Ex-FDIC Auditor Files Brief

Eric Mains, former FDIC Auditor who quit to defend his home and go after the banks for the “culpable” actions has filed a brief worth reading. Anyone following this blog should read it carefully.

The banks use the Rooker Feldman doctrine, res judicata, collateral estoppel and a variety of other devices to convince judges that any action for damages or other relief is barred if a judgment has been entered against the borrower. It is a cloud of legal fantasy that often obscures the vision of the court.

Among the points that are well made is that if the relief sought by the homeowner would not set aside or disturb the judgment that was entered, and the homeowner is complaining of external culpable actions that led the to the entry of the judgment, then the homeowner has in fact raised issues that can be heard in Federal or State Court or in Bankruptcy Court. It is simple logic based upon long-standing law.

see RESPONSE Brief Chase and Citi-Highlighted

29 Responses

  1. Plaintiff
    KC as one half of the estate….

    The Plaintiffs Note..

  2. DWIT- YOU NEED TO ALSO FILE THE AMICUS BRIEFS FROM THE SUPREME COURT ON ISSUE , ESPECIALLY FROM THE AGENCY THAT IS IN CHARGE OF TILA LAWS, AND THE ENFORCEMENT OF TILA LAWS. CFBP. IS THE AGENCY. THAT THE LAWS TALK ABOUT. WHEN YOU HERE AGENCY,

    AND THAT THE COURT DID NOT FOLLOW THE STATUE, AS PER AGENCY AND CONGRESS. AND THAT JUDGES CANT CHANGE LAWS FROM BENCH.

  3. @ EVERYONE

    Generally, there is no disagreement that an ADHESION CONTRACT prepared by the purported “lender” exists (“CONTRACT”), and therein is a clause that exists about, paraphrasing, “a sale of all… or a part…of the CONTRACT.

    However, the first issue is that the party purporting to be the “lender” was nothing more than a BAILEE of the MAKER’S NOTE. In effect, and as a matter of law, the BAILEE was a…BROKER of the CONTRACT.

    In Kalifornia, a BROKER has a fiduciary duty to the principal, i.e., the MAKER and OWNER of the NOTE.

    Just sayin…

  4. CORRECTION:

    The purported “lender” is the bailee, not the bailor.

    The BAILOR of his/her personal property is the MAKER of the NOTE.

    The personal property bailed in the Transaction is the NOTE.

    As a matter of law, the BAILOR/MAKER of the NOTE is the OWNER who is entitled to possession upon performance, and never loses the right to either regain possession of the personal property, the benefit(s) of the use thereof, or the equivalent value if the personal property has been lost, destroyed, stolen, etc.

  5. @ lms53

    Respectfully, the assertion that “its not over until the mortgage is paid and recorded satisfaction” is short of the goal line for a touchdown.

    In this crazy fact pattern of pooling a Promissory Note (“NOTE”) for the frenzy of profits in “securitization,” it was never disclosed at closing/execution to the MAKER of the NOTE that the party purporting to be the “lender” in the documentation was in fact a bailor of the PERSONAL PROPERTY of the MAKER in the securitization scheme.

    Following Greg’s direction (as the putative moderator), until the MAKER receives possession of the executed NOTE, as opposed to a “recorded satisfaction” by “someone,” the proverbial “fat lady” is still on stage…waiting.

  6. My TILA rescission letter was mailed on July 1, 2007.

    I stopped making payments on that date as per TILA.

    The Servicer Wells Fargo filed FC on Sept. 25, 2007 .. alleging that we defaulted by not paying the July 1, 2007 payment and thereafter.

    I did not file a lawsuit to enforce. All lawyers told me that I could not rescind unless I had the tender to offer first…Back in 2007 this was the error and misinterpretation…but now Jesinoski addressed it.

    Wells Fargo dismissed the 2007 foreclosure in 2011.

    They filed a new complaint in 2014 alleging the same default date of July 1, 2007 …

    This time in my Answer I was very specific saying I had rescinded on July 1, 2007 under the TILA 3 year extended right for disclosure violations regarding the missing right to cancel notices.

