Colorado County Court Judge Gets It

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THE FOLLOWING ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.

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see Ruling on Motion RE Hearing December 4, 2015

Hat Tip Eric Mains

I have already commented on this case but there are issues that are becoming more clear as to jurisdiction and so a review of this case is warranted, where the Judge correctly declined to rule until a court of competent jurisdiction ruled on the issue of ownership. In so doing the court refused to grant the eviction order even though the sale had taken place and a deed was issued.

The Judge realized that as a county court judge he lacked jurisdiction to even hear the issue of whether the foreclosure sale was void. Hence he deferred any action on granting eviction until the issues of ownership were resolved. Why? Because eviction can only be granted to the owner of a the property. In this case there was a rescission in the mix. Hence any action after the rescission was mailed was void if it involved enforcing the alleged loan contract, note or mortgage.

As far as I know, there is no law or judicial doctrine that says that if the statutory or common law prohibits you from doing something, and then you do it anyway, that suddenly it becomes lawful because you did it anyway. Breaking the law would thus be changing the law.

The sub-point here that has reared its head and which virtually nobody is paying any attention is in the bankruptcy courts. People think of BKR judges as Federal Judges. Not so fast. They once were called magistrates and still rule subject to an appeal to the Federal District Judge.

It is doubtful, to say the least, that any bankruptcy action, whether 7, 11 or 13, can be continued where the home is a significant part of the estate if the there is a question of ownership, authority or balance raised by the Petitioner. Trustees, Judges and lawyers on all sides are missing the point here. The current trend of ignoring the defenses of the borrower are probably going to lead to a line of decisions that over-rules that practice. But more than anything, the question is whether the BKR judge has any jurisdiction to do anything other than follow the procedures in TILA Rescission as confirmed by SCOTUS.

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This case raises another huge potential problem for the banks on the TILA front, and on the possession front, in a nutshell: They ignored rescission, went ahead with foreclosure sale anyway. The State court ignores the rescission or the borrower does not raise TILA rescission in State Court, whatever. The property goes to sale, BUT, guess who credit bids? Hint, like usual , it ain’t the party who said they held the loan, oopsy! Homeowner won’t move out of the house, “Creditor” files for an eviction.

Think of situations like this where a Homeowner responds to eviction notice in court, “Your honor, First, I issued a TILA rescission before sale and they failed to respond, Second, they are not the proper owners, just look at the credit bid and see for yourself.”

Court says, “You are correct, we don’t have jurisdiction to hear such a claim”, OR they respond “OK we do have jurisdiction, but you can appeal this decision to a higher court”, either way, this is going to be a long haul for the claimed Plaintiff/owner, because getting the foreclosure in their favor does not equal possession, it may take them years and they may LOSE.

So trying to pretend like the rescission does not exist means you may not get possession. You may in fact be liable for quite a bit of damages, or lose even after winning a foreclosure action because a ruling in favor of TILA rescission in a federal or district court action may mean the foreclosure ruling can be overturned, potentially by quiet title, a rule 60 motion, or otherwise.

This opens a whole other dimension for homeowners, and against the banks. They have a judgment, but they can’t get the house, and are in limbo for a long time with possibly being overturned at a later date. Lesson here for them: Don’t mess with TILA, and don’t try to sneak in a credit bid post ruling that shows you were lying to the judge about ownership of the loan.

21 Responses

  1. i think the main holding company was called MERSCORP

  2. There are or were 3 MERS. The one you want is the corporation.

  3. GREG,

    i just want on the Delaware corp site. to see something. that was bothering me.

    my mortgage in 2005, says, ( MERS ) MEANS , MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. AND IS ORGANIZED AND EXISTING UNDER THE LAWS OF DELAWARE.

    SO AFTER LOOKING IN THE CORP, DIVISION RECORDS. WELL WELL. NOTHING THERE.

    so how could a non-existent corporation be a nominee for anyone,? AND BE ABLE TO ASSIGN ANYTHING TO ANYONE. ?

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  5. Good Afternoon Neil –

    In reading the standing of TILA in the Federal Court in Colorado, I may have a cause of action . I had 135 of prime property in Winter Park, Co, plus the best Water Rights in the Grand County. Property was appraised at approximately two and a half million dollars at the time I owned it. I only owed $250 at that time The rest is a long story. Is it possible to breath life into this once again with TILA.

