Solving the Puzzle: Settlements with Homeowners Are Rising

Hat tip Michael Bazemore

It’s not easy to see but if you look at the court docket after a ruling against the parties designated as “foreclosing parties” you can see that these cases are often dismissed with reference to an agreement or settlement between the parties.

The typical pleading asking the court to dismiss the case will read as follows:

IT IS HEREBY STIPULATED by and between Plaintiff X and Defendant Y that pursuant to [Federal][State] Rule of Civil Procedure (41(a)(2) [Federal] this action and all causes of action contained therein shall be dismissed with prejudice.

It is further Stipulated by and between Plaintiff and Defendant that each party shall bear their own costs and attorney fees associated with this action.

The parties are submitting a proposed order of dismissal concurrently with this Stipulation.

I took that wording from a case involving a homeowner asserting rights, among other things, that focussed on TILA Rescission. We all know that the consensus is that no court will rule in favor of homeowners. But here you have a settlement that the bank considered too risky to bet on — a case that could have served as precedent for the proposition that there is no note, there is no mortgage and the debt that could have been pursued under 15 USC §1635 (TILA Rescission) is now barred by Statute of Limitations (often stated as “SOT).

I am seeing more of these of late indicating that homeowners who fight aggressively are winning their case and forcing the banks to settle.

PRACTICE NOTE: I think it is error to predicate your thinking about settlement value on the value of the case as it is conventionally determined. The banks are not evaluating cases for settlement based upon what a particular homeowner might gain from a particular verdict. They are evaluating the case based upon potential exposure of the entire fraudulent scheme of foreclosure and the liability associated with false claims of securitization, dubbed “securitization fail” by Adam Levitin.

The threshold question of whether they will settle at all is answered by their evaluation of exposure. The amount of money damages paid is based upon the likely verdict in the case. But it remains to be seen as to whether those with an appetite for risk might bargain based upon the exposure in all cases rather than the risk of a negative verdict in this one particular case.

The index for such valuation could be based upon the amount of gain realized by the investment bank who posed as underwriter and perhaps Master Servicer of a nonexistent trust. Through sales and trading of derivatives based upon the signature of the borrower the investment bank collects as much as 40 times the principal due on the note without any allocation to the benefit of the investors or the borrowers. My opinion is that both investors and borrowers should share in the bounty of $10 million taken in on a $250,000 loan. My opinion has always been that the notion of a default or even a loss should be off the table. The question should not be one of foreclosure but of disgorgement of ill-gotten gains.

Litigating foreclosure defense in this context requires the mindset of a solving a puzzle. Like any word puzzle or video game you need to stare at it for a while. At first you see nothing there. It’s like a painting that upon longer viewing reveals a face. After awhile of looking at the names of parties or their purported roles your mind will kick in and you will see the gaps in their asserted roles.

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Let us help you plan for trial and draft your foreclosure defense strategy, discovery requests and defense narrative: 202-838-6345. Ask for a Consult or check us out on www.lendinglies.com. Order a PDR BASIC to have us review and comment on your notice of TILA Rescission or similar document.
I provide advice and consultation to many people and lawyers so they can spot the key required elements of a scam — in and out of court. If you have a deal you want skimmed for red flags order the Consult and fill out the REGISTRATION FORM.
A few hundred dollars well spent is worth a lifetime of financial ruin.
PLEASE FILL OUT AND SUBMIT OUR FREE REGISTRATION FORM WITHOUT ANY OBLIGATION. OUR PRIVACY POLICY IS THAT WE DON’T USE THE FORM EXCEPT TO SPEAK WITH YOU OR PERFORM WORK FOR YOU. THE INFORMATION ON THE FORMS ARE NOT SOLD NOR LICENSED IN ANY MANNER, SHAPE OR FORM. NO EXCEPTIONS.
Get a Consult and TERA (Title & Encumbrances Analysis and & Report) 202-838-6345 or 954-451-1230. The TERA replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
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SCOTUS Oral Argument Illuminates the Main Question in Foreclosures: What are the roles of the parties?