    8 months later in Jan 2015 Jesinoski was released

    I motioned for reconsideration citing Jesinoski as validating the effectiveness of my 2007 letter of rescission mailed

    Judge denied my motion, saying the TILA rescission letter made no mention in it that I was offering tender.

    He also made a false statement in the decision falsely stating that we had never identified what disclosures we were talking about. Thats a lie and the record reflects that we identified the missing disclosures.

    The judge also claimed that it was now beyond the 3 years ..but he was in error because I was not saying that I am rescinding now, but that I already rescinded back in 2007 and they ignored it. I was within the allowed 3 years when I rescinded. Now it is 8 years later due to the Plaintiff ignoring my rescission and attempting its second foreclosure.

    The Judge quoted from Jesinoski saying “but a borrowers right to rescind doesn’t go on forever, The right has a limit of 3 years”

    The judge was attempting to twist that to mean you can’t bring it up later, but we all know we can, as long as it was rescinded and mailed within the 3 years. Meaning 8 years later you can still assert that you had already rescinded …just because the bank ignores it does not mean it didn’t happen.

    My judge ruled in 2015 that my 2007 rescission was not effective because I did not. 1)offer tender. 2) identify the missing disclosure 3)was asserting this 8 years after the rescission, he thinks it can only be raised in the 3 years.

  7. I have used this rule it may not be appropriate for you Dwight but it’s worth a read obviously not legal advice because I’m not an attorney I’m posting the whole thing because I love it in my lay opinion it’s a wonderful rule as is its purpose.

    Rule 60. Relief from a Judgment or Order
    (a) Corrections Based on Clerical Mistakes; Oversights and Omissions. The court may correct a clerical mistake or a mistake arising from oversight or omission whenever one is found in a judgment, order, or other part of the record. The court may do so on motion or on its own, with or without notice. But after an appeal has been docketed in the appellate court and while it is pending, such a mistake may be corrected only with the appellate court’s leave.
    (b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:
    (1) mistake, inadvertence, surprise, or excusable neglect;
    (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
    (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
    (4) the judgment is void;
    (5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or
    (6) any other reason that justifies relief.
    (c) Timing and Effect of the Motion.
    (1) Timing. A motion under Rule 60(b) must be made within a reasonable time—and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding.
    (2) Effect on Finality. The motion does not affect the judgment’s finality or
    suspend its operation.
    (d) Other Powers to Grant Relief. This rule does not limit a court’s power to:
    (1) entertain an independent action to relieve a party from a judgment, order, or proceeding;
    (2) grant relief under 28 U.S.C. §1655 to a defendant who was not personally notified of the action; or
    23a

    (3) set aside a judgment for fraud on the court.
    (e) Bills and Writs Abolished. The following are abolished: bills of review, bills in the nature of bills of review, and writs of coram nobis, coram vobis, and audita querela.
    Notes
    (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct. 20, 1949; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 2007, eff. Dec. 1, 2007.)
    Notes of Advisory Committee on Rules—1937
    Note to Subdivision (a). See [former] Equity Rule 72 (Correction of Clerical Mistakes in Orders and Decrees); Mich. Court Rules Ann. (Searl, 1933) Rule 48,
    §3; 2 Wash. Rev. Stat. Ann. (Remington, 1932) §464(3); Wyo. Rev. Stat. Ann. (Courtright, 1931) §89–2301(3). For an example of a very liberal provision for the correction of clerical errors and for amendment after judgment, see Va. Code Ann. (Michie, 1936) §§6329, 6333.
    Note to Subdivision (b). Application to the court under this subdivision does not extend the time for taking an appeal, as distinguished from the motion for new trial. This section is based upon Calif. Code Civ. Proc. (Deering, 1937) §473. See also N.Y.C.P.A. (1937) §108; 2 Minn. Stat. (Mason, 1927) §9283.
    For the independent action to relieve against mistake, etc., see Dobie, Federal Procedure, pages 760–765, compare 639; and Simkins, Federal Practice, ch. CXXI (pp. 820–830) and ch. CXXII (pp. 831–834), compare §214.
    Notes of Advisory Committee on Rules—1946 Amendment
    Subdivision (a). The amendment incorporates the view expressed in Perlman v. 322 West Seventy-Second Street Co., Inc. (C.C.A.2d, 1942) 127 F.(2d) 716; 3 Moore’s Federal Practice (1938) 3276, and further permits correction after docketing, with leave of the appellate court. Some courts have thought that upon the taking of an appeal the district court lost its power to act. See Schram v. Safety Investment Co. (E.D. Mich. 1942) 45 F. Supp. 636; also Miller v. United States (C.C.A.7th, 1940) 114 F.(2d) 267.
    Subdivision (b). When promulgated, the rules contained a number of provisions, including those found in Rule 60(b), describing the practice by a motion to obtain relief from judgments, and these rules, coupled with the reservation in Rule 60(b) of the right to entertain a new action to relieve a party from a judgment, were generally supposed to cover the field. Since the rules have
    24a