    Sandy Kuhn

  6. In the misrepresented contract … They use the terms leasee and lessor. WHY?

  7. show me the request by me to change my interest rate, on my mortgage and note.

    (iii) the Mortgage Loan following the proposed assignment will be modified to
    have a rate of interest at least 0.25 percent below or above the rate of
    interest on such Mortgage Loan prior to such proposed assignment; and

    (iv) such assignment is at the request of the borrower under the related
    Mortgage Loan.

  8. .RE: “We are Land Owners.”

    Are you sure about that?
    Could we in fact .. be renters ?

    It would explain why they go after the land.

    BIGGEST LAND GRAB IN HISTORY. WHY?

  9. sent to all legislator in mass, ask why

    article VII. Government is instituted for the common good; for the protection, safety, prosperity and happiness of the people; legislative, executive, or judicial, are their substitutes and agents, and are at all times accountable to them.(the people of the Commonwealth.)The people of this commonwealth have the sole and exclusive right of governing themselves, as a free, sovereign, and independent state; when their protection, safety, prosperity and happiness is being threaten by

    unlawful acts of there , legislative, executive, or judicial party’s. by making laws to protect there interest’s, example, the banking industry-banking lobbyist, National Association of Realtors, these are just a few that is being protected by our legislators.

    we the people , ask , why?

    why are land records offices, are refusing to help the land owners, land owners must get court orders to get something off our land records

    that is not true, or forged, or put on without consent of the land owners. why?

    but everyday they continue to put fraudulent docs on homeowners land records, by electronic , my mail, etc etc. without proper verify

    if the land owners know about this or not, is it real, does the party saying to put on our land records have the authority to have it put

    on our records.

    i am the land owner. not the registry of deeds office, they are there for the protection of the people of the Commonwealth. to ensure

    that our land records are correct. THIS IS NOT HAPPENING. WHY.

    Article IV. The people of this commonwealth have the sole and exclusive right of governing themselves, as a free, sovereign, and independent state; and do, and forever hereafter shall, exercise and enjoy every power, jurisdiction, and right, which is not, or may not hereafter, be by them expressly delegated to the United States of America in Congress assembled.

    Article V. All power residing originally in the people, and being derived from them, the several magistrates and officers of government, vested with authority, whether legislative, executive, or judicial, are their substitutes and agents, and are at all times accountable to them.

    article VII. Government is instituted for the common good; for the protection, safety, prosperity and happiness of the people; and not for the profit, honor, or private interest of any one man, family, or class of men: Therefore the people alone have an incontestable, unalienable, and indefeasible right to institute government; and to reform, alter, or totally change the same, when their protection, safety, prosperity and happiness require it.

    Article X. Each individual of the society has a right to be protected by it in the enjoyment of his life, liberty and property, according to standing laws. He is obliged, consequently, to contribute his share to the expense of this protection; to give his personal service, or an equivalent, when necessary: but no part of the property of any individual can, with justice, be taken from him, or applied to public uses, without his own consent, or that of the representative body of the people. In fine, the people of this commonwealth are not controllable by any other laws than those to which their constitutional representative body have given their consent. And whenever the public exigencies require that the property of any individual should be appropriated to public uses, he shall receive a reasonable compensation therefor.

  10. As far as I know, there is no law or judicial doctrine that says that if the statutory or common law prohibits you from doing something, and then you do it anyway, that suddenly it becomes lawful because you did it anyway. Breaking the law would thus be changing the law.

    It’s happening in Kalifornia. If any debt has been litigated, no matter the outcome, anyone can come along and attempt to collect on it. After such action is taken, the debtor would sue to reclaim stolen funds. At that point the ‘creditor’ files an anti-SLAPP motion stating debtor can’t win because litigation privilege applies, and the SLAPP provisions are essentially a summary judgment weighted heavily in defendant’s favor. SLAPP suits are immediately appealable by defendant / creditor, and the Krazy Kalifornia AlKapone Kourts are all over the map on rendering decisions. At some point it comes down to the whether the absolute right of litigation privilege outweighs any possible damages of the victim of an anti-SLAPP suit, and the ‘debtor’ loses, even if he would prevail at trial.

  11. I’m in total agreement regarding “credit bids” by LINOS at foreclosure “auctions” and “Sheriff’s sales.”

    In Georgia, a non-judicial foreclosure state, this is even more of an issue. I investigated to find out “who’s in charge” at these sales. The answer? Nobody is! There’s not even a requirement that the “winning bids” be recorded by any county government office… including the county Sheriff’s offices who normally “supervise security” at the sales.