Two days ago in the case of Obudskey v McCarthy and Holthus LLP the  Supreme Court of the United States (SCOTUS) heard oral argument on issues relating to the application of the Federal Debt Collection Procedures Act (FDCPA).

The argument for including the law firm pursuing foreclosure was presented by DANIEL L. GEYSER, Esq. in a case that started in Texas.

In the course of reading the oral argument and comments by the court it is clear that everyone is struggling with defining the roles of each of the players in foreclosure.  The fact that such a struggle exists is a testament to the credibility of arguments raised by homeowners that claimants are misrepresenting their roles and capacity to pursue foreclosure or at least on dubious ground for claiming any rights in relation to the subject debt. While the SCOTUS ruling could go any number of ways, the fact that they took the case for review combined with the content of the oral argument, shows that the roles of all the parties who line up to pursue foreclosure are obscured.

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Let us help you plan for trial and draft your foreclosure defense strategy, discovery requests and defense narrative: 202-838-6345. Ask for a Consult or check us out on www.lendinglies.com.
I provide advice and consultation to many people and lawyers so they can spot the key required elements of a scam — in and out of court. If you have a deal you want skimmed for red flags order the Consult and fill out the REGISTRATION FORM.
A few hundred dollars well spent is worth a lifetime of financial ruin.
PLEASE FILL OUT AND SUBMIT OUR FREE REGISTRATION FORM WITHOUT ANY OBLIGATION. OUR PRIVACY POLICY IS THAT WE DON’T USE THE FORM EXCEPT TO SPEAK WITH YOU OR PERFORM WORK FOR YOU. THE INFORMATION ON THE FORMS ARE NOT SOLD NOR LICENSED IN ANY MANNER, SHAPE OR FORM. NO EXCEPTIONS.
Get a Consult and TERA (Title & Encumbrances Analysis and & Report) 202-838-6345 or 954-451-1230. The TERA replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
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see scotus oral argument on fdcpa 17-1307_apl1

Hat tip to Charles Cox

Claims under the FDCPA are very interesting because in order to determine of the party that is acting is a debt collector you must first determine if they are a creditor and then determine whether their activities fall within the FDCPA. By alleging they are a debt collector you are implicitly stating that they are not a creditor — i.e. an owner of the debt seeking to collect it.

This opens discovery on the issue of who owns the debt and wether the party demanding payment is representing the owner of the debt . We know they are not representing the owner of the debt (there probably is no “owner of the debt”) and they are not owners of the debt — unless a presumption is made that possession of the original note raises the presumption of transfer of the debt.

That in turn raises the question of whether the note was delivered by someone who owned the debt.

And THAT is at the heart of the game for the banks. They lead foreclosure defense counsel, homeowners and the courts into believing that the existence of the chain of paper is sufficient to raise a virtually irrebuttable presumption that what is written in the chain of paper is true. It is not true. So the entire tsunami of foreclosures was based upon the premise of the banks that it is true because they say it is true.

This is accepted by courts because they automatically accept representations of bank counsel as credible —- and automatically reject assertions of foreclosure defense counsel —- as either not credible or just technical ways to either delay the inevitable (which is a prejudgment) or get out of a legitimate debt (making the frequently erroneous assumption that the debt is legitimate) without regard to whether it is owed to the claimant who is named in the foreclosure proceedings — or whether the claimant has a legal relationship (privity) with the owner of the debt.

FLA S Ct Reverses Course on Homeowner’s Award of Attorney Fees and Raises Other Issues for Defense of Foreclosures

For those of us that have access to the data, we know that homeowners are winning foreclosure cases all the time. Nobody else knows because as soon as a homeowner wins or gets into a winning position they are offered money for their silence. The situation worsened when Florida and courts in other states turned down the homeowner’s demand for attorney fees after the homeowner had flat out won the case — especially where the case was dismissed for lack of standing.

Here the homeowner once again wins, having advanced several defense narratives. The homeowner applies for recovery of attorney fees and the demand is rejected because the loan contract no longer exists or because the party seeking to use it was shown not to be party to it, at least when suit was commenced. The Florida Supreme Court reversed that decision and rejected others like it.

