Ocwen Forced to Freeze 17k Foreclosures

by William Hudson

Over 17,000 loans placed on foreclosure hold, that Ocwen likely has no right to foreclose upon in the first place.

Ocwen not only has been posting huge financial losses this year, but the non-bank servicer has finally been halted from foreclosing on more than 17,000 loans it services due to violations of the National Mortgage Settlement that it failed in the second half of 2014.

Joseph Smith, the monitor of the National Mortgage Settlement (NMS) announced back in October that Ocwen had failed metric 31. Metric 31 tested whether the mortgage servicer sent a loan modification denial notification to a borrower that included the reason for the denial, the factual information considered by the servicer in making its decision and a time-frame by which the borrower can provide evidence that the decision was made in error.

According to Smith, Ocwen failed to remedy the issues that led to the compliance failure.
Smith’s office stated that Ocwen “was delayed” in implementing its Corrective Action Plan for the failure because of “difficulties in resolving the technical issues that led to the original fail.”   Therefore, Ocwen must place 17,496 loans that “could have been affected” by this issue on hold and cannot pursue foreclosure.

“While Ocwen has made progress toward correcting a number of past fails, it has not resolved its issues that led to its failure of Metric 31,” Smith stated. “Therefore, I will not allow Ocwen to move forward with foreclosures on any borrowers who could have been affected by this failure until each of these borrowers has correct information and a chance to appeal,” Smith said. The freeze will not be lifted until every borrower who was possibly been affected receives the correct information and is offered a chance to appeal.

However, this is a minor slap on the wrist for Ocwen who routinely violates the National Mortgage Settlement in ways much more egregious than this. In fact, all banks that agreed to the National Mortgage Settlement are in serious breach of their NMS agreements.  There has literally been NO change in behavior except that the banks have become more sophisticated in their ability to create the illusion of compliance, while continuing to present fabricated documents to foreclose.

The fabrication of documents has now resulted in tens of thousands of foreclosures by entities that had NO standing to foreclose but were able to create the prima facie appearance of holder status by presenting fabricated endorsements, assignments, notarizations and false affidavits.  The noncompliance of Ocwen and other big banks should be grounds for lawyers to challenge legal presumptions because we have, again, obvious proof in the public domain that Ocwen has not complied with the National settlement, has not performed any real audit as to pretender lender, ownership, authority and standing of the loans Ocwen services.

 
However, this a deliberate sleight of hand. Why are we focusing only on the servicer to the exclusion of the principal who is being named as Plaintiff in Judicial states or as beneficiaries in nonjudicial states? What the banks are doing here is a PR trick. The banks are getting everyone to focus on the bookkeeping for the payments instead of whether Ocwen had any right to be involved in the first place- because it was serving at the behest (allegedly) of a trust that does NOT and never did own the loan. The auditor is well aware that Ocwen has bigger issues than failing to correct metric 31- but the NMS monitors must maintain the appearance that they “mean business” and that has resulted on focusing on a relatively inconsequential detail.

 
The real question is why is anyone relying upon Ocwen? Best case scenario is they are a bookkeeper who keeps tracks and enforces payments and then forwards them to the alleged creditor. Ocwen doesn’t know or care if the purported creditor is the creditor. They just do their work and PRESUME (best case) that they have the name of the creditor. We all know now that any trust named as a creditor is NOT a creditor because if they were, there would be an assertion that the trust was a holder in due course which would eliminate all borrower defenses.

 
The worst case scenario is that they are not forwarding payment to any creditor and they have no idea who the trust is or if it still exists. We know the trusts are empty, we know most loans were not delivered to the trusts, we know there is no holder in due course- so why are we focused on the fact that Ocwen violated one metric when it has violated all settlement metrics and is engaging in massive fraud?

 
Not to be deterred by the NMS reprimand, Ocwen spun the issue into a positive stating, “Families across the country are still being impacted by the financial crisis,” the company stated. “Ocwen will continue to work with our customers, especially those facing foreclosure, to find loan modification programs, including principal reduction programs, to help them better afford and remain in their homes.”

 
What Ocwen really should have said is “Families across the country are still being impacted by the financial crisis because we have snowed Congress and the Courts.” Furthermore, “Ocwen will continue to confuse and deceive our unfortunate customers, especially those who are going to end up giving us their home, find ways to deny loan modification programs, and hope they find a place to rent.”

 

The National Mortgage Settlement was an insignificant slap on the wrist and was nothing more than a “cost of doing business” tax deduction that will do little to impact their bottom line. This strategy is similar to the pharmaceutical companies who create billion-dollar blockbuster drugs by “fudging”  clinical safety trials, knowing that in 7 years when the drug goes off-patent they will likely be sued by approximately 5% of those treated by the drug who experienced medical complications (think Risperdal, Gardasil, etc). When you have a billion dollar a year drug, the $500 million dollars paid in damages is merely a cost of doing business and is built into the drug’s profit/loss structure. Apparently large banking institutions have the same profit strategy.

 
For instance, hypothetically, 90% of all homeowners will not fight foreclosure. Of the 10% who fight back, 5% of those homeowners will have their cases dismissed, another 2% will have incompetent counsel, and another 1% will have a biased judge. Therefore, the banks will face 2% of homeowners who persevere over great odds to simply enforce their right to due process. For the billions in profit they have made they will pay a paltry penalty. In order for the banks to change their wicked ways they must face heavy punitive costs, legal costs, fines and sanctions.

 
But even then, until bankers are prosecuted for criminal conduct- nothing is going to change because the banks will still be financially rewarded for their conduct. White collar banking fraud and forgery must be treated like any other type of fraud and forgery. The crimes are identical. The banks are confident (after 8 years of this behavior) they will not be heavily fined by government regulators or the courts; and no bank employee will be prosecuted.  The banks have received a message to pillage with abandon and forge, fabricate, deceive, and conspire with impunity if you wear a tie or expensive shoes. The banks are modern day pirates but instead of a ship, hook and eye patch; they conduct their crime with Bugattis, Breitling watches, and Lasik surgery.

 
When the National Mortgage Settlement actually starts to penalize servicers for foreclosing on loans they don’t own- the NMS will have done their job. Stories like this are merely window dressing for an ineffective program that has no chance of deterring the behavior of the pretend lenders.  Until bankers and their counsel are charged criminally for their conduct or huge punitive awards are given to homeowners who lose their homes- it is business as usual for the banker crime syndicate. Ocwen being forced to put 17k foreclosures on hold does one thing- it gives them more time to fabricate documents to ensure the “metrics” appear to be met.

 

The Deliberate Destruction of Evidence

By William Hudson

To Listen:  https://youtu.be/jOeAe9zT5D0

Attorney Neil Garfield and James “Randy” Ackley got into a discussion on the Neil Garfield Show about why the courts were allowing loan servicers to present evidence that was hearsay, often fraudulent and did not comply with the rules of evidence. Ackley stated that, “The court is allowing evidence to be introduced that would not be admitted in any other type of case.”

The discussion brought up the fact that courts are making erroneous presumptions in favor of the banks despite the fact that there is now a public record of banks fabricating evidence, robosigning documents, false notarizations and bank employees testifying under oath about facts they know nothing about. The argument dovetails back to the locus of destroying (or losing) a promissory Note- the central issue in almost every foreclosure to date.

 
Why would a lender deliberately lose a promissory note when the note has cash value? Why deliberately destroy or lose a promissory note? Last summer, after 13 years of Litigation- a client of Neil Garfield’s said their servicer wrote a letter saying, “oops we can’t seem to find your promissory note.” They did this about the same time the client discovered that they had fabricated the Note and the employee who they claimed signed the Note hadn’t endorsed Notes for 13 years.  The “lost” Note appears to be the strategy du jour for 2016 (better to “lose” a Note than go to prison).

 
And yet, it is now clear that promissory notes underlying mortgage backed securities were deliberately lost or destroyed on a systematic basis, in what can only be deemed as outright fraud at this point.  The Florida Bankers Association already admitted to the Florida Supreme Court that banks destroyed notes after e-recording the notes to “avoid confusion” and that this was a standard business practice. Professor Katherine Porter wrote way back in a 2008 Texas Law Review article that examined the loan documentation from 1700 bankruptcy cases and discovered 41.1 % of the files audited lacked a promissory note to support the proof of claim.

 
Nothing has changed, other than the banks now have the ability to hire firms that will forge the documents for them (although they typically do a poor job with their sloppy photoshop attempts). It is now FACT that the Notes were almost NEVER delivered to the MBS trusts but the courts continue to pretend that the prima facie evidence before them is legitimate. This isn’t shoddy paperwork- it is flat out criminal conduct. The banks are daily getting away with what would result in you or I going to jail for at least three years or more.

 
Destroying or losing a Note is insane. Promissory notes are negotiable instruments (like checks) and by law only the original (and not any copy) is enforceable against the borrower. Under the UCC (uniform commercial code), section 3-309, a lost note may not be detrimental to recovery by the owner of the note. But the requirements of proof under this section are stringent; the section requires that possession and ownership of the promissory note occur while vested in the plaintiff at the time of loss.

 
Most MBS notes disappeared before being transferred to the trust that allegedly holds the note, which would defeat recovery under U.C.C 3-309. In order to enforce a lost note under the UCC, the court must be stringent to ensure that “the person required to pay the instrument is adequately protected against loss that might occur by reason of a claim by another person to enforce the instrument.”

 

Yet, on a daily basis homes are foreclosed on with absolutely NO compliance with the Uniform Commercial Code requirements. Furthermore no indemnity bond is posted by the bank to protect the homeowner from another party who actually can prove they own the Note, leaving the homeowner exposed to double-jeopardy.

 

There is a gross DOUBLE STANDARD that applies to foreclosure cases in America. However, look on the bright side- if the courts are this corrupt it is better to fight a foreclosure than a murder charge. If the courts operated the criminal courts the way they do the trial courts, the incarceration rates would quadruple. Can you imagine the same rules of evidence applied to a murder charge that are applied in foreclosure defense? “Your honor, it appears to be blood but it could be ketchup.” Judge, “The prima facie evidence is sufficient. Let’s make sure we can fit him in on the lethal injection schedule for next year.”

 

The fact that the banks do not possess the Notes is not a technicality. Instead, the lost Note issue is a scheme designed to protect the commercial banks with no concern for protecting the borrower from fraudulent claims. The ultimate protection for the borrower is an original canceled note- but even if you pay off your home in full- you will never receive the cancelled Note. Everything has been flipped on its head- Notes are fabricated on a computer, presented as real, and if the paperwork “looks” legitimate- foreclosure can proceed. The consumer has more protection when they register an old vehicle for $500.00 than they do when they purchase a $500,000 home (and the DMV records are much more accurate).

 
The courts have an obligation to homeowners to demand proof that the bank has standing. The banks have gotten away with so much fraud that they are now brazen in their arrogance. On a routine basis banks show up with documentation that is deficient or even fraudulent and the judges are still ruling in favor of the banks. No Note? No problem! No Indorsement? Oh well- go create one and bring it to the next hearing! The courts and banks are concerned that foreclosures will slow and costs will increase but have no concern that the rule of law has imploded and fraud is now considered a standard business practice.

 

The ONLY solution to the current foreclosure crisis is for EVIDENCE to be introduced like it is in ANY other civil or criminal case.  In light of the fact that banks have now admitted they have participated in fraudulent activities- the servicers must turn over their business records to ensure they mesh with both the paper trail and the alleged money trail.  There is simply no other option for homeowners now that banks lie with impunity, law enforcement takes no action, and the courts look the other way.

The Neil Garfield Radio Program: James “Randy” Ackley Recording

Listen Here: https://youtu.be/jOeAe9zT5D0

Yesterday, attorney James “Randy” Ackley appeared on the Neil Garfield Radio Show.  The show was a fascinating discussion about banks’ creating the illusion of standing when a bank is unable to demonstrate they have the right to foreclose.

Neil and Randy addressed why the courts were allowing loan servicers to present evidence that was hearsay, often fraudulent and did not comply with the rules of evidence. Ackley stated that, “The court is allowing evidence to be introduced that would not be admitted in any other type of case.” The discussion brought up the fact that courts are making erroneous presumptions in favor of the banks despite the fact that there is now a public record of banks fabricating evidence, robosigning documents, false notarizations and bank employees testifying under oath about facts they know nothing about.

To learn more about Randy Ackley at: http://4closurefraud.org/2016/04/05/james-r-ackley-responding-to-disaster-a-contemporary-approach-to-foreclosure-defense

 

Consummation- Is an Act not an Illusion

by William Hudson

Neil Garfield is adamant that if consummation did not occur, there can be no contract. His belief is supported by hundreds of years of contract law (including the marriage contract). In regards to marriage, most people know if consummation occurred, yet when it comes to taking out a securitized loan like a mortgage, most people only assume it did.   Without proof one can only speculate that consummation occurred.

Due to the Sarbanes-Oxley Act, any lender in America should be capable of producing the needed documentation to prove they own a Mortgage and Note- and that consummation occurred. With the click of a computer mouse, instantaneously the journal entries in the lender’s financial, accounting, and general ledger systems should show that a loan was consummated and the Note was assigned to a valid trust. Instead, the banks resort to forgery and fraud. If they had the documentation, fraud would not be necessary.

Since around 2001 banks have been mocking up documents to create a paper trail to create the illusion of ownership- but in light of all the fabricated document fraud, it is time that homeowners demand to see the money trail and are permitted to do so. The money trail should begin at consummation of the loan between the two parties who agreed to contract: the homeowner and lender. However, this is not the way that consummation works in a securitized mortgage transaction. By design, the homeowner is not allowed to know who they are borrowing funds from- and transparency is of no concern.

Can you imagine this occurring in any other consumer transaction?  Imagine the chaos that would ensue, for instance, if you thought you were financing a truck through Ford Credit, yet unbeknownst to you, Honda funded the loan.  You may have ended up with the truck, but you may have been induced into a contract you didn’t agree with (especially if your goal was to “buy American”).  Why should Mortgage loans be any different?  And why should Congress bother passing laws like TILA if the banks are going to ignore consumer protection laws with impunity?

There can be no consummation when the party lending the money is never disclosed to the borrower. A homeowner is conned into believing the party listed on their note and mortgage is actually the party who is taking the risk by lending their own funds- when this party who is named on the Note is an originator- not a lender.

Has anyone stopped to ask why all the secrecy?   The only reason for secrecy is to hide the truth- whatever that may be (dark pools? empty trusts? stolen funds?). There is a reason for the deception that begins at the closing table, endures through servicing, and only ends upon sale of the property or payoff.

Consummation under the Federal Truth-in-Lending-Act occurs when the state law on contract or lending says it begins. According to attorney Neil Garfield, “Most state laws require offer, acceptance and consideration. So while the door is open to inconsistent results, in order to find that consummation did happen and that the date of consummation is known, we still must visit the issue of consideration.” Consideration is basically the exchange of something of value in return for the promise or service of the other party. Take note, consideration is not the exchange of value in return for the promise or service of an unidentified third party. However, modern securitization has nothing to do with the name of the original “lender” on the Note that in 99% of all cases did not loan anything of value.

When a homeowner is not provided the name of the party who is actually taking the risk and has skin in the game- they lose their ability to negotiate in good faith with this party (the investors of the trust). Over the span of a 30 year loan, “life” happens. It is terrifying that a bank can use one late payment as an excuse to create a default.

Banks were once responsive to homeowners because they had an actual investment and needed the homeowner to successfully make payments.   If a homeowner had a short-term cash flow problem, the banks were willing to work with them- it was in their best interest to do so. Homeowners no longer have the luxury of negotiating with the party who provided the funds, but must attempt to solve any mortgage issues with a loan servicer who is financially rewarded by engineering a default- by failing to provide responsive customer service to the homeowner (or by blatantly misleading the homeowner).

In fact, this week the CFPB announced that consumers made almost 900,000 complaints about their loan servicers between March and April 2016. The complaints center around three areas:

  1. Problems when consumers are unable to pay: Consumers complained of prolonged loss mitigation review processes in which the same documentation was repeatedly requested by their servicer. Consumers also complained that they received conflicting and confusing foreclosure notifications during the loss mitigation review process.
  2. Confusion over loan transfers: Consumers complained that they were often not properly informed that their loan had been transferred. As a result, payments made to either the prior or current servicer around the time of the transfer were not applied to their account.
  3. Communication issues with servicers: Consumers complained that when they were able to speak with their servicer, the information they received was often confusing and did not provide the clarifications they were hoping for.

According to the report, the mortgage companies with the worst records between November 2015 to January 2016 were Wells Fargo, Bank of America, Ocwen, and Nationstar Mortgage. Consumers are not receiving customer care because by design servicers profit when a default can be engineered. Based on the CFPB findings, it is obvious that the longer the servicer can prolong loss mitigation, the more fees they will potentially receive. A default allows them to collect thousands in late fees and penalties; and if they are lucky- foreclose on the home.

The servicer has no skin in the game and is incentivized to create a default by any means necessary- whereas, a true creditor does not want a default. The problem with the way the system is rigged is that the homeowner is prevented from knowing who they borrowed money from and therefore cannot negotiate in good faith with the party who has a vested interest in the homeowner making payment.

The central problem in all securitized mortgages is that the homeowner has no idea who they consummated the loan with. Although it is considered a predatory practice under Regulation Z to conceal the true lender, no government regulatory agency has stopped the practice of concealing the identity of the true lender at closing.  The TILA laws are on the books, but have no teeth.

Neil has said in the past that consummation only occurs after the closing agent receives and disburses the funds according to the alleged loan contract. Therefore, consummation does not occur on the date that the closing papers are signed. The requirement of giving the borrower disclosure papers three days before the closing is complete might put some daylight between the assumption that consummation occurred on the day the papers were signed.

Garfield states, “The simple argument is that the industry practice has always been that the borrower signs papers and THEN the closing agent requests or receives the money for the “loan.”” Therefore, Garfield doubts there is any support for saying that the borrower is contractually obligated to comply with the terms of the note or the mortgage if the money never came at all. Neil Garfield says that where the true problem lies is what occurs in the NEXT step.

“If we can agree that if no money ever came from anyone, the borrower doesn’t owe anyone anything and is not bound by the “facially valid” loan contract, then it follows that if no money came from the named Payee on the note and mortgagee on the mortgage, (beneficiary in a deed of trust), the “borrower” doesn’t owe anything to anyone,” states Garfield. If contract law was strictly followed, the homeowner is under no obligation to repay a party who didn’t lend them a dime.
This is where the issue of consummation becomes difficult to understand. “If money is sent to the closing agent by a party unrelated to the named payee on the note, then under what theory do we say that the note is evidence of the debt? It certainly should not be used to show that the borrower owes the payee any money because the payee did not make the loan and nobody related to the payee made the loan,” Garfield has repeatedly stated. Neil Garfield agrees with the assumption that the borrower owes back the money that was advanced on behalf of the borrower, but that transaction is not a debt nor a contract- it is a potential liability to the party whose funds were used to send to the closing agent.

That claim could not be in contract because the source of funds and the “borrower” never entered into a contract. The liability would be in equity and would exist independently of the false note and false mortgage, which means the claim from a real source of funds would not be subject to the note and mortgage but simply due on the basis of fairness in equity: the borrower received the benefit of the money from the money source and under quantum meruit would be obligated to repay the money.

This is where most people get lost on Garfield’s Rescission theories. Garfield never advocates that money is not owed to someone- what he argues is that the Note and Mortgage represent a transaction that never occurred- and therefore should be rescinded under TILA. Rescission would allow the REAL creditor (or investors) to come to the table and demand/receive payment.

And yet, loan servicers wanting to protect their unlawful gains (at the expense of the investors) are successfully deceiving the courts that consummation did occur. The entire mortgage scheme is rigged by a system of smoke and mirrors. There is evidence that the closing did not occur according to the contract- if the homeowner can manage to obtain the information through Discovery (but in 99% of all lawsuits the bank will not be compelled to reveal actual evidence). The courts could demand sua sponte that the servicer provide the actual business records and settle the matter- but this would reveal the truth that everyone has gone to great lengths to keep hidden.

When Congress wrote the Truth in Lending Act, they deliberately stated that the homeowner could rescind the Note within three days of consummation (they specifically did not say origination). The Supreme Court in Jesninoski reinforced the right to rescind and TILA was enacted so that banks would self-regulate and not devise reckless and predatory schemes (like what has happened). The homeowners and investors should not be punished for the deliberate obfuscation of the true terms of the “loan”.

All this analysis is aimed at one single point, to wit: that the source of funds does not meet the definition of a creditor to whom the money is owed. Most people understand Neil Garfield’s point but reject it regardless of how well it is founded in law and fact. They reject it because it upsets the mortgage securitization scheme started 20 years ago by the investment banks. It would mean that there is no creditor, there is no contract, and there is no obligation to comply with the payment terms under the note and mortgage. This is an unacceptable result for most people. They worry that the entire system would collapse if they were to follow the law as it has been written and decided for centuries.

But the feared consequence is not based in fact. The entire system does not collapse under this scenario. What happens is that the investors who bought fake Mortgage backed securities could deal directly with the borrowers and workout the terms of a mortgage loan that is both legal and enforceable. More importantly it would be a loan that would survive in value to the investor. As things stand now the Wall Street banks are driving as many cases as possible toward foreclosure because that is the way they collect the most fees — when the equity in the property is no longer higher than the claims for money upon liquidation.

So accepting the application of existing law as stated here, would mean that investors would suffer much lower losses and the homeowners would regain the equity in their homes or at least the prospect of equity while the wild terms and wild appraised prices of the past are abandoned. Obviously the SERVICERS would hate this equitable solution- because it would cost them the huge profits they receive through document fabrication, robosigning and other creative “solutions” that require fraud.

Let’s remember that when TARP was first announced, it was all about losses from mortgage defaults. When the government realized that homeowner defaults had little to do with TARP they expanded its meaning to include failing mortgage backed securities. But there were no bank losses from MBS because the banks were selling MBS not buying them. So then they expanded it again to include losses from credit default swaps, insurance contracts and other hedge products.

This was all based upon the premise that there MUST be a loan contract in there somewhere. There wasn’t in most cases. Nearly all of the foreclosures that have been rubber stamped by the court system were not only unnecessary, they were patently illegal based upon false representations from the banks. The foreclosure was a legal cover for all the prior illegal actions.

With that being said, if the homeowner only recently discovered that consummation did not occur; does the 3-year TILA window is likely untolled and the 3-day/3-year expiration time may never have commenced in the first place. Remember that according to law, Rescission is the act of rescinding; the cancellation of a contract and the return of the parties to the positions they would have had if the contract had not been made; rescission may be brought about by decree or by mutual consent.

Congress did not give you the Right to Cancel under TILA but the Right to Rescind. Cancellation means termination of the entire agreement by the act of parties/law. Whereas Rescission places the person back to the condition they were PRIOR to the contract; cancellation merely voids the contract and has no restorative properties. Congress could have simply allowed homeowners to cancel under TILA, but instead opted for Rescission. Cancellation would have stopped the bleeding, but Rescission actually reattaches the Limb. The judiciary must recognize that Congress used the words CONSUMMATION and RESCISSION not ORIGINATION and CANCELLATION in the Truth-in-Lending-Act so why should any Judge ignore the intention of the Act?  Rescission will eventually be won based on lack of consummation- but it may take another hearing before the Supreme Court before the state courts accept what consummation means.

Thursday on the Neil Garfield Radio Show: Attorney James “Randy” Ackley

Attorney James “Randy” Ackley will be the guest on Neil Garfield’s Radio program on Thursday, April 28, 2016 at 6 pm EST. Neil and Randy will discuss why the illusion of standing is insufficient to foreclose.

South Florida attorney James “Randy” Ackley knows a thing or two about the devastation of losing a home be it by a natural disaster or a fraudulent foreclosure.  Ackley, who was previously with the talented Tom Ice of Ice Legal in Palm Beach, FL, has opened his own practice in West Palm Beach and can be reached at 561-594-5671.

The following article is reprinted courtesy of www.4closurefraud.org.

 

Responding to Disaster, A Contemporary Approach to Foreclosure Defense

By James ‘Randy’ Ackley

The consequences of a family losing their home, it goes without saying, are horrendous. Helping people who have lost their homes is one of the most rewarding, yet heartbreaking, vocations a person can experience. I have been privileged to have had the opportunity to help families left homeless by both natural and human caused disasters around the world. From Hurricanes, like Andrew and Katrina and tornados and floods, to armed conflict in Kosovo, economic collapse in Bulgaria, the Indian Ocean tsunami in South Asia and earthquakes in Haiti and Japan.

One of the heartbreaking aspects of the work in those disasters, an aspect that accompanied the tremendous feeling of accomplishment on seeing the benefits of the work, was the subtle feeling of helplessness in the face of such overwhelming natural and human caused forces. While we were empowered to assist families and communities as they tried to respond to and recover from the loss of their loved ones, homes and infrastructure, we were always seeking ways to mitigate the impact of the inevitable disasters, but, we were almost always arriving after the event, facing the damage and other consequences of the disasters. Too late to save the homes and sometimes, the lives lost in the disasters.

I first started volunteering for the American Red Cross, Greater Miami Chapter, in 1988. I first learned damage assessment and mass care. (They offer the training free and welcome volunteers.) I was a young lawyer and the opportunity to volunteer seemed like a useful way to spend my free time. In 1990 I assisted with my first major disaster response, the fire at the Fontana Hotel, a residential hotel in Miami Beach.

The experience of helping people in such obvious and open ways was among the most rewarding of my life. By 1992, I was a member of the Board of Directors of the Palm Beach Chapter of the American Red Cross and I took a leave of absence from my work as a trial lawyer with FPL to respond to Hurricane Andrew.

In 1994, I took a break from the law and moved to Washington, D.C., with hopes that I would find actual employment in either the Red Cross or some other humanitarian organization. The week after I moved, the Northridge earthquake struck in Los Angeles and I was asked if I could volunteer in the Disaster Operations Center for the Red Cross in Alexandria, Virginia. Then, I was asked if I could respond to the disaster for a one-week assignment in the earthquake response operation in L.A.

Two months later I returned to D.C. and for the rest of the year I responded to disasters across the country on an as needed basis. In December, I accepted a full time position in Headquarters and worked for the Red Cross until 2008. From 2008 until 2012 I ran the global disaster response program of the Presbyterian Church (USA), Presbyterian Disaster Assistance. Both organizations do tremendous work around the world with people facing, responding to and recovering from disaster.

While I had maintained my membership in the Florida Bar throughout my work in humanitarian response and development, and I had remained aware of the issues that were being addressed in law, my career had focused on disaster preparedness, response and recovery. But, in 2008, a friend who is one of the pioneers of foreclosure defense introduced me to a new kind of horror. One where the human caused disaster was leaving families homeless, but with one very important difference to the disasters I had been responding to for 14 years, in this disaster there were very clear ways for the vulnerable families to fight back and, due to the nature of the practices that were making them vulnerable, in a significant number of cases they could actually win the fight, and not lose their home.

In this disaster, it is clearly the consequence of bad actions that is causing the vulnerability, and, when the laws are enforced, families can fight back, fight against the disaster, and actually avoid losing their homes altogether. While many people may still perceive foreclosure as similar to that of our grandparents’ day, many others now realize that contemporary foreclosure is often the result of failings, or outright fraudulent behavior, of the lenders and the industry, these are very different circumstances from the foreclosures of the past.

These days homeowners facing the loss of their homes are often facing circumstances brought on by:

  • the collusion of the lending industry creating vastly inflated and false values of their homes to inflate the size of the loans to increase their percentages on transferring the loans, or
  • facing bait and switch tactics that forced them at closing to accept interest-only high interest loans (with monstrous balloons five or ten years out) rather than the reasonably priced fixed rate loans they had been told they were approved for, or
  • facing monthly payments at rates exploded beyond their capacity to pay as a result of unnecessary forced place insurance or insurance that costs multiples of what it should cost in a fair market, or
  • facing foreclosure rather than a loan modified to reasonable rates they were promised if they “fall behind in payments for three months…”, or
  • facing foreclosure with no notice or communication from the lender that there is a problem and alerting the borrowers to the possibility of foreclosure, or
  • facing foreclosure when the mortgage changes hands and the servicers fail to notify the borrower of that change.

Circumstances that can be defended against in court. Unlike hurricanes, tornados, floods, and even armed conflict, in this disaster, there are ways to defend your home against these circumstances, and avoid losing the home. There are defenses and strategies that can be employed to attempt to overcome each of these circumstances. Defenses that are not as readily evident in other kinds of disasters.

These days Plaintiffs are suing homeowners without having the right to sue at all, actually not owning the debt or having the right to foreclose. These days Plaintiffs have admitted to falsifying affidavits and falsely notarizing documents in order to mislead Courts to let them foreclose when they didn’t have the legal or ethical right to do so. These days Plaintiffs are presenting witnesses to Courts attempting to validate exhibits that that they have no basis to validate, misrepresenting to the Courts the means and methods of verifying the documents they are using to “prove” their right to foreclose. These days there are any number of ways that Plaintiffs have subverted the housing markets and the Courts to profit from trading mortgages and notes and, ultimately foreclosing.

If we are successful in raising the issues present in each specific case to the attention of the presiding Judge, these days, in this disaster, we can stop the Plaintiff from taking the home, we can fight against rising tide of this disaster. There are no guarantees, but at least there are options that are missing in many other disasters.

In some cases the Judges are still of the mindset that the defendant in foreclosure only has one defense, that is if the defendant can prove payments to the Plaintiff, that there was, in fact, no default at all. But alternatively, many Judges seem to be aware of the many other ways that Plaintiffs are wrongly suing to foreclose and are increasingly aware of the fault of the Plaintiffs and the means they are employing to wrongly attempt to take homes. In those courts, there is a real possibility to defend against foreclosure and prevail.

In 2012 I returned to actively practicing law. Working with my friend I was able to join the families and fight back against the disaster, to help families facing the terrible stress of being sued by parties who claimed they had the right to take the families’ homes away. It is always stressful facing the possibility of losing and losing the home, but, it is a remarkable feeling to prevail and know that for that family, you have actually assisted in preventing a horrendous family disaster.

In due course, I became the senior trial attorney at my friend’s firm. I have had the opportunity to try cases across the state. I have come to know many of the attorneys and judges from Tallahassee to Key West and on both sides of the state. It has been my privilege to assist families facing foreclosure and, in many cases join them in celebrating as the Plaintiff dismissed the foreclosure against them or the Judge ruled in their favor. Of course, I have also had the sobering experience of watching as a court ruled in favor of the Plaintiff, knowing full well the Plaintiff should not have prevailed. That is the reality of foreclosure following the collapse of the 2008 real estate bubble.

Now I am gratified to assist homeowners and to bring my experience and commitment to help homeowners fight against the potential of losing their homes. I have now opened my own firm, I still try cases across the state, in fact I focus my practice on trial, but, I take responsibility for my cases from when my clients sign up with the firm through the case. I have clients on both sides of the state with cases from the Keys to Central Florida.

My new firm, the Law Offices of James R. Ackley, P.A., has adopted the Oak tree as our totem, or brand. My family name, “Ackley” means something along the lines of “Keeper of the Oak Meadow.” With that in mind, we have adopted the Oak to represent the strength and durability in the face of the disaster facing our clients. A strong, secure, sanctuary and symbol for my clients. we strive to internalize those characteristics in our practice. It is our focus to bring professional, ethical and zealous representation on behalf of our clients, and to stand through the onslaught of the parties seeking to take our clients’ homes and resources.

In this disaster, there is a definite path to prevent the loss of families’ homes, that path is to fight, to force the Plaintiffs to prove if they have any rights at all, and, wherever possible, to prevent them from taking the homes of our clients. We are working to bring the skills and experience garnered to the front on behalf of each client we represent. In this disaster, we are not helpless to prevent the loss of property, in this disaster we are able to fight back and prevent the consequences of foreclosure, maybe not in every case, but, certainly with a significant level of success.

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If you are in Florida and are looking for help with your foreclosure, especially your foreclosure trial, call us at 561-594-5671 for a FREE CONSULTATION. Let the lawyers and staff at The Law Offices James R. Ackley, P.A. serve you!

Rescission is One Strategy — But Don’t Abandon Your Other Defenses

Just a short notice to everyone who has been following my blog. I may have over-emphasized Rescission as a strategy to the point where people are getting the impression that they don’t need to raise traditional defenses of standing, ownership, rights to enforce, authority, balance compliance with the contract in issuing notice of default etc.

Rescission is only one of the strategies to be employed in the right circumstances. We analyze the entire case and search for discrepancies, inconsistencies, lack of standing and many other defenses that have been successfully employed by us and others in foreclosure defense work.

The reason I am writing this is that in the last couple of weeks people have been calling saying that they have gotten nowhere with the traditional defenses and now want to try rescission. The problem is that most of those are coming after a final judgment of foreclosure and even after sale — at which point there is no loan contract to cancel and no note to render void.

The other problem that I have tried to emphasize is that rescission, especially if it is recorded, WILL result in further litigation that in most cases will require an appeal to have a likelihood of success. As simple as it is in the statute and in what the Supreme Court said, the banks are trying every angle to escape from it except compliance with 15 USC §1635.

So whether you are coming to us or going to any other law firm or forensic people, you need a thorough analysis of everything that happened with your alleged loan and a careful examination of the pleadings if you are already in court. We readily understand the reluctance to spend more money on what has been a frustrating experience, but the ONLY way you can select a strategy that will or might get traction is by having an experienced eye do a thorough review and report.

There is no magic bullet here. The attitude of the courts are changing but the deck is still stacked against the borrowers. The borrowers who are winning their cases are doing so because their attorney has carefully analyzed every piece of paper and selected not a shotgun but a rifle with a handful of bullets on which he or she will seek to focus the court’s attention.

Since 2006 I have maintained that TILA Rescission is the great leveler. But it means nothing if courts won’t apply it. The trial courts are clearly dodging and weaving around rescission. So if you are using this strategy, you can expect litigation on alternative theories in many cases, to wit: either the loan contract was never consummated or it was canceled by rescission. Either way the mortgage is gone — but not until you can get a judge to say that. Relying solely upon rescission without aggressively defending the foreclosure is fighting with one arm tied around your back.

Get an analysis from someone who understands what they are looking at. And if your lawyer chooses not to use rescission he or she is only looking out for your best interests since the litigation over TILA rescission can be expensive and lengthy. It doesn’t matter if I am right about it. What matters is what can work.

As I said yesterday despite a clear announcement from the Supreme Court bank lawyers and trial judges are nevertheless litigating the same issues as though the statute, the regulations and the Supreme Court are irrelevant.

We have seen hundreds of thousands of rescissions over the years and most of them did in fact cancel the loan contract and void the note and mortgage, as a matter of law.

Thousands of judges on the trial bench and the appellate bench got it totally wrong. Apparently they are still rebelling and seeking to get it wrong again. In effect these courts are over-ruling the Supreme Court of the United States which is impossible under our constitution. Right or wrong, that means that extra effort must be put into more traditional defenses, which are in fact getting increasing traction.

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For a description of our services  click here: https://wordpress.com/post/livinglies.wordpress.com/32498
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Hurry! Small Group Consultation on Friday is almost Full!

If you are interested in participating in the Small Group Consultation- there are only 4 remaining spots left. The Small Group Consultation (by phone) is scheduled for Friday April 29th at 3:00 EST.    You may self-schedule and make payment at: https://www.vcita.com/v/lendinglies

_______________________________________________________________________

ANNOUNCING OUR NEW SMALL GROUP CONSULTATION!

The first LendingLies’ Small Group Consultation is

scheduled for:  April 29th, 2016 at 3:00 p.m. EST. 

         CAN YOU AFFORD TO MISS THE OPPORTUNITY

TO SPEAK TO NEIL GARFIELD?

Neil Garfield recognizes that not everyone has the financial means to pay for a full consultation regarding their specific issue.  In response, Neil will be hosting bi-monthly Small Group Discussions so that each participant has the opportunity to ask Neil several pressing questions they may need help with.

The Small Group Consultations will be for 90-minutes in duration and cost only $99.00!  The sessions are limited to only 10 people per session.

Although Neil will not be able to answer all of your questions, he will be able to address several questions that will enable you to make decisions regarding your particular issue.  Each participant will be limited to 2 or 3 questions- and our hope is that by listening to the questions of other participants that you will have some of your own questions answered!  Neil will not be providing legal advice but guidance.  His background in foreclosure allows him to target issues that other less experienced attorneys often fail to catch.

Questions may include:

  1. I have a judgement in favor of the bank, what is my next step?
  2. How do I enforce a rescission?
  3. How do I record my rescission?
  4. I  need to file bankruptcy- how will this help me to stop foreclosure?
  5. I just found falsified documents- what do I do?

You waive your right to confidentiality while speaking within the group, but only first names will be used on the call.

In order to sign up for the Small Group Discussion, please self-schedule at:

https://www.vcita.com/v/lendinglies

Scroll to the very bottom of the menu and you will see the Small Group Discussion option to self-register.

We ask that you pay at the same time you register for the Small Group Discussion.

Once registered, you will receive an email so you may respond with your questions for Neil Garfield.

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