    There’s a possibility that there’s a recording made by the county tax office when the sale is of unpaid tax fifas…. and by the Sheriff’s office if the sale of properties confiscated by or impounded by police authorities… but even that information is difficult to find within the local judicial or government system.

    Since there’s no requirement to record these sales, there’s massive opportunities for fraud! Also… for illegal money laundering.

    (I’m presuming all money laundering is illegal.. except for when my wife accidentally washes the $20 bill I leave in my dirty jeans. 😂 But similar to the illegal actions I’ve noted above, I never see that money again.😦

  12. Dandanier- well put. And a very good analogy which you used. The lack of standing of the purported “lender” in a BK court, is just as readily apparent in a “credit bid” at a sheriff’s sale.
    The last time I read the rules on sheriff’s sales, only a creditor may make a credit bid. That’s so easy to understand, maybe we should all focus on that for awhile.

  13. I’m sorry folks…. in my last post, I included copy from a draft… I should have cleaned it up. Please forgive me.

  14. Ian,

    Below is the copy of an email I sent to a bankruptcy Trustee today.

    Unfortunately, standing as a lawful Creditor in a bankruptcy court is *not* required.. the LINOS are abusing the BK process (as I note below)… the BK judges are simply ignoring Debtor requests that they address the “gateway issue” of standing in their courts.

    I’ve read a certified transcript of a judge’s decision to waive off this obvious requirement by flippantly declaring she had “no authority to rule on this issue” (in her court.) She also rejected outright the fact that the debtor provided an affidavit that TILA Rescission Letters were mailed to the LINOs, along with an affidavit of the LINOs’ non-compliance with the TILA requirements. Finally, she stated she didn’t know anything about the SCOTUS Jesinoski decision, despite the Debtor’s specific notification of its import… giving almost certainty she had not even reviewed his objections to her lifting the automatic stay.

    She did what she did in less than seven minutes “because she could.” There’s little a Pro Se Debtor can do when the judge is hell-bent on ignoring the “standing issue. The next day, my friend’s home was foreclosed upon by the LINO. (That’s the reason for the transcript…. My friend has appealed to the District level…and my reason for sending an email to a Trustee in which I have no standing. It may have no effect, but I got my frustrated sense of injustice off my chest.)

    PS: I’m hoping NG’S article today will provide some legal ammunition to contest any threatened eviction proceeding by my friend’s LINO.

    ***************
    Sir,

    One of the “main issues” affecting Bankruptcy courts, is to take notice of proper, lawful standing

    That is, whether or not a party, who has not been required to establish lawful standing in a bankruptcy action, can request a lift of stay of foreclosure, directly from the BK judge, if they make no claim as either a secured or nonsecured Creditor. ..Especially if they “avoided” confronting the Debtor in the 341 hearing!

    For example, if my wife and I become aware of a child custody issue of a neighborhood family that’s before a proper court of jurisdiction, we have no right to an “assumed” right of standing which will allow us to insert ourselves into the judicial process.

    The sitting judge has all authority to declare “Who in the H—- do you think you are? These matters do not concern you! You are not state childcare workers nor social workers! You are not even relatives of the parties involved! Get out of my court! If you show up again, I’ll find you in contempt of this court and deal with you accordingly!

    It would be ridiculous for that judge to declare the court “has no authority” to address the issue of party standing in the proceedings before them.

    Likewise, Mr. L….., if a Debtor requests an evidentiary hearing addressing (not standing regarding a real estate dispute,) *but, instead, * a “presumptive Creditor’s lawful standing to request the court to rule on a BK issue, the judge has *every right* and full authoriy to require that all “Creditors” establish a foundation for being before the court.

    Else, the court has been defrauded. To allow this kind of injustice to continue under the color of law mightily taints the court and it’s judges.

    I speak of this because I’m aware of at least three cases (and suspect there are hundreds) where banks’ attorneys are employing this tactic to “bluff” judges into assuming all parties before them have lawful standing before the court.

    Mr. L…., as a Trustee you have the initial opportunity (and perhaps, the mandated responsibility) to bring these matters before BK judges.

    I’m neither an attorney nor a paralegal but I’ve been a close observer (of my own C7 BK) and many friends in BK who (understandably cannot afford legal counsel, but) are trying to navigate through a BK process as a Pro Se.

    I’m fully aware of a 49-state federal multi-billion dollars settlement between the “Too Big To Fail Banks” regarding major foreclosure related issues. I also know that our Georgia AG and politicians decided to funnel Georgia’s portion of that settlement into Georgia’s “general fund.”

    Those moneys should have been allocated to homeowners affected by the illegal actions of their “creditors.” Specifically to pay for competant foreclosure defense counsel, and alternatively to competant BK Debtor counsel, when those homeowner/debtors have been forced into bankruptcy, often for no reasons or their own (loss often jobs, a national Financial Crisis, medical issues, or the death of a “breadwinner”.)

    Many times, while I’ve waited in line at the BK clerk’s outer desk, I’ve read the mural explaining the historical development of US Bankruptcy law. I was surprised to discover that the BK courts are “Debtor Relief” courts, not courts to aid and facilitate Creditors’ disputes with Debtors.

    Abuses of these courts, like the issue I’ve discussed above sully the honor and calling of the Bankruptcy Courts’ history.

    Respectfully,…. (You know me as Dandiener.)

  15. Shadowcat- you are correct regarding BK court. The bar is higher. The judges generally follow the rules. Less escapes their grasp.
    When a homeowmer lists their debts, the “trick” is to list the mortgage debt as unsecured.
    This way, the pretend lender/ servicer/fclosure mill has to prove that they do indeed have a secured interest in your note. Absent forged, backdated, bogus documents they can’t do that.

  16. i believe there is a argument to be made on this point. please appease me.

    1/ homeowners were not a where that they were closing on a security transaction. as you know well, that these were, security transaction,
    and that they were not, common mortgage loans/contract. they were treated as security contract and we were the issuer of them.

    2/ so how can courts use common foreclosure laws to foreclose on someone. that was involved in a complex security transaction ?

    3/ so again it go to, rescission. so if the homeowner was not aware he was entering into a security transaction at the closing table, and was not
    told about the other party to this security transaction/closing. and a stranger to the transaction supply the funds to transaction, but homeowner
    was never told about this other party. and that this non-party already was given a security interest of the homeowner property , before the homeowner signing , so there was no meeting of minds with all players, and there was consummation / because the party on
    mortgage and note was not the party that funded the consummation. right.

    4/ there is over 4 different copy’s of my note, how many more note are out there, if court’s are saying a copy is find. a note is a check, banks will not except
    a copy of my check and cash it. will they.

    5/ there has to be consideration from a party , that is stating that they gave the consideration. gmac mortgage corporation, DID NOT GIVE ANY CONSIDERATION AT CLOSING TABLE. IN FACT GMAC MORTGAGE CORPORATION, DID NOT FUND 1 PENNY, AT CLOSING TABLE. but there name is the
    one on mortgage and note as if they supply the funds at closing table.

    6/ BUT LETS LOOK AT A MIN, of the assignments that should be done, if all was real and not a fraud.

    assignment number 1/ gmac mortgage corp to Deutsche bank trust company americas.

    assignment number 2/ Deutsche bank trust company americas to gmac mortgage corp

    assignment number 3/ gmac mortgage corp to Residential Asset Mortgage Products, Inc.( not a member of merscorp. ) so mers would not have any authority what so ever any more from that assignment. from me the homeowner or them.

    assignment number 4/ Residential Asset Mortgage Products, Inc./ wells fargo bank,n.a. as trustee for gmacm mortgage loan trust 2006-j1
    assignment number 5 / wells fargo bank n.a. as trustee for gmacm mortgage loan trust 2006-j1 to wells fargo bank n.a. as trustee for certificate holder of gmacm mortgage pass-through certificates, series 2006-j1

    all most be true sales. consideration most be given . by each. to be holder in do course. and have a right to sell to others, or assign to others.

    now , the only assignment recorded at registry of deed in mass, is a assignment in august 2012, 4 months after gmac/rescap went bk, and it is from mers acting for dead company/ gmac mortgage corp went out of business in 2006. to trust.

  17. Even more reason to file your TILA rescission.

  18. My Sources tell me the Bankruptcy Judges Do have Jurisdiction
    My Sources tell me “PROOF OF CLAIM” is required as it is in State Courts.
    My Sources tell me .. Men die everyday day because of stubbornness and pride.

    Blessed Enough …
    He has always protected his family even beyond death.

    Croak

  19. is this Colorado specific or citable for other states?

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