    been in force, decisions have been rendered that the use of bills of review, coram nobis, or audita querela, to obtain relief from final judgments is still proper, and that various remedies of this kind still exist although they are not mentioned in the rules and the practice is not prescribed in the rules. It is obvious that the rules should be complete in this respect and define the practice with respect to any existing rights or remedies to obtain relief from final judgments. For extended discussion of the old common law writs and equitable remedies, the interpretation of Rule 60, and proposals for change, see Moore and Rogers, Federal Relief from Civil Judgments (1946) 55 Yale L.J. 623. See also 3 Moore’s Federal Practice (1938) 3254 et seq.; Commentary, Effect of Rule 60b on Other Methods of Relief From Judgment(1941) 4 Fed. Rules Serv. 942, 945; Wallace v. United States (C.C.A.2d, 1944) 142 F.(2d) 240, cert. den. (1944) 323 U.S. 712.
    The reconstruction of Rule 60(b) has for one of its purposes a clarification of this situation. Two types of procedure to obtain relief from judgments are specified in the rules as it is proposed to amend them. One procedure is by motion in the court and in the action in which the judgment was rendered. The other procedure is by a new or independent action to obtain relief from a judgment, which action may or may not be begun in the court which rendered the judgment. Various rules, such as the one dealing with a motion for new trial and for amendment of judgments, Rule 59, one for amended findings, Rule 52, and one for judgment notwithstanding the verdict, Rule 50(b), and including the provisions of Rule 60(b) as amended, prescribe the various types of cases in which the practice by motion is permitted. In each case there is a limit upon the time within which resort to a motion is permitted, and this time limit may not be enlarged under Rule 6(b). If 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. Where the independent action is resorted to, the limitations of time are those of laches or statutes of limitations. The Committee has endeavored to ascertain all the remedies and types of relief heretofore available by coram nobis, coram vobis, audita querela, bill of review, or bill in the nature of a bill of review. See Moore and Rogers, Federal Relief from Civil Judgments (1946) 55 Yale L.J. 623, 659–682. It endeavored then to amend the rules to permit, either by motion or by independent action, the granting of various kinds of relief from judgments which were permitted in the federal courts prior to the adoption of these rules, and the amendment concludes with a provision abolishing the use of bills of review and the other common law writs referred to, and requiring the practice to be by motion or by independent action.
    25a

    To illustrate the operation of the amendment, it will be noted that under Rule 59(b) as it now stands, without amendment, a motion for new trial on the ground of newly discovered evidence is permitted within ten days after the entry of the judgment, or after that time upon leave of the court. It is proposed to amend Rule 59(b) by providing that under that rule a motion for new trial shall be served not later than ten days after the entry of the judgment, whatever the ground be for the motion, whether error by the court or newly discovered evidence. On the other hand, one of the purposes of the bill of review in equity was to afford relief on the ground of newly discovered evidence long after the entry of the judgment. Therefore, to permit relief by a motion similar to that heretofore obtained on bill of review, Rule 60(b) as amended permits an application for relief to be made by motion, on the ground of newly discovered evidence, within one year after judgment. Such a motion under Rule 60(b) does not affect the finality of the judgment, but a motion under Rule 59, made within 10 days, does affect finality and the running of the time for appeal.
    If these various amendments, including principally those to Rule 60(b), accomplish the purpose for which they are intended, the federal rules will deal with the practice in every sort of case in which relief from final judgments is asked, and prescribe the practice. With reference to the question whether, as the rules now exist, relief by coram nobis, bills of review, and so forth, is permissible, the generally accepted view is that the remedies are still available, although the precise relief obtained in a particular case by use of these ancillary remedies is shrouded in ancient lore and mystery. See Wallace v. United States (C.C.A.2d, 1944) 142 F.(2d) 240, cert. den. (1944) 323 U.S. 712; Fraser v. Doing (App. D.C. 1942) 130 F.(2d) 617; Jones v. Watts (C.C.A.5th, 1944) 142 F.(2d) 575; Preveden v. Hahn (S.D.N.Y. 1941) 36 F. Supp. 952; Cavallo v. Agwilines, Inc. (S.D.N.Y. 1942) 6 Fed. Rules Serv. 60b.31, Case 2, 2 F.R.D. 526; McGinn v. United States (D. Mass. 1942) 6 Fed. Rules Serv. 60b.51, Case 3, 2 F.R.D. 562; City of Shattuck, Oklahoma ex rel. Versluis v. Oliver (W.D. Okla. 1945) 8 Fed. Rules Serv. 60b.31, Case 3; Moore and Rogers, Federal Relief from Civil Judgments (1946) 55 Yale L.J. 623, 631–653; 3 Moore’s Federal Practice (1938) 3254 et seq.; Commentary, Effect of Rule 60b on Other Methods of Relief From Judgment, op. cit. supra. Cf. Norris v. Camp (C.C.A.10th, 1944) 144 F.(2d) 1; Reed v. South Atlantic Steamship Co. of Delaware (D.Del. 1942) 6 Fed. Rules Serv. 60b.31, Case 1; Laughlin v. Berens (D.D.C. 1945) 8 Fed. Rules Serv. 60b.51, Case 1, 73 W.L.R. 209.
    The transposition of the words “the court” and the addition of the word “and” at the beginning of the first sentence are merely verbal changes. The addition of
    26a

    the qualifying word “final” emphasizes the character of the judgments, orders or proceedings from which Rule 60(b) affords relief; and hence interlocutory judgments are not brought within the restrictions of the rule, but rather they are left subject to the complete power of the court rendering them to afford such relief from them as justice requires.
    The qualifying pronoun “his” has been eliminated on the basis that it is too restrictive, and that the subdivision should include the mistake or neglect of others which may be just as material and call just as much for supervisory jurisdiction as where the judgment is taken against the party through his mistake, inadvertence, etc.
    Fraud, whether intrinsic or extrinsic, misrepresentation, or other misconduct of an adverse party are express grounds for relief by motion under amended subdivision (b). There is no sound reason for their exclusion. The incorporation of fraud and the like within the scope of the rule also removes confusion as to the proper procedure. It has been held that relief from a judgment obtained by extrinsic fraud could be secured by motion within a “reasonable time,” which might be after the time stated in the rule had run. Fiske v. Buder (C.C.A.8th, 1942) 125 F.(2d) 841; see also inferentially Bucy v. Nevada Construction Co. (C.C.A.9th, 1942) 125 F.(2d) 213. On the other hand, it has been suggested that in view of the fact that fraud was omitted from original Rule 60(b) as a ground for relief, an independent action was the only proper remedy. Commentary, Effect of Rule 60b on Other Methods of Relief From Judgment (1941) 4 Fed. Rules Serv. 942, 945. The amendment settles this problem by making fraud an express ground for relief by motion; and under the saving clause, fraud may be urged as a basis for relief by independent action insofar as established doctrine permits. See Moore and Rogers, Federal Relief from Civil Judgments (1946) 55 Yale L.J. 623, 653–659; 3 Moore’s Federal Practice (1938) 3267 et seq. And the rule expressly does not limit the power of the court, when fraud has been perpetrated upon it, to give relief under the saving clause. As an illustration of this situation, see Hazel-Atlas Glass Co. v. Hartford Empire Co. (1944) 322 U.S. 238.
    The time limit for relief by motion in the court and in the action in which the judgment was rendered has been enlarged from six months to one year.
    It should be noted that Rule 60(b) does not assume to define the substantive law as to the grounds for vacating judgments, but merely prescribes the practice in proceedings to obtain relief.

    27a

    It should also be noted that under §200(4) of the Soldiers’ and Sailors’ Civil Relief Act of 1940 (50 U.S.C. [App.] §501 et seq. [§520(4)]), a judgment rendered in any action or proceeding governed by the section may be vacated under certain specified circumstances upon proper application to the court.
    Notes of Advisory Committee on Rules—1948 Amendment
    The amendment substitutes the present statutory reference.
    Notes of Advisory Committee on Rules—1987 Amendment
    The amendment is technical. No substantive change is intended.
    Committee Notes on Rules—2007 Amendment
    The language of Rule 60 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only.
    The final sentence of former Rule 60(b) said that the procedure for obtaining any relief from a judgment was by motion as prescribed in the Civil Rules or by an independent action. That provision is deleted as unnecessary. Relief continues to be available only as provided in the Civil Rules or by independent action.

  8. Was it within 1 year ?

  9. Dwight when was the decision
    Denying you your tila rescission

  10. DwightNJ, it would seem that Justice Antonin Scalia J.D. would wholeheartedly agree with your premise there. However, and to your demise, Justiceless Bob Hurt, D. A (guess what that stands for) has overruled. Remember, in the eyes of his court, you’re simply a lowlife borrower who purposely breached your note due to a neglect in character or bad genes. Too bad that.

  11. Can this theory be applied to my case? The fact that my rescission had already taken place in 2007, prior to the Plaintiffs 2014 foreclosure case being filed which is in front of the court now. The court granted the Summary Judgment in favor of my Servicer Wells Fargo, the attorney for WF now opposes any right for me to argue the TILA rescission saying that this court has already deemed it was ineffective due to not tendering first in my rescission letter and the court also made a false statement in its decision that we had never identified what disclosure was missing that gave us the right to rescind under TILA 3 year to do so. Well the record reflects that this is not true, the transcripts show that we did explain and identify the missing disclosures as the two right to cancel notices for each borrower. The letter mailed in 2007 also did identify the missing disclosures which allowed the 3 year extended window to rescind under TILA.

    The point of this is that a seperate operation of law had already taken place before the instant complaint of foreclosure in 2014.

    This court erred in allowing the non-creditor to oppose it in a Summary judgment. TILA requires that the true creditor take steps in the 20 days of the procedure …and to determine and prove a payoff number that would be required for mutual tender in order for the process to be used correctly …allowing the release of the security instrument so the borrower might sell or refinance to be able to tender.

    The non-compliance of the 20 day process injured the borrower due to his ability to take advantage of his property’s large equity in 2007. The value was over 300,000 in 2007 …and is now 8 years later only worth around 230 – 260,000 …. The injury of a foreclosure further harms the borrower due to the Plaintiffs non-compliance of TILA.

    The Plaintiff is not the creditor, which opens up other problems to this case.

    The summary judgment is now granted against a mortgage and note which were cancelled before the foreclosure complaint was filed.

    So the question for the Appeals court is, does the borrower have a legal right to continue to argue his TILA rescission, even after the lower court granted the foreclosure which happened after the rescission?

    The FC was based on a holder establishing standing using a void mortgage and note.

    The lower court says they already adjudicated the rescission and they deny it was effective due to tender not being made by borrower.

    Is the borrower barred due to Res Judicata?