Recognizing the danger of the erroneous rulings from the trial court and the district courts of appeal, the Court rejected arguments that a dismissal, voluntary or otherwise, based upon lack of standing meant that the loan contract no longer existed. While not completely abandoning the lower courts the Florida Supreme Court has narrowed the issues such that it is again almost always arguable and even inevitable that if the homeowner wins the foreclosure case an award of fees will follow.

fla s ct attny fees 1-4-19 sc17-1387 Glass v Nationwide

see also Follow Up Article to this Article

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Let us help you plan for trial and draft your foreclosure defense strategy, discovery requests and defense narrative: 202-838-6345. Ask for a Consult or check us out on www.lendinglies.com.
I provide advice and consultation to many people and lawyers so they can spot the key required elements of a scam — in and out of court. If you have a deal you want skimmed for red flags order the Consult and fill out the REGISTRATION FORM.
A few hundred dollars well spent is worth a lifetime of financial ruin.
PLEASE FILL OUT AND SUBMIT OUR FREE REGISTRATION FORM WITHOUT ANY OBLIGATION. OUR PRIVACY POLICY IS THAT WE DON’T USE THE FORM EXCEPT TO SPEAK WITH YOU OR PERFORM WORK FOR YOU. THE INFORMATION ON THE FORMS ARE NOT SOLD NOR LICENSED IN ANY MANNER, SHAPE OR FORM. NO EXCEPTIONS.
Get a Consult and TERA (Title & Encumbrances Analysis and & Report) 202-838-6345 or 954-451-1230. The TERA replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
==========================

This case opens a can of worms for the banks and servicers and corroborates much of what I have been writing for 12 years.

At issue was the homeowner’s right to prevail on an attorney fees award after winning the case in the trial court. This has previously been denied on the basis that cases dismissed for lack of standing meant that there was not contract. But the Florida Supreme Court says that the fact that just because the party involved had no right to enforce the contract doesn’t mean there was no contract.

The clear implication here is that the court did not want the erroneous rulings of trial courts and appellate district courts to be construed as completely canceling the loan contract. Any other ruling would be inherently ruling on the rights of unidentified third parties who DID have a right to collection of payment from the borrower’s debt and who did have a right to enforcement — without any notice to them because they are undisclosed and unknown.

The Supreme Court ruled that failure to allege or prove standing does not negate the fact that the homeowner is the prevailing party and entitled to fees under F.S. 57.105(7).

Citing its own decision in 1989, Katz v Van Der Noord 546 So 2d 1047, the Supreme Court held that even if the contract is rescinded or held to be unenforceable the prevailing party is still entitled to fees under the reciprocity provisions of F.S. 57.105(7).

This upends a basic strategy of the banks and servicers. Up until this decision they were virtually guaranteed an award of fees and costs if they won and immunity to fees if they lost. This reopens the fees issue and may give attorneys a reason to accept foreclosure defense cases — even on contingency or partial contingency.

But the court, perhaps in dicta, also mentions whether the note is negotiable, quoting from the homeowner’s arguments and pleadings.

Up until now the mere existence of the original note and in many cases a copy of the note, was sufficient to regard the note as a negotiable instrument. But the Florida Supreme Court is hinting at something here that the banks and servicers really don’t want to hear, to wit: it takes more that announcing the existence of a note to make it negotiable. This is not so.

Which brings me to my final point: read carefully the day the claimant is introduced and you will probably find that the note and assignment are not facially valid because they require reference to parole or extrinsic evidence. This bars legal presumptions, at least in the absence of a specific reference to the documents supporting the execution of the instrument as a substitution of trustee, an assignment or an endorsement.

The court was more than hinting at the idea that subsequent treatment of the note, which may have been a negotiable instrument at the time of execution (if the “lender” was in fact the lender). The question is whether the note is facially valid, to wit: whether the note specifically names a maker, payee and an unconditional promise to pay. If the originator was not the lender then extrinsic evidence would be required to prove the loan and the debt and the party who would have been appropriately named as payee on the note.

If subsequent indorsements or assignments for a note that WAS negotiable remove certainty from one or more of the elements of a facially valid instruments, then it is no longer a negotiable instrument. And THAT means that the all “reasonable” assumptions and legal preemptions are taken off the table.

The reason is simple. In order to be a negotiable instrument the assignee or successor must have certainty as to the parties and terms of the note. If extrinsic or parole evidence is required to provide that certainty the instrument is not negotiable and thus not entitled to any assumptions or presumptions.

So for example (taken from another case) when a Substitution of Trustee occurs in a nonjudicial state and it is executed by “U.S. Bank National Association, as trustee, in trust for registered Holders of First Franklin Mortgage Loan Trust, Mortgage Loan Asset-Backed Certificates, Series 2007-FF I, by Select Portfolio Servicing, Inc., as attorney-in-fact” then there are several points that require extrinsic or parole evidence, making the note non negotiable or at least arguably so.

In this scenario for an assignee to take a note from a party claiming rights to enforce in this instance one must know

  1. The name of the Trust, and the jurisdiction in which it was organized and is now existing.
  2. The instrument by which US Bank claims to be trustee
  3. Identification of “registered holders”
  4. The identification and content of the certificates
  5. The instrument by which SPS claims to be “attorney in fact”
  6. If you look closely you will also see that there is a question as to whom it is claimed that SPS is representing as attorney in fact. In any event “attorney in fact” means that a power of attorney exists but without specific reference to that power of attorney by date and parties, extrinsic or parole evidence is required meaning that no assumptions or legal presumptions may be made.

In other words the note cannot be accepted by anyone without extrinsic evidence. The fact that documents are apparently accepted by the assignees doesn’t change anything as to the facial validity of the document. Without facial validity there can be no negotiability under Article 3 of the UCC. Without negotiability there can be no assumptions or legal presumptions and thus the claimant must prove every element of its claim without presumptions.

And of course when the homeowner wins an award of attorney fees is now once again probable in addition to court costs.

Remember always: the point is not who can get away with enforcement. The point of the law is assuring that the owner of the debt is the one enforcing the debt and collecting the proceeds of enforcement. Before false claims of securitization this premise was almost universally true. Now it is rarely true that the true owner of the debt is represented.

And the apparent absence of such a party due to manipulation of the debt by intermediaries, does not legally create a vacuum into which anyone with knowledge and access to data may step in and claim rights of enforcement. As stated in California Ivanova decision the law does not allow the borrower’s debt to be owed to anyone whose premise is simply that they claim it.

Older Forensic Title Analyses Need Updating — Even Ours

 A recent request from an old client brought to mind the changes that have occurred, as in her case, since 2011 — more than 7 years ago.
A quick review indicates that the facts were correct but the conclusions need tweaking. And the title record should be updated. Many new laws and case decisions have occurred since that report was finished and many new facts have been revealed about these older transactions.

For example it now appears that our assumption about the flow of payments was incorrect.
  1. Your payments were being made to a subservicer who was forwarding money on a separate contract to a Master Servicer.
  2. The Master Servicer then authorized, in its sole discretion, third parties to make certain payments to investors who had purchased certificates issued in the name of a trust, which turns out to not exist.
  3. The trust name was being used as a fictitious name for the named underwriter of the certificate offering. But the actual transaction was not an underwriting; it was simply a sale by the party posing as underwriter (implying it was working for a third party, presumably the nonexistent trust).
  4. By contract, the investors purchased their right to receive money arising out of a promise to pay issued by the named underwriter (i.e., seller) that was unrelated to the terms of repayment on any note.
  5. And most importantly the investors waived any right, title or interest to the loans, debts, notes or mortgages.
  6. Thus you can see that actions undertaken in the name of the holders of certificates or a REMIC Trust or the Trustee of a REMIC trust are all fabricated, to hide the fact that the obligation of the borrower has been transformed into an unsecured obligation to pay intermediaries who converted the investors’ money and thus claim to be principals entitled to enforce a debt in which they had no investment.
  7. Most of the documents uploaded to SEC.gov, if at all, are either unsigned or incomplete (or both) lacking a mortgage loan schedule or any reference to a particular loan. Such documents are ONLY uploaded to SEC.GOV which has no power to charter or approve any entities nor their filings, as long as they have been granted access to upload documents. Their existence on SEC.GOV means nothing.
  8. An assignment without actual transfer of the debt is without effect. In virtually all cases involving false claims of securitization no payment of any kind was ever made by any party in the chain for the origination or purchase of the loan. Our Case Analysis examines the issues arising from transfer of a promissory note which can cause legal presumptions to arise concerning ownership of the debt and transfers thereof.
  9. Analysis of the fictitious “trust” documents reveals the absence of essential elements of a trust hence leading to the conclusion that no actual trust was intended notwithstanding the illusions and implications contained in the documents themselves and the representations of attorneys and representatives of “servicers” to the contrary. Upon case analysis (apart from title analysis contained in our TERA report) the following basic elements of a trust are usually absent.
    1. Complete signed trust instrument
    2. Trustee with powers to administer the affairs of the trust and the trust assets
    3. Trustor/settlor creating the trust.
    4. Beneficiaries of the trust
    5. RES: anything that has been entrusted to the named trustee to manage on behalf of the beneficiaries
My suggestion, if the issues are still pending, is that you order the current TERA and the PDR PLUS, which includes a recorded CONSULT.
CLICK HERE TO ORDER CONSULT (not if you order PDR)
CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR BASIC or more probably the PDR PLUS, in your case — includes CONSULT)

Using TILA Rescission as Jurisdictional Issue

I think TILA Rescission should be approached as a jurisdictional issue since it focuses on the procedural aspects of the TILA Rescission statute. In other words it should always be front and center.

I think a problem with TILA Rescission is that not even borrowers understand that the rescission issue is over. By asking a court to  make rescission effective you underline the correct premise that rescission has already occurred. All your pleadings after that should be based upon that premise or you undermine yourself.

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Let us help you plan for trial and draft your foreclosure defense strategy, discovery requests and defense narrative: 202-838-6345. Ask for a Consult or check us out on www.lendinglies.com.
I provide advice and consultation to many people and lawyers so they can spot the key required elements of a scam — in and out of court. If you have a deal you want skimmed for red flags order the Consult and fill out the REGISTRATION FORM.
A few hundred dollars well spent is worth a lifetime of financial ruin.
PLEASE FILL OUT AND SUBMIT OUR FREE REGISTRATION FORM WITHOUT ANY OBLIGATION. OUR PRIVACY POLICY IS THAT WE DON’T USE THE FORM EXCEPT TO SPEAK WITH YOU OR PERFORM WORK FOR YOU. THE INFORMATION ON THE FORMS ARE NOT SOLD NOR LICENSED IN ANY MANNER, SHAPE OR FORM. NO EXCEPTIONS.
Get a Consult and TERA (Title & Encumbrances Analysis and & Report) 202-838-6345 or 954-451-1230. The TERA replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
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The plain wording of the statute says that rescission is effective, as a matter of law, when delivered (or sent via USPS). SCOTUS says no lawsuit is required to make rescission effective. The fact that the banks treat it as ineffective is something they do at their own peril. The statute explicitly says otherwise along with REG Z procedures based on the statute 15 USC §1635 and the Jesinoski decision.
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Under the statute and Reg Z the loan contract is eliminated and replaced with a new relationship under the statute — a set of procedures creating a statutory claim for the debt. It follows that ONLY a party who is an actual creditor or owner of the debt can even appear much less claim or defend anything about rescission. If they claim standing from the loan contract, they have no standing.
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Hence if the formers holders of the now nonexistent note and mortgage are also creditors they have no problem. They can plead anything they want, including defenses to or motions (or lawsuits) to vacate TILA Rescission. 
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BUT usually the former holders of the loan contract (note and mortgage) were using the loan CONTRACT as the sole basis of their standing — desiring to raise legal presumptions from the existence of those contracts (note and mortgage).
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What happens next is incontrovertible by logic or legal reasoning. Although they might be named parties to an action pending in court such ex-holders have lost their standing in that court action or they never had it to begin with. By operation of law the note and mortgage from which all their claims derive do not exist. That is a jurisdictional issue and it MUST be decided against the banks — by operation of law. Failure to present this has resulted in a number of escape hatches for judges who don’t like TILA Rescission. Your job is to close those hatches.
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The whole point of the rescission strategy is to remove any possibility of an arguable claim for standing to foreclose on the now nonexistent mortgage or deed of trust. Unless the claim for standing is based upon ownership of the debt subject matter jurisdiction is absent.
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This means that no claim or defense against the effectiveness of the rescission can be raised by anyone other than the owner of the debt.  
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This also means that there can be no foreclosure because the loan contract has been replaced by a statutory “contract.”
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Borrowers undermine this premise by filing lawsuits asking the court to declare that the rescission is effective. The TILA Rescission statute 15 USC §1635 has already answered that and THAT is what should be pled. SCOTUS has also already answered that in the Jesinoski case. Asking the court to declare it so means that you take the position that the statute has not already answered that question, that SCOTUS has not already ruled and that therefore it is now up to the trial court to make a ruling.
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You are opening the door for argument when there is no such argument intended by the statute or the US Supreme Court. Upon being invited to do so a judge who doesn’t like the statute will come with reasons not to declare the rescission effective — usually based upon objections from parties who could not possibly have standing to raise such objections.
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If that is true (and it is true by definition in our legal system once the highest court has ruled) then a party seeking relief from rescission would need to allege that they are the owners of the debt and then  prove it without reference to the note or mortgage. In other words they would need to prove they funded the debt or they purchased it with actual money.
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We all know that the fake securitization scheme was entirely dependent upon illegally funding the origination and purchase of the loans in the fictitious name of the trust for the account of the underwriter and that the investors were cut off contractually from having any right, title, interest or even opportunity to review or audit the portfolio of loans claimed to be in a fictitious pool that was being managed by a trust that did not exist, which in turn was managed by a trustee that had no powers of administration for the benefit of nonexistent beneficiaries.
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Hence the problem of the banks is clearly that they can’t prove funding or purchase because doing so would expose their illegal activities. Whether this would actually lead to a free house is debatable, depending upon the exercise of equitable jurisdiction in the courts.
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What is clear is that the banks were told by their own lawyers not to ignore rescission or they would lose everything. They ignored it anyway believing they could steamroll through the courts, which was in fact an accurate measurement of their own power.
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BUT as the banks persist along this strategy they continually build the inventory of homes that by operation of law are still owned by the borrowers, all other actions being void ab initio, not voidable by any stretch of the imagination.
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AND the banks are by their own actions and inaction causing the debt to slip away from them as well. Under TILA Rescission the old loan contract is replaced with a new statutory contract. Actions for enforcement under that contract must be based on violation of TILA. TILA has a statute of limitations. Thus claims beyond the statute of limitations are barred. And THAT means that claims for the debt are barred after the statute of limitations (on claims arising from TILA) has run — as result of plain arrogance of the banks — and no fault of any borrower.

How to Undermine the Credibility of Deutsch, Wells Fargo et al.

The entire securitization strategy is thus predicated upon the ability to convince a judge to presume facts, even if they are untrue.

The pattern of misconduct revealed in the track record of the major banks could be used to undermine the legal presumptions and force the proof of the loan, purchase etc.

BUT the major banks don’t often appear as the claimant in foreclosure cases even though it is they who are pulling the strings and who will receive the proceeds of foreclosure and it is they who receive the proceeds of mortgage payments. Neither the investors nor the nonexistent trusts see one penny.

So the challenge is to tie in the major bank who is the underwriter of the certificates sold in the name of the fake trust and who also names itself as “Master Servicer” of the fake trust with essentially no duties.

This requires a sea change in how foreclosure defense is conducted. And it is a rough road.

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Let us help you plan for trial and draft your foreclosure defense strategy, discovery requests and defense narrative: 202-838-6345. Ask for a Consult.
I provide advice and consultation to many people and lawyers so they can spot the key required elements of a scam — in and out of court. If you have a deal you want skimmed for red flags order the Consult and fill out the REGISTRATION FORM. A few hundred dollars well spent is worth a lifetime of financial ruin.
PLEASE FILL OUT AND SUBMIT OUR FREE REGISTRATION FORM WITHOUT ANY OBLIGATION. OUR PRIVACY POLICY IS THAT WE DON’T USE THE FORM EXCEPT TO SPEAK WITH YOU OR PERFORM WORK FOR YOU. THE INFORMATION ON THE FORMS ARE NOT SOLD NOR LICENSED IN ANY MANNER, SHAPE OR FORM. NO EXCEPTIONS.
Get a Consult and TERA (Title & Encumbrances Analysis and & Report) 202-838-6345 or 954-451-1230. The TERA replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
===========================

[IN RESPONSE TO SOME QUESTIONS ABOUT THIS ARTICLE, I AM NOT DOING A 180. IN ITS SIMPLEST FORM WE ARE TALKING ABOUT TWO (2) BANKS — ONE WHO RENTS ITS NAME OUT TO BE USED “AS TRUSTEE” TO THE OTHER BANK WHO IS THE UNDERWRITER OR SUCCESSOR TO THE UNDERWRITER AND ALSO WHO SERVES AS “MASTER SERVICER” OF A NONEXISTENT TRUST. — THE UNDERWRITER IS NOT REALLY ACTING AS UNDERWRITER NOR AS MASTER SERVICER. IT IS STILL AN INTERMEDIARY BETWEEN INVESTORS AND BORROWERS BUT ASSUMES THE ROLE OF PRINCIPAL.]

Clients keep asking the same question: they point to the most recent news article detailing the corruption and malfeasance of the banks and ask how knowledge of such behavior could help their foreclosure defense. Remember that the news articles are not convictions proving they did what is alleged. So you would have to prove that the alleged acts in other cases were (a) actual and (b) relevant to your specific case in foreclosure.

People who go to court sounding off about the reportedly bad acts by their opponent gain nothing. In fact, it weakens their case because they sound like conspiracy theorists.

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However, I am working on a strategy of bringing in a pattern of bad acts to use as a prospective tool to defeat the legal presumptions on which the entire foreclosure claim rests. This requires a knowledge of the burden of proof. So in order to defeat the presumptions you only need to show that a reasonable inference can be made that the documents or testimony might be fabricated or misleading and that therefore the court should use no presumptions of fact or law and require actual proof from the claimant. This is possible.
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Such a ruling by the court will most certainly end the case because there are no facts in real life on which the claimants in most foreclosure can win the case. Their success rests solely on presumptions of validity, authenticity and conclusions.
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Legal presumptions can be applied as a convenience if the source of the document or act is credible. The challenge here is to show that the supposed evidence from which the legal presumptions are then applied is self-serving, not produced by a party who is neutral as to the outcome and having a pattern of malfeasance and negligence etc., such that there is a reasonable inference that documents produced by them in a foreclosure case are suspect, and therefore they are not entitled to the presumption. This is not a high bar.
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Hence they must actually prove the loan, the purchase of the loan the ownership, the right to service etc. And they must prove the actual existence of the foreclosing party — remembering that when a trust is implied as the foreclosing party it most likely does not exist and therefore could not possibly own anything much less your loan.
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Your opposition will fight tooth and nail to avoid such a ruling. They know that there is no case they can prove without employing the use of legal presumptions that results in implied findings of fact that are opposite to the true facts. The entire securitization strategy is thus predicated upon the ability to convince a judge to presume facts, even if they are untrue.
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Your strategy should be limited to undercutting those presumptions and raising reasonable inferences and questions about the self-serving documents that are being used by attorneys to lead the court into applying legal presumptions that should not be applied.
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Note to foreclosure defense lawyers: Deep down inside most of you believe that foreclosure defense consists of the use of technicalities to make mountains out of mole hills. You still believe that the debt is valid, your client owes it, your client defaulted and that the foreclosure is a valid exercise of collateral protection. So you don’t want to be associated with game-playing and delays because you think that it will negatively impact your standing in the legal community. What you are doing is erroneously applying the legal presumptions before you enter the courtroom. Take away those legal presumptions and look at the case from a real world prospective, not from what you think must be true. And think about your standing in the your legal community when you start winning these cases.

Foreclosure Defense Discovery Timeline

In answer to a number of very similar questions about the paid services we provide on www.lendinglies.com regarding the subject of Discovery, I submit the following:

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The TERA will definitely give you narrative from which you can cut and paste questions or at least ideas on what questions you could ask in discovery. But it is far from a complete analysis for discovery. It is a part of the analysis required to come up with a complete defense narrative that you can use to guide you through litigation and educate the judge on what is wrong with the false case against you and your property (if that is the case).
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The Case Analysis goes much deeper and completes the defense narrative as well as providing you with more in depth insight that can be used for cut and paste into discovery and the narrative for defending your discovery requests which most certainly come under attack.
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Discovery is a multi faceted approach.
  • First you have the QWR and DVL.
  • Then you have the complaints to the State AG and the CFPB.
  • Response to statutory letters often provide the basis for the next step, because your opposition will evade, lie, and provide inconsistent answers. 
  • It is not uncommon to see them back off of a sale or dismiss a foreclosure case entirely when confronted with questions and accusations from the homeowner. 
  • The next step in the discovery process is the filing in court and service of discovery requests (usually limited to a specified number — i.e., you might need to submit more than one set) in the form of one or more of the following:
    • Interrogatories
    • Request to Produce (only aimed at party who is named in litigation)
    • Subpoena for documents
    • Subpoena for deposition duces decum
    • Request for Admissions
    • Request to enter or inspect
  • Following the filing and service of any discovery request you will almost definitely be met with objections and motions to strike and so forth. You must use the defense narrative to justify your questions and to answer how your request might lead to the discovery of admissible evidence. This part requires an aggressive stance — one that is often missed by pro se litigants and foreclosure defense lawyers.
  • Once you have received an order commanding compliance with your discovery request you will probably need to consider filing a motion for sanctions for non compliance. (We know that they will never admit that there is no trust or that the claimant has no interest in the loan or that the claimant won’t receive the proceeds of liquidation of the property.)
  • And lastly you will need to preserve objections before trial and possibly file a motion in limine to restrict the evidence your opposition can introduce at trial to the extent that includes discovery items they refused to give you.
While the questions will generally follow the same theme from case to case your discovery will be shot down if it is not specific according to your  defense narrative for this case alone.
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We provide all these services either through www.lendinglies.com or by direct retainer of Neil Garfield (neilfgarfield@hotmail.com) as an expert consultant or for legal consulting and analysis that can be used in conjunction with and in support of a local attorney.
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In order to put all these elements into an actual plan for your case alone, you must submit the REGISTRATION FORM to us before even beginning. Put as much information on then form as you can do. The less information you give the more work we must do and must charge you for us to do the work.
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Finally that leads to the Consult. Usually a thirty minute CONSULT is sufficient. In that conversation we decide on the path that you wish us to take in preparing pre litigation and litigation documents. Later Consults are for strategic assistance in confronting the efforts of the lawyers for often nonexistent clients to obfuscate, wear you down and thus defeat you.
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Generally speaking we require consults to be ordered with the PDR (Preliminary Document Review). This pays us to review some of your documents and the most recent reports and correspondence in preparation for the Consult with me, Neil Garfield.
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But all of this work is virtually identical to the background work needed to defend against a motion for summary judgment. However, if you want us to write the opposing motion and brief you need to hire us to do that by direct retainer of Neil Garfield (neilfgarfield@hotmail.com) as an expert consultant or for legal consulting and analysis that can be used in conjunction with and in support of a local attorney.
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