev. Adv. Op. No. 48
    CRAIG A. DOAN, Appellant, v. RICHARD WILKERSON, PERSONAL REPRESENTATIVE,
    Respondent.
    Filed June 26, 2014

    Equitable relief as an independent action

    Relief in equity by independent action may be granted when the
    claimant meets the traditional requirements of an equitable action,
    which are more demanding than the requirements of NRCP 60(b)(l)-(3).
    Bonnell, 128 Nev. at ___, 282 P.3d at 715. An independent action for
    relief from a judgment that has become final or unreviewable “`[is]
    available only to prevent a grave miscarriage of justice.'” Id.
    (alteration in original)
    (quoting United States v. Beggerly, 524 U.S. 38, 47 (1998)).**

    Claim preclusion does not bar independent actions for equitable
    relief because the exceptional circumstances justifying equitable
    relief also justify deviation from the doctrine of claim preclusion.
    Bonnell, 128 Nev. at ___, 282 P.3d at 717 (adopting the reasoning of
    Beggerly that independent actions for relief must meet a demanding
    standard to justify “departure from rigid adherence to the doctrine
    of res judicata” (internal quotation omitted)); see also Amie, 106
    Nev. at 542, 796 P.2d at 234 (“The right to bring an independent
    action for equitable relief is not necessarily barred by res
    judicata.”).[fn3] Society has no interest in the finality
    of a judgment that was procured by fraud upon the court. NC-DSH, 125
    Nev. at 653, 218 P.3d at 858.”

    **Beggerly is actually a QT action filed by the United States!
    Fraud on the court is not the only reason justifying equitable relief. It must have been the reason in the last case cited. This is a case decided on state specific laws, but these same principles will be found in the FRCP’s. One thing this case or another referenced is that one should make the move before not making the move has caused the other party to do something it would rather not have, essentially, in reliance on the ruling one wants tossed mol.

  16. TU at 9:57 first para: right on and left off. I went into this a long time ago and actually, not that long ago by way of an example of a chinese firm assigning a debt to a U.S. company for jurisdictional reasons (the court ruled the u.s. co. was a debt collector essentially, no skin in game x small percentage for collection) But when we don’t know how to make the fraudster prove his skin in the game, it’s for naught.
    Neil is fired because while he touts challenging presumptions, which I’ve tried to articulate ways to do in the past, he doesn’t present any
    mechanisms of doing that. I appreciate a bottom line event, but the how you got there is what matters to those here.

  17. void judgments dot com

    Trespass Unwanted

  18. FDCPA is not the route to follow, it has it’s limits as far as penalties to the offender, but there is more than one door to stop someone from hurting us, we just need to learn how to open them and then close the offenders off on the other side of them, shutting them out of our lives.

    Trespass Unwanted

  19. http://fairdebtcollection.com/pdf/fdcpa.pdf
    15 USC 1692a —– ——- § 803. Definitions
    The term “creditor” means any person who offers or
    extends credit creating a debt or to whom a debt is
    owed, but such term does not include any person to the
    extent that he receives an assignment or transfer of a
    debt in default solely for the purpose of facilitating collection
    of such debt for another.

    ————

    Now by signing the promissory note, the debt was created.
    Debt is created from extending credit.
    The bank took the note, typed in the credit amount (the amount extended) and created the debt, but it was by our signature.

    Notice it does NOT including any person to the extent that receives and assignment or transfer of a debt in default SOLELY for the purpose of ….collection of such debt FOR ANOTHER.

    So tell me.
    Those who are represented in court, suing you for a debt that they were assigned for the collection of the debt FOR ANOTHER, are debt collectors, not creditors.

    See how that applies to the law firm who is not the creditor, and for the law firm representing the trust who is not the creditor but claims to be collecting the debt using the name of the trust for another (debt collector), and for law firms representing the servicer who is supposedly collecting the debt FOR ANOTHER according to the PSA.

    Just consider it, Do they have standing, and what violations are there, and what causes of action and elements can be proven to state the claim for relief?

    Trespass Unwanted

  20. I’ve argued that the language in the note prevails over the default law UCC. See No. 16 of the dot. It doesn’t say that the terms of the note or dot conflict with any applicable law. In fact, it’s written somewhat oddly, except to the extent that it (may) read that the contract will be enforced with the exception of any part which conflicts with any applicable law. That part is standard for contracts (they often say the contract will be enforced ‘as if any unlawful provision is not a part hereto’).
    But, there is no law which precludes the agreement found in the note as to whom may enforce the note (parties may agree to anything between them with a legal goal). What the parties agreed to as to enforcement isn’t by one in possession of a bearer note. In fact, fwiw at this date, imo the language in the note precludes the note from being a negotiable instrument or at least technically enforcement is disallowed based on (mere) negotiation. It’s by one who has taken the note by transfer AND is entitled to payment. (Who IS that and what is the evidence?) I believe the language was put in there as it is to preclude enforcement by the very people who tried to enforce them early on, like in the Boyko days, whether or not those people were thieves or miscreants. If they didn’t have the notes by transfer, they weren’t entitled to enforce. As a party to the note, even though the language was a lender-protection to preclude wrongful claims imo, the borrower should be able to rely on it: only someone who has taken by transfer (not negotiation) and has the right to payment should be after us. Should there even be endorsements on THESE notes? I don’t know, but endorsements are generally a creature of negotiability. I can see that that’s weird since the psa’s called for endorsements, but then again, given what they do and have done with the infamous blank endorsement, maybe the banksters had their reasons for calling for them. In fact, up until recently, there’s never been an endorsement on a note to a trust that I’ve ever seen. The final if not first end is in blank.
    Maybe some serious double-speak (the language in the note v calling for negotiation in the psa’s). Or maybe calling for endorsements was legit as further evidence of movement, and it turned into a happy happenstance for the fraudsters. The blank endorsement, reliance on the default law UCC, and the ‘mers’ assignment is the enemy. Those ‘mers’ (sales and ) assignments are deadly because they can be
    construed to meet the provisions in the note for transfer.
    The judge in the case posted by NG had some issues with the alleged assgt. That doesn’t often happen (x that one case a few years ago when the judge, upon learning the ‘mers-officer’ person who executed it was an employee of the transferee, called it a fraudulent document sitting on public record and sent the bankster off and running with its tail between its leg. And God bless that judge, and by the way, why should that ruling be a fluke? The reasoning was sound)
    But because I see an endorsement as something related to “negotiation” and not “transfer” but the assgt purports to transfer essentially, I’d still ask, if it could be done appropriately (read timely, I guess), on what the reliance is. The negotiation of the note or the transfer alleged in the assignment (but that’s why the mers-free-for-all is so deadly unless it’s changed) Have to start somewhere if you can’t demonstrate anything because all the info you need is singularly in the poss of the other guy. One needs to know the diff between negotiation and transfer, for starters. imo.

    As to bk cases re: proofs of claim. It occurred to me the claimant has to be a creditor. IS a guy in poss of a bearer note a creditor of the debtor? I don’t see it that way, but don’t know really, even if using the default law UCC he has a right to enforce (an unsecured note, where allowed by state law re: mortgage loans – “security first” rule). If a fraudster has his hands on a note but not the dot and he makes a claim in a bk case based on the UCC (negotiation) bearer provisions, he may have caused the note owner to lose his security by making a claim on the note.

  21. Christine,

    If I may be so bold. I believe your confusion arises from the fact that this is a lower court final judgment. In Florida lower courts, many orders and final judgments are hand written. All the information you need is there including the case style and number. However, you are not going to find this on Findlaw or any other national database because it is a lower court decision. If you look closely at the top of the document, the final judgment was recorded in the county records. You could access the Official Records Search page for Broward County at http://www.broward.org/recordstaxestreasury/records/pages/publicrecordssearch.aspx. It is there – I just checked.

    One more thing, although the final judgment does not say much. You have to read the transcript to get full story.

    I don’t normally post but since you were insisting that there was nefarious going on, I thought I would point you in the right direction. Additionally, I don’t know which state you are from but I am originally from Florida and worked as a litigation/trial paralegal (I like calling myself a “lawyer’s roadie) for almost 15 years in Florida. I am very familiar with the procedures and norms of Florida court.

    I do hope this information helps.

  22. Imo a dismissal without prejudice is worthless as T on a bull. The banksters will just regroup and come back and generally win. I can’t tell if this is an involuntary dismissal or not from the transcript. An involuntary dismissal acts as an adj on the merits and rj attaches. Letting a bankster voluntarily dismiss is generally nuts. A way to prevent it is to flle a mtn for sj because then they may not move to dismiss voluntarily (so they may come back).
    Rock said so and so argued his prior rescission as an affirmative defense. Don’t know how it was argued. I haven’t had time to read the transcript; just found it last night. Rescission is an ‘absolute defense’. I liked your take on juris fwiw, trespass unwanted.
    This case does support my proposition that the (alleged) default figures must be exact (no matter where they’re disseminated – to the borrower by mail, by service, or in a recorded NOD). In this particular case (NG), it appears payments were made and misapplied, which will only occasionally be the case.
    MERS HAS TO GO

  23. Belanger, posting more misinformation taken from scam loan auditor’s website. Nguyen won because someone falsified his wife’s signature. Not anywhere near what scammer posted on his website.

  24. Bailment

    Help Take A Bite out of Crime..Attack the Mortgage

  25. Strong oaths, not string oaths
    Sent from my Android that did a terrible auto complete.

  26. Attorneys have oaths to each other.
    String oaths.
    You can tell how they protect the system by detracting from the issues and misleading people into thinking there is only one door to open their remedy.
    If there was one door, the lawsuit would be written a specific way, and be before the same judge and court for every hearing on the issue and he/she would rule the same way every time.
    There is no one door.

    Attorneys write the laws using non Webster dictionary words and they, other attorneys, enforce (notice the word force) the laws upon us and attorneys will expose their professional status and have their BAR card taken with payment penalties; if they expose this.
    Their oath is to keep it secret. Its deeper than taking the property.

    Not many will give up their job or even put it on the line to expose the truth.
    Their oath forbids them even considering it.

    The weed seeds are planted with the good seed.

    Not many others will put their life, jib, professional status, or family on the line to expose the truth. People roll over on traffic tickets for driving when they could protect their right to travel; and I am not the pot calling the kettle black. I have the right to travel and it didn’t come easy using the right i have and I know how to protect my right to travel from experience and my job and family were on the table as I protected that right.

    What attorney with all the college loan expenses to get into the BAR club along with other traps of wealth while being an attorney where being a judge is the ultimate career goal for many; what attorney will give that up to expose other attorneys for writing and coding and voting the fraud into color of law and expose judges for perpetrating the fraud when their oath, which is the strongest contract out there, forbids it?

    We don’t need Neil to represent us. He’s not a god. We have the power to expose through non consent for the contracts offered and none acceptance of the consideration they claim to be giving us when they compel us under coercion to go into their business of court, to rob us

    Trespass Unwanted

  27. The jury awarded Brash $21,350,575, including $20M in punitive damages. PHH says they will seek further judicial review.

    We thought the homeowner who foreclosed on a Wells Fargo branch was the ultimate David/Goliath story of the year, but Brash’s $21M award may have just taken the cake.

    Well in this case (Nguyen v. Chase Bank), the Plaintiff, GOING IN PRO PER WITH A VERY WELL WRITTEN COMPLAINT, socked it to Chase who was also confronted with questionable conduct that it was argued violated the preliminary injunction obtained by the savvy Plaintiff.
    The Plaintiff sent in his rescission letter and made an offer to tender which was rejected by Chase. Under TILA, the borrower must also tender back the loan proceeds received minus what they are owed the lender. When Chase rejected the tender offer, the Plaintiff sued for TILA violations, Forgery, Rescission, and other damages. Mr. Nguyen obtained a preliminary injunction. The Defendants, despite the injunction, filed a Notice of Sale acting in complete indifference to the Plaintiff’s Federal TILA rights.
    At the end of the Day, the judge issued an order that “the Deed of Trust recorded with the Orange County Recorder……is WHOLLY VOIDED……..THAT A DEED OF RECONVEYANCE ISSUE……ALL ADVERSE CLAIMS AGAINST THE PROPERTY ARE QUIETED…….AND THAT THE PROMISSORY NOTE IS RESCINDED…….
    Folks, if you were wondering why we have been shouting from the rooftops that if your refi loan was in the last three years, you should get a mortgage documents analysis from a qualified loan auditor or legal professional. This case shows the potential power of TILA, as we state on our website, is perhaps “your most powerful weapon” to battle and win the war on foreclosure.

  28. NPV,

    Right!

    Shark Tank allows you to see winners. LL makes out winners out of thin air and won’t allow you to see anything. In a way, Shark Tank is more… honest! The proof is actually in the pudding: any winner here?

  29. @ Christine – shark tank is much different – you only see the winners. kinda like that show flipping Vegas. i guess sponsors would not support a show if the common homeowner came on and said javier screwed me on the tile job and carmine destroyed the plumbing, and i lost me ass on this flip.

    Neal, please provide the full caption and I will read it myself. A dismissal is only a dismissal if they have to at a minimum refile. If they have to refile – that is a win. Maybe not the entire war, but certainly that battle. i want to read about the battle. Please post the full caption or index number and i will dig it up.

  30. Garfield,

    “See Final Judgment… See Transcript of Judge’s Order”

    Should be public knowledge: judgments are not subject to confidentiality agreement. Care to post the entire caption so that we can find and read it for ourselves?

    Or do you really believe your readers are such morons that they will keep on swallowing forever the BS you write?

    @NPV,

    I know you want proper tools to be pooled, in order to truly help homeowners. Can’t happen when everyone is pulling the cover toward himself and using every trick of the (dishonest) trade to make money from squeezing the lemon to its last drop. LL wasn’t about helping homeowners 7 years ago and it still isn’t. LL is into making Garfield money. Just like Shark Tank!

  31. “If people coming here…” Typo.

  32. Well Rock,

    I’ve been claiming that same “give me the exact caption of the case and let me read it for myself” for 5 years. There’s an agenda here that I do not particularly respect and I believe is intentionally misleading. As I have said over and over, Garfield makes out like a bandit and doesn’t have much ethics.

    Of people coming here still don’t get it and keep attacking me over it, then they deserve everything they get from associating with him.

  33. Christine, like I pointed out, this was no win.

  34. And Kathy Utiss,

    From personal experience, Chase Home Finance, originally located in Westerville OH (second HUB for JP Morgan Chase) has not existed for a sweet long time. I believe the whole operation was closed in 2011 or 2012. Which, incidentally, was a big basis for my own case as I was suing Chase Home Finance looking to see who would step in to defend it.

  35. Well Rock…

    I googled the info given here and, as usual, I found something irrelevant, originally filed over some credit card debt, going in every direction and all over the place, just like one the many cases filed by Anonymous way back when.

    I have tremendous difficulty with half-ass information which does not even allow me to read the actual case and pleadings. And if you add Patrick Giunta and Neil Garfield to the research, you hit a wall. No time for those games. If Garfield were serious, he’s made sure we can easily find cases he refers to. Otherwise, it follows the old pattern of giving half info and editorializing over fluff to purposely mislead. We can all read. We should be able to do it for ourselves and draw our conclusions.

    http://caselaw.findlaw.com/fl-district-court-of-appeal/1065981.html

    Nothing current and nothing remotely close to the fairy tale told here. Call me biased…

  36. To: David Belanger….is it possible for you to contact me…please send me an email at feet4fins@yahoo.com

  37. Christine, its a state case argued in Broward County. That’s from what Garfield had in his post.

  38. Rock,

    Did you find it? Is it a state case? A fed case? What’s the caption? It’s been my pet peeve all along: Garfield has NEVER given the entire caption of ONE case he’s referred to. EVER!

  39. iwantmynpv, haven’t read the case, but Garfield like all of the rest of the others claiming victory, their so-called wins are nothing but stalls in reality. Show me one case where a homeowner received remuneration and/or free title that they’ve won–that is a victory!

    BTW, from what little he posted, guaranteed its only a stall.

  40. NPV,

    Can’t find that case. Do you have the entire caption?

  41. Now, to all of the naysayers – Mr. Garfield has posted a case that he litigated and won. Now I want to see the folks who say he’s never won a case review the decision and seriously think about forming a merged product that incorporates both products. Storm and Neal – it is time to step up for the best interest of us all. God save the Queen!

  42. well well , look at what i found out doing some research, on the limited power of attorney, that was put on my land records, from wells fargo bank n.a., as trustee. to and given ocwen loan servicing, llc the power to do what ever they want to do with al the trust, that were on the attachment. mine is one of the trust. on list.

    this go’s to the fact that they are still using forged doc’s and robo signers to do the signing,

    signing as trustee, is julie eichler,as vice president, now its nice being a vice president. right. i have her business card as of june 18 2014, her job at wells fargo & company is,.( training consultant. ) now she signed a legal doc, that was put on my land records, on 2 august ,2013. as vice president.

    the notary , is kathleen a dean, howard county , maryland, now i look her up, and i have found about 6 to 8 different signatures of this person, as of now.

    so i call howard county court house , to get a true copy of her signature that she gave them, in the record books as her true signature, cant wait to see what come’s in. they will be sending me a true certified authenticated copy of her signature.

    so they are still using there wells fargo foreclosure manual. thats for sure.

  43. Produce the note (+deed of trust) = due process
    anything else equals coru

  44. Eric Mains v. Chase, Citi, WaMu and a host of others, where he present a RICO case about the FDIC and Chase allege purchase of WaMu assets.

    What I find so amazing about the Sept 25, 2008 deal is that there no mention about the 1.3 million WaMu loan that were and are currently being serviced by Wells Fargo.

    Freddie Mac within a month they lose a $2.9 million case that only had a $145,000 balance and a bankruptcy case where in both cases ownership by either Wells or Freddie could be proven.

    So what does this say as Wells is shutting down that Milwaukee mortgage servicing center that all these loan are housed out of? You got total 1,000 personnel working out that servicing center plus the Robo signer who testified at the $2.9 million award that still employed, but all the 1,000 workers are being laid off!

    There no way this does not explode because there are a few dozen of these workers that know whats been going on, and now it time for self enrichment to work because your talking about an foreclosure rate during 2008-2010 of around 4% per year for government insured loans.

    So we know for a fact Ginnie Mae does not originate, buy or sell a home mortgage at all, however we do know that Freddie & Fannie are suppose to buy loans, why why in the two cases in Holm & Franklin could they not produce a receipt of the purchase? Is it what Neil was saying that the funding not originally from the banks and Freddie up-fronted the monies and actually funded the loan making it impossible to use the up-front receipt to prove a post loan purchase!

    In the Holm case you had a 7 year battle where a simply receipt would have won the case for them! There must not have been a present in Florida of WaMu, because there not a single government insured loan pooled that can be either modified or foreclosed.

  45. Tons of fraud throughout the alleged litigation process. Fraud on the court up the ying yang. As long as the homeowner does not get due process, this will keep going. The trusts do not have your loan. My loan was dated 2006, and the latest assignment states 2013. How can that loan be in the trust if the trust closed in 2006? The forgery is so obvious.

  46. I’ve been fighting this in 2004 I found its more than anything you talk about Neil. You seem to know your stuff.

    Yet you won’t disclose to anyone about the fact that Chase Manhattan Mortgage Corporation now Chase Home Finance uses The LOGS network like 99% of these FRAUD PRODUCING CORPORATE ELITISTS! YOU KNOW they are over 35 of America’s top law firms, and in bed with every servicer, title co and judge playing golf! You know they write these laws that have produced this FRAUD GOV UPON US ALL. Yet YOU ARE SILENT IN STOPPING THE FRAUD! This is more than mortgage FRAUD!

    I BELIEVE American’s should know they’ve been hood winked by so many attorneys who claim to be on our side to help fight the good fight. Why not tell them the TRUTH!? Our identities were stolen prior to birth. Along with ownership records for land patents any mining assets of our ancestors.

    Hell it gets even better you get to find out your family had the 1st rolling steel mill in Dallas..Helped build the 1st STEEL BRIDGE in the world. They even provided the stone for several courthouses all over Texas! Yet you can’t be told.

    It’s so interesting to me that my Great Grandfather had a sideshow that traveled the country no less known as ‘THE HOLLYWOOD SIDESHOW!” IT’S ALL A SIDESHOW as come to find out everyone in America know’s my great grandmother by her WORLD FAMOUS FICTIONAL NAME. AS everyone knows her as Katie Scarlett O’hara as in Gone with the Wind!

    i SOMEHOW don’t believe the lies with what I can prove! LIVING PEOPLE count on every attorney to be given the BENEFIT OF DOUBT in trying to do the right thing. Work to pay bills 1st b4 anything else yet are looked upon like the dirt on your shoe as they pay out the ass for representation! If they can even find REAL REPRESENTATION! You do a lot of work why keep up with the SIDESHOW and NOT REALLY HELP HOMEOWNERS! THIS IS THE 21ST Century American’s have had enough.

    These people with their claims of a FIDUCIARY DUTY need to KICK these PEOPLE AND METHODS TO THE CURB. American’s deserve a government to protect them if and when it’s necessary! This is NECESSARY! Rebuild LIVES, AND THE WORLD, and our FINANCIAL SYSTEM. it CAN BE DONE!

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