    I say NO

  12. Sorry there i went off on tangent
    The case is very useful imho

  13. The appraised value we all reiled upon including secondary market participants but you know the rest about the rating agencies
    The default swaos were sure thing because so was the foreclosure

  14. Greg the stand up comedian show stay tuned every Thursday around

  15. Greg the comedian Neil is a big boy and can take care of himself at least the consumer…… Don’t talk shit about Neil like the rest of you comedians. The head comedian bob hurt

    NEVER AGAIN

  16. louise

    please email me with your contact info to share – as the others are looking forward to off-line conversation with you – as we discussed and agreed yesterday

    thanks
    greg
    lawman@gmx.us

  17. i always wonder why the pay-per-view service providers have to jump in the middle with their commercials in the midst of folks discussing their issues and offering their personal stories for free?

    maybe we should charge consumerrightsdefenders, and others seeking to secure a payment $50 per person / per posting?

    after all… i don’t think Neil established and owns this blog for others to come in and steal his customers… did he? – at least not without an agreed upon commission….

    tired and sore on a friday note
    greg

  18. What Washington needs is a horse’s rear end like me to file suit in federal court citing a key part of the 1st clause of Article I, Section 10 of the U.S. Constitution; “No State shall . . . pass any . . . law impairing the obligation of contracts.” The (promissory) Note is a contract & if you don’t have a written / signed contract you can’t enforce any provision of it. There’s a LOT of case law on that point & I’m quite sure the Washington State law would be overturned — might have to go all the way to the U.S. supreme Court (as other contract cases have), but that law can’t stand against the U.S. Constitution.

  19. True L
    We became part of something that theres no way we would have agreed to, our signature facilitated their fraud(s)

  20. Keep in mind, everybody, there were foreclosures on homes that were PAID FOR. There were also foreclosures on homes where the homeowner PAID CASH FOR THE HOUSE. It is all about the fraudulent documents. Keep in mind, also, that the actual value of the house does not matter, it is all the CDOS & insurance polices that come into effect when the foreclosure happens. I want all the money back from all the times they sold the fraudulent note w/my signature on it.

  21. Well said ims53
    2 most important issues when buying a home
    1. Appraisal
    2. Clear title

  22. like it, lets see how it plays out or will it be another settlement behind closed doors. Enough of these already! Put these crooked banks on notice, we will get them one way or the other and totally expose their fraud. How could anyone that purchases a foreclosure get a good title when the loan supposedly turns bad and the banks have to produce more fraud to foreclose. it seems they would want to work it out to minimize their fraudulent docs. They really are greedy. The title is clouded forever. That’s where the courts step in and push the fraud farther. No end in sight . I would not purchase a foreclosure. Even if you purchase from a seller that did not default and has/had a loan with one of these big investment banks, its not over until the mortgage is paid and recorded satisfaction. you may get a warranty deed at closing but until the sellers satisfaction of mtg. is recorded, how would one know. Investment and commercial banks need to not be intertwined. they have ruined 100s of 1000s of peoples live over their deceitful practices.

  23. Note: you should know of the FRAUD exception to RF doctrine if your going to use it.
    CRD
    818.453.3585.

  24. The legal theories referenced are not fantasy laws but well articulated reasons why you cannot re-litigate issues and cases in a subsequent action.

    If you need further information of wish to purchase a brief on these points, call us at 818.453.3585 ask for Steve.
    Consumer Rights Defenders
    …..helping the pro se litigants [and lawyers too] fight the battles to save homes since 2006.

  25. Excellent pleading as well as including RICO & Fraud. One of these cases has got to be a winner for homeowners.

  26. The Bob Hurt comedy show is next.
    The Christine comedy show is next
    The Greg stand up comedy show was on yesterday

    Never Again
    The free house doctrine equals “Arbeit Macht Frei״

  27. And to be fair – those judgements might not have happened as they did if certain pArties had not misrepresented themselves
    This creates ongoing harm to myself but also the person living in my former home, because that persons investment is nit safe either, he bought the foreclosed property whilst my rights were still in tact and i was in fact still in court asserting my claims.
    Not over until fat lady sings.

  28. Well i challenged the judgements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: