11th Circuit is Getting It

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

This article is not legal advice on any case. It is not a substitute for the opinion of a lawyer licensed in the jurisdiction in which property is located.

Listen to the Neil Garfield Show on Blogtalk Radio every Thursday at 6PM EDT.

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see http://www.housingwire.com/articles/34966-mortgage-lawsuits-against-bofa-citigroup-and-wells-fargo-resurrected

Everyone knows the phrase “The wheels of justice grind slowly.” Here is an example of what happens when the courts catch up with reality. Remember that it is not the job of a court to go out and do investigation and research. The court is there only to rule on what is brought by the parties. The hatred of the courts in foreclosures is misplaced; although I do think that the rocket docket was chilling access to the courts. But the basic premise that there was something fundamentally wrong with the entire bank scheme could only be accepted after the courts had seen many cases with the same questionable elements and where the questions became better framed by lawyers and better presented and argued.

The big hurdle has been the distance between the actions on Wall Street and the consequences of what happened at ground zero where the loan occurred. The very thought that that loan did not exist, despite consensus that money showed up at the illusory “closing” was and still is unfathomable to many judges — but not all of them. The thought that the banks would target the must vulnerable members of society because they could sell those loans as though they were high quality, virtually risk free loans at an enormous yield spread premium, was neither known nor presented in many cases. Don’t blame the Judges. Let’s get to work.

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In this case, the big TBTF (Too Big to Fail) banks took advantage of the complexity of the loan structures they had devised and lured homeowners into a virtually guaranteed — but fake — default; many of those homeowners had property in their families for generations. Entire cities were destroyed across the nation by having an army of sales people knocking on doors, selling more than 400 different styles of loan products, promising things that could and would never be. In Florida alone 10,000 new sales people appeared — each of whom had a criminal record for economic crimes.

The City of Miami sued in Federal Court saying that they were stuck with the bills for these communities that were destroyed, reducing the established tax base and causing enormous expense to the City for abandoned “zombie” homes caused by foreclosure and then abandonment by the banks. One might ask why the banks would go to the trouble of foreclosing if they were only going to abandon them? The answer lies in the depravity of the bank’s actions.

Their goal was to obtain a foreclosure judgment not on behalf of any creditor, but for the benefit of a “Master Servicer” of a nonexistent trust. The investment bank who was masquerading as a servicer could then stop making “servicer advances” and “recover” money paid to investors. The Investors were lulled (by receiving payments they thought were from the proceeds of loans that were in the REMIC Trust) into a false sense of security about the certificates they held. The insult added to injury is that the money which the investment banks are collecting from foreclosures as a claim for servicer advances is actually the “recovery” of money that was advanced from a pool of funds created from the money “invested” by pension funds and other investors.

THAT meets the definition of a Ponzi scheme. But in this instance, the wrinkle was cleverly designed to include the clues in the disclosures (prospectus) to investors. It’s possible that no laws were broken based upon THAT. But the fact is that the “IPO” of the REMIC Trust certificates produced trillions of dollars in proceeds that were NEVER delivered to the Trust, the Trustee or anyone working for the Trust. That of course is theft, but also securities fraud that is NOT within the exemption from regulation because the securities were NOT mortgage-backed as advertised.

Any lawyer reading this can easily see that the “creditor” was suffering no default at the time the foreclosure lawsuit was filed, because they were receiving monthly payments, albeit from their own money. It is also increasingly apparent that the creditors were intentionally cut off from the paper instruments executed at the illusory loan closing. Hence legally the creditors have no right to the note or the mortgage nor any responsibility for the defective disclosures. AND THAT means the creditors at present have no direct claim for the money they involuntarily loaned to borrowers instead of it being invested in the REMIC Trust.

So why the foreclosure? The answer should have been there isn’t any lawsuit because there is no default and the chain of title is fatally defective — leaving creditors (i.e., the investors) with unsecured claims for money that was actually loaned to borrowers. It is ONLY when the “Master Servicer” stops making payments to the investors that the creditors experience a default. Those payments are set by an entirely different formula than the one set forth on any of the promissory notes and they continue regardless of whether the borrower makes monthly payments.

So what you are going to see in this case is different. The 11th Circuit has stated that the damages are NOT too remote, that they COULD easily have been foreseen and that the conduct of the banks created the damages, according to the allegations of the complaint.  This is  paradigm shift giving critics of government policy a lot more credit for what we have been saying for years. These losses by the City of Miami should not be added to the burden already suffered by the people who are, or who are threatened with foreclosure. Some balance must be struck between the parties who have been effected. The only party that has not been required to bear their share of the losses are the banks who created the mess in the first place.

75 Responses

  1. I don’t think Bob G. has solicited anyone for business on here.

  2. IN REM jurisdiction (A.K.A. Law Merchant/Admiralty) can only be heard in federal court according to the constitution… if your county or state court has done an IN REM or QUASI IN REM action on you or your property – you have the RIGHT TO DEMAND a federal question to be heard in federal court! a Declaratory action.. to ask “WHERE THE FORK DID THE GET THAT?” and… “IF THEY HAD THAT, WHY WAS IT KEPT FROM ME?” and “WHERE IS MY STATE?”…. think about it….

  3. Thx Greg in research mode myself

  4. SC before Dwight made his post about the board I was going to ask can you give a quick summary of ur case, not legal advice? Are you arguing against filing rescission and what was result of ur case. I don’t think it’s about being pro se as Garfield has warned but staying OUT of court trap or turning tables w TILA rescission. But if people are in court information can be helpful since there is no cookie cutter.

  5. Dwight… You don’t get it.
    What you are asking for is Legal advice ……
    If you are not an board certified attorney…..you can get your grrraaass put in Jail.

    Your requests in addition to questions of a legal nature must be addressed directly with your attorney.

    We are not attornies and do not give legal information.
    You really can not be surprised people are not willing to go to jail for you..can you?

    Oftm. …lawfirm

    JG… The indentured party.

  6. The problem with this message board is that most of the contributors either copy & paste laws or cases without giving any brief explanations of who or how they are relevant in regards to the readers, most of whom are Pro se due to the pathetic state of the incompetent legal community, and fail to explain how these new found pieces of info should be incorporated into the Pro se litigants case. Nobody ever takes the time to re-evaluate the info found and organise it in a manner that can help the readers understand how they should answer the complaint. How they should assert the affirmative defenses. Should the answer Deny that a Default occurred? And how does the defendant prove that no valid contract was consummated if you cant even get Discovery? With everything we have found over the years, nobody takes the time to organise the info every once in awhile for the benefit of the readers , it just keeps going deeper down the rabbit holes until only a mere few here are able to understand how and why it can be used in the foreclosure defense , how to raise this info in court, how to assert it and make it a part of your defense .. Other comments add nothing of value when the writer posts short one liner quips that only she understands. To make off the cuff riddles and rhymes that only pertains to your private secret case is of no value to the people reading. If you are going to constantly be posting on every thread, then at least once in awhile take the time to sum up everything you have learned and condense it into a short post that might be helpful to homeowners looking for help and understanding on what basic steps to use in forming a Defense.

    From everything you have learned. .. Can you write a post summing up how a pro we homeowner should answer a FC and what important defenses and arguments should be raised and asserted ..and how to make the court address them …all of the info is great ..but without explaining how to use any of it, readers are left frustrated. The problem everyone is facing is that they cannot find competent lawyers. The next problem is as pro we they don’t know what of all this info they should use in their answers ..or what should be used in a motion .. What I’m asking for is ..for those who understand all of this, do a favor and break it down into the basics of how you would use what you learned in answering a complaint … When you find something of value tell the readers how you would attempt to raise it in a case , thank you.

  7. TU at 9:38: right on. Fighting for one’s home is a lonely business. If it weren’t for this site and others like it, many who fight on might have folded long ago. It’s not false hope (even if sometimes info is useless to anyone in particular or even bad info). It’s comradery with a beneifit in that many posts and comments are of real value to readers. imo.

  8. good catch, sc. I’ll put the cells to work fwiw, but from the hip, just a typo.But I do think I know what you’re implying – that the servicer, or at least not the home loan borrower, is the party indentured to the trust. Well,, I suggested that long ago since I believe it would be a consequence of non-delivery, long and short. As a peasant, I doubt I can help anyone in particular nor am I authorized to do so, but this stuff is all such baloney, hard not to try to chip in to get rid of it and on that note

    MERS HAS TO GO

    If I got it right that servicers are getting note rate interest on their advances and claiming right to reimbursement under ANY theory, esp after making predatory loans and foisting them on others, and in making the advances to get that note-rate interest and artificially jack up the value of the derivs, hard not to try, “How to sell this oinker and get the return, anyway”.
    And then a bankster, executes a POA for reliance by dupes aka borrowers, h.o. defense attorneys, and courts alike to a party it claims has the job in the first place. So I’ve personally lately sort of gone from wth to wtf, which, incidentally, are both questions, not answers. But people need to try unless they want to give up, acknowledging there’s no answer, no remedy. It’s hard to roll over and sometimes the stress gets the better of us.

  9. Hi Shadowcat

    Who pays the notary please?

  10. The servicer selected by the sponsors of the trust may have to foreclose if the borrower (mortgagee) does not make payments as required by the MORTGAGE DOCUMENTS.

    What a hoot!!!

    The mortgagors mortgage the property to the mortgagees.

  11. JG…I find it interesting that US bank as trustee refers to the borrower as the mortgagee.

  12. SUBCHAPTER C. HIGH-COST HOME LOANS

    http://www.statutes.legis.state.tx.us/Docs/FI/htm/FI.343.htm

    Texas but indicative

  13. “U.S. Bank, as trustee for thousands of securitization transactions involving many millions of mortgages,
    is often mentioned in media reports about foreclosures. While trustees are listed on mortgages, and
    therefore in legal documents as well, as the owner of record, its interest is solely for the benefit of investors. The trustee does not have an economic or beneficial interest in the loans and

    has no authority to manage or otherwise take action on the loans which is reserved for the servicer. **
    As noted, the trustee does not play a role in initiating or managing a foreclosure process and consequently has little, if any, information relating to mortgage loan activities including a foreclosure.
    Depending on the particular trust and pool, the trustee may have very limited information on either the borrower or the property.
    The servicer, who is selected by the Sponsor of the trust, may have to foreclose on a property if a borrower (mortgagee) does not make payments as required by the mortgage documents. Any action taken by the servicer must maximize the return on the investment made by the “beneficial owners of the trust” — the investors. ”

    **and yet they are signing and submitting POA’s to authorized others to do just that??

    https://www.usbank.com/pdf/community/Role-of-Trustee-Sept2013.pdf

  14. Laughing out loud.
    It’s only life.

    Trespass Unwanted, Creator, Corporeal

  15. Actually – it doesn’t matter

  16. Deb…. Bob has UKGs name right.

  17. Been on here too long I agree – if I get any kind of satisfaction of any kind on here
    It is destroyed. Thank you, even you Bob thank you

  18. UKG. .. You had access to the winning cases….you choose to go another direction and it appears its a rabbit hole. Pointing fingers at us for trying to help people is low….even for you.

    The Hyenas should be Happy I spent part of the last day of my vacation trying to get them out of a rabbit hole.

    Bob and TU are people being ignored ….
    They to shall win!

    But I get attacked because I already won?
    I am not being snobby….I am trying to share what works!

  19. See…
    And what a hypocrit you are UKG
    I was testing BOB he doesn’t use his real name
    These con men are so good and they have not won anything they are full of it and if they weren’t they would not handle themselves the way they do and BE On HERE

  20. Not you, Louise. Not you JG. And not you, Greg, And CERTAINLY not you, Dwight. Deb, you’re on the bubble.
    What a bunch of peasants.

  21. Some people must be really lonely to spend all their time here spewing garbage.
    It’s no wonder nobody comes here except idiots. You can’t have an adult conversation with 5 year-olds.
    Where’s BOB? Oh, he’s tired of talking to idiots so he left.
    I’m with him.

  22. Hey Shadowcat … you don’t even know how to spell college ?

    You lie about having a high IQ.. and you can’t spell college?

    You’re a bigger fraud than a Wells Fargo foreclosure complaint !

  23. Type A make Good Teachers….
    The Masters of Redirection.

  24. JG… Many will not qualify without good title, subject to securitization claims.

    Lender Processing Services aka LPS aka BlackKnight

    I was a plausible deniability vendor….
    I will applause them right in the Ole Smoocher.

  25. My opinion on topics in posts is:

    I happen to like having the juicy tidbits in these posts, it has always worked that something shared is just what someone else needs to know, even if it’s not specific to the topic.

    I know some people are type A personalities and need to control the dialogue, but a lot of us have gotten used to sharing as we find, and the latest post is the best place to put it.

    We have a symbiotic relationship that works and we discover, together.

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

  26. Very Good JG!!!!

  27. Greg… I did not want to misinform you, I had not taken an IQ test since my collage years. So I just took one…. I came in at 155.
    I still have it! Not bad for someone my age.
    FYI. ..I posted the proof on my Facebook page.

  28. for more info on POA’s (and agents) google
    your state revised statutes power of attorney

    or your state revised statutes agency (make sure to see agency in regard to REAL property)

  29. from Florida:

    “709.2105 Qualifications of agent; execution of power of attorney.—
    (1) The agent must be a natural person who is 18 years of age or older or a financial institution that has trust powers, has a place of business in this state, and is authorized to conduct trust business in this state.
    (2) A power of attorney must be signed by the principal and by two subscribing witnesses and be acknowledged by the principal before a notary public or as otherwise provided in s. 695.03.
    (3) If the principal is physically unable to sign the power of attorney, the notary public before whom the principal’s oath or acknowledgment is made may sign the principal’s name on the power of attorney pursuant to s. 117.05(14).
    History.—s. 7, ch. 2011-210; s. 3, ch. 2013-90.”

    Banksters imo have been highly successful in getting laws changed in their favor. However, since these changes are likely not retroactive, the ones in force at the time of an act should control (so have to find the older versions).

    http://www.leg.state.fl.us/STATUTES/index.cfm?App_mode=Display_Statute&URL=0700-0799/0709/0709.html

  30. i am not a lawyer – i am a man who works hard to learn all law – hence law-man… lol

  31. Look Louise….I don’t fault you for lacking the time to fix my typing and spelling errors.

    Don’t take it personally but until you show me a win….I will just keep scrolling past your follow the pac after they attack behavior.

  32. I have both Greg….and I plan to keep them.
    I do not need a lawyer …. Unless someone gets greedy ….
    In that case they eat my legal fees.

    PS…. Smart People contact attornies in the jurisdiction their property is located…. They know state laws vary.

    We see right through you….
    Why are you ssoliciting business here?
    Business Slow?

  33. D, as I have stated before, I just delete Shadowcat’s posts as she is a time waster. .She has been removed from this blog at least twice before. That should tell you all you need to know.

  34. only for folks with better than either a) 140 IQ or b)100k in gold or silver… find greg at lawman@gmx.us

  35. JG…. If I were signing in my individual capacity how would I sign?
    Compared to a Trustee POA Attorney I Fact……corporate capacity?

  36. Greg… He has one.
    Pay your dues and Best of Luck!

  37. Can we ask Neil for a place to bring up our own topics? this topic is not the place for such juicy contributions…

  38. Oh Boy…..

    Everyone KC trusts has that info…..
    To many people playing the blame game with a trigger finger.
    Better Safe than Sorry. ..and besides its public record…right Neil?

  39. Yes … Close JG.

    Lawfirm
    Lawfirm
    Lawfirm

    Buttttt…as JG mentioned.
    Unless…..?????
    What did Neil say?

  40. Shadowcat would have posted her case here if she had ever won a case, she’s here 7 days a week posting her drivel against TILA laws that favor homeowners … She can prove she’s not a liar by posting her case, let’s see how she attempts to spin and dance her way out of this .. Why would she be ridiculing Neil Garfield over his rescission posts, if she has been victorious in asserting rescission? Gotcha … LOL

  41. An agent must (although as to real property, it takes a POA to assign any interest):

    “5) disclose your identity as an agent whenever you act for the principal by writing or printing the principal’s name* and signing your own name as “agent” in either of the following manner:

    “(Principal’s Name) by (Your Signature)” as agent (for real property, would be as attorney in fact for identified party)

    “or (your signature) as Agent for (Principal’s Name)”

    *an identified party, not some garbage like “Washington Mutual, its successors and assigns” in the header of the document

    This isn’t the most complete info but it’s better than a sharp stick in the eye. Google “real property and power of attorney” for more info.

    http://www.nyc.gov/html/dhs/downloads/pdf/poa_ny_short_form1_%20082010.pdf

  42. Who pays the notary….
    Who hired the notary….
    Who the notary works for…..

    I Love Questions!

  43. Oh…and how the notary works for?

  44. I thought sure you would ask questions?

    Questions like who legal letterhead ?
    Who prepared the instrument?
    What lien instrument ?

  45. So in 2012 … With lien release in hand and notice that the release named no name…no ledgable signature..no capacity…..no trust…no bank…no service…no mers. …no party in chain of title.

  46. SC – Thats why i have not been issued one despite requesting one

  47. Well greg they put a pool in my back yard and its not well done

  48. LOL Greg! I Live I Love I Laugh & I Learn.

    I Warn …. Behave
    Some just keep up the bullying until some one puts them back in their place. Its a tough job….but somebody has to do it.

    Deb….Imagine that problem….Very Good!!!!!

  49. If you have had your home violated by a mortgage company or their contractors before foreclosure…

    2004 – MISSOURI COUPLE WINS 6 MILLION DOLLAR PUNITIVE DAMAGES FROM ARBITRATOR (SELECTED BY MORTGAGE COMPANY) AGAINST THAT MORTGAGE COMPANY WHICH CONTRACTED A SERVICE AGENT TO UNLAWFULLY BREAK INTO THEIR HOUSE BEFORE A FORECLOSURE JUDGMENT AND WINTERIZE IT! – US FEDERAL APPEALS COURT – CERTIORARI DENIED BY SCOTUS – THE WIN STANDS!

    openjurist.org/544/us/1027/emc-mortgage-corp-v-stark-et-ux

    openjurist.org/381/f3d/793

  50. Off to the left…. Who holds the position to release you from the debt as in 1099c it is important in regards to how they might be in such position and how the foreclosure went down

  51. is it Shadowcat?…
    [since it looked like you signed your last posting “Knucklehead”]
    (oh please tell me you have a sense of humor)

    i didn’t say poop about you

    i just said to Dwight if he has an issue to take it up with Neil – not us…

    i don’t care – i don’t engage in blog-battery

    got it? good!

    i promise not to engage you directly if you do the same… and even if you do i’ll probably ignore…

    thanks
    GROG

  52. Greg….I caution you to read before you stick your foot in your mouth.

    After 7 years … Neil and Susan know….I do not bite 1st….
    I BITE LAST!

    A lesson our other green thumb newbie insists on learning the hard way.

    Knucklehead!!!!

  53. Dwight… I am the only person here who has completed a successful rescission. I know what it takes. Your bullshit…I didn’t get RTCs does not cut hot butter.

    Your lack of conversation about your trustee duties tells it all.

    Blame Me..Blame the Judges…it gets you no where!

  54. Some people never learn … Others learn the hard way.

    Its about what he does not talk about…and he knows it.

    Scratch!!!

  55. Dwight – then petition Neil or Susan to moderate and do as they will – since this blog is their property – not ours…

  56. Scuba suit aka corporate suit
    Its like beating yourself up.

  57. Greg & Louise .. Any post exposing shadowcat’s misleading comments is “on-topic” and beneficial to the discussion. She has spent every day here on this board, ever since the Jesinoski TILA rescission ruling , attempting to discourage homeowner victims from asserting their rights. She is very bitter over Justice Scalia’s slap-down of the banks.
    It is our duty to expose her lies in order to prevent her from confusing other new members who might come here and read her garbage. This is Neil Garfields web blog ..and since she and her cohorts spend their time here trying to undermine his posts, it is imperative that we all see them for who they are …they have fought NG’s posts every step of the way, they have been proven wrong on every instance .. the 3 other trolls left with Shadowcat after Jesinoski …but she has returned to do harm by steering every discussion off-topic with her never-ending attacks on TILA Rescission rights of the homeowners …her agenda is clear, to cause confusion and chaos to any other discussion that is not her own personally held belief ..just like Rock, Bob and Christine did while they were here. When Shadowcat posts lies, we must expose her lies. This is for the good of everyone that we police this board ..our homes are at stake and Shadowcat is only here to play games and cause chaos.

  58. Greg….perhaps the common law claims being made…are the wrong common law claims to be made?

  59. the difference in this application of law is that the “i; a man;” Karl Lentz common law approach loses and the “inside the box” statutory method wins… – you still have to know who you are, just that you are using your “scuba suit” (person) as your hammer – yet the judges are trying to enforce common law (for once) rescission principals where they are irrelevant!

  60. @Louise agree banks did predatory lending on EVERYBODY but somehow these brilliant judges, ivy league lawyers were using 60’s arguments, bologna!

  61. This isn’t about personal attacks but there is definitely some type of denial on other social media as well. Some may be based on justified anger but you have to wonder about others as banks try to buy off Congress to change TILA before people snap out of it and take action.

    The idea that it’s taken 7-10 years to get it is a joke though I agree w substance of post. I will bet anyone $1000 (fake money like banks lol) that Miami will find a way to lose OR be bought off like LA w Chase last week.

  62. Greg, You read my mind. Krap and personal attacks do not help anyone.

  63. Could we please stick to the topics and facts and research so we can keep our homes and knock of the personal attacks? – thank you.

  64. Call us about potential actions in progress attacking by underlying constitutional challenges various state foreclosure proceedings and how your matter may qualify.
    Consumer Rights Defenders
    818.453.3585
    Ask for Sara, Emily or Steve

  65. Really ?

    Hahahahahahaha!

    Bitter is using our retirement funds to keep it ..never mind!

    Useing them paying your taxes because you didn’t… aha

    You are the bitter one!
    You didn’t follow directions…

    You are the bitter one!
    Because when you hired competent council…..you made the mistake many others made…..you tried to tell them how to do their job.
    You should have played the SOL card….not rescission like advised.

    But I suspect either way…your family looses because you did not follow rules 1 and 2. You all failed your land trustee duties.

    That’s got to leave a Bitter taste in everyone’s mouth.

    Can’t save them all.

  66. Shadowcat must lay awake at night screaming obscenities about how the Supreme Court could make it all so simple, after she had already spent all of her life’s savings on a lawyer who used her like a cash cow

    I guess after Shadowcat was used as a cash cow by her lawyer ..she invites others to join her in the misery ..because misery loves company

    When she sees others who have a brain an can act Pro se , she taunts them and roots for the banks … LMAO

    She acts like a jilted little pimple-faced schoolgirl ..taunting NG because he wouldn’t sit next to her on the playground .. SC is the board idiot.

  67. LOL… Poor pathetic Shadowcat, so bitter and jealous about others using TILA Rescission laws to their favor, that she sits here 24/7 in a jealous rage of delusional denial ..now resorting to quoting the losing sides attorneys in the Jesinoski ruling by the 9 unanimous Supreme Court Justices .. hahaha. Priceless

  68. Its like trying to untie a knot that does not exist.

    NO TRUSTs

  69. Some of those investment banks masquerading as servicers are dust in the wind… Right after they settled with investors for pennies on the dollar. There is a special place in hell for them.

    Scratched!

    Stop blaming the Judges for our ignorance.
    And Neil…. Don’t you think its time to close the rescission chapter?
    Laughs & Snorts
    Even in J vs CW…. CW lawyer responded. …
    After receiving the rescission … There is nothing for us to do.

    Now….Why is that Neil?

  70. Because they didnt WANT to see

  71. The Banksters were 40% of GDP…… The alternative?

    They use our deposits to make the advances to ourselves….did you hear that? Always said…we were paying the right party…aha

    Now about that different payment amount made to the creditor…hmmmm

    Escrow? Or lack of?
    Advances claimed…but fraudently.
    I have the receipts.

    Bad Trustee!!!

  72. It is still amazing to me that it took this long for some judge(s) to see the Ponzi scheme in all its glory. Minority borrowers are not the only people targeted in this scheme. It apparently is still going on and just as bad as it was in 2008. I also see that the Department of Justice is starting (where have they been?) to look at the Wall Street criminals and criminal operations. I would like to see some indictments this month. Waiting…..

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