TONIGHT! How to distinguish between legal presumptions of facts and the facts themselves

A client of our internet services store asked a simple question. He had asked the opposing side if they were a holder in due course. What he received was evasive and misleading and essentially never answered the question. Now what? Below is my answer to his question and what we will be discussing tonight on the The Neil Garfield Show

How the banks confuse judges, foreclosure defense lawyers and homeowners by wrongfully inoking legal presumptions.

Thursdays LIVE! Click in to the The Neil Garfield Show

Or call in at (347) 850-1260, 6pm Eastern Thursdays

 

You have already achieved the intermediate goal. At this point you can argue that you asked for the identity of the holder in due course and they were unable or unwilling to provide the information. The confusion emanates from the fact that a holder can sue on the note if it has the right to enforce the note, which right must come from the creditor.
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But the apparent rebuttable legal presumptions run against you. In every case the success of the foreclosure is entirely dependent upon the success of the foreclosure mill attorneys in invoking legal presumptions of fact because the actual facts differ from what is presumed by the Judge.
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But the one legal presumption that would wipe out virtually all borrower defenses is NEVER invoked — the status of holder in due course. Because that would mean proving that a purchase of the debt, note and mortgage occurred in which the foreclosing party is or was the purchaser in good faith and without knowledge of the borrower’s defenses. Instead the crafty lawyers get judges to presume that the foreclosing party should be treated as a holder in due course, thereby evading their true burden of proof.
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It’s no mystery why they don’t use the holder in due course allegation. But the absence of such an allegation simply and logically leads to a conclusion. One or more of the elements is missing. Which part? Is it the purchase, the good faith or knowledge?

Making Objections and Opposing Them

A new publication has come to my attention that every trial lawyer should have, regardless of where they practice. It’s entitled NEW YORK OBJECTIONS. Obviously once you latch on to a point you would need to refer to the laws of evidence in your state or the laws of evidence in Federal proceedings or both. But because of constitutional protections all states must and do subscribe to the same rules of evidence with very few variations. The link is to an article/advertisement for the book. From there you can go buy it. I’m not selling it. I am recommending it.

If you are like most lawyers and pro se litigants you will need help in how to use your new found knowledge of objections and cross examination (there are separate books on cross examination).

Trial law is all about evidence. And evidence is all about the rules under which information or data can be accepted into evidence. Evidence is an asserted fact that can be considered by the trier of fact in making a final determination as to who wins and who loses. The amount of weight given to any evidence is entirely up to the trier of fact. Getting evidence into the record does not mean you won anything.

The trial court has maximum discretion on what evidence carries greater weight than other evidence admitted into the record. Decisions are reversed on appeal in only 15% of the filed appeals. The job of the appellate court is to determine whether there is any evidence that could support the Judge’s decision in the trial. The appellate court might tacitly agree with you that had they been trying the case it would have been decided differently. But that is not the standard. And THAT is why doing well at the trial level is the key to all cases.

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

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. The TEAR 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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All information proffered as evidence, whether in testimony or documents, must have foundation. Foundation is credible information supporting the existence of an asserted fact. So for example if the question is “what is the amount presently due?” then in the absence of foundation, the answer is not admissible. However, if the objection is not made timely then the objection is waived. A late objection without some realistic explanation as to why it is late, will fail to keep the information out of evidence AND it will drill home the fact being asserted by mentioning it for a second time. Before asking a question like that the lawyer proffering the witness must establish that the witness knows through personal knowledge of facts showing that he/she knows the answer and not because someone else told him/her.

There are many other objections about which I have written on this blog. The most common error by lawyers representing homeowners is their failure to object as soon as the question is asked. And the most common excuse for that is that they don’t want to irritate the judge or look  foolish. You might just as well concede the entire case if you feel that way. At my age, it’s like doing squats at the gym. If your legs get tired after jumping up to object so often, then you may be doing the right thing. My legs often hurt and I have been known to seek permission of the court to remain seated for my objections.

Raising objections is more of an art rather than any objective set of rules. Preparation for trial means figuring out what objections you will raise and why. It’s easy for a judge to overrule your hearsay or foundation objection if you either don’t know what you are talking about or if you haven’t thought this out. The general practice is to rise and say “objection!” at the same time, the moment you figure out that the question is objectionable — which needs to be before the witness speaks. I like to do that adding”may I explain?” At that point I better have something thought out before trial as to why I raised an objection.

So in order to go to trial and be effective as defense counsel for a homeowner, you need to have a clear narrative in your head as to what you believe to be true and tailor your objections to that narrative. And your narrative needs to be extremely focused on the few paths that might provide traction for the defense. Shotgun trial objections almost always fail.

Timeliness is the principal reason why objections are overruled. Lawyers and pro se litigants will wait patiently, politely for the line of questioning to be concluded. That is when virtually every objection you could ever think of will be overruled.

Be careful about trial orders. I have seen judges repeatedly overrule any objections to admission into evidence simply because the objections were not preserved in accordance with the trial order. That doesn’t mean you lost the case; because on cross examination you can destroy the credibility of the witness and the evidence by showing a lack of foundation, even though you were not permitted to raise the objection. If something is admitted into evidence, that doesn’t mean you can’t attack it.

In foreclosure litigation cases, cross examination is all about foundation. Cross examination continues the narrative driving your objections. Each objection, each question should drive home the central points of your defense strategy.

Lawsuit in Virgin Islands (U.S. Territory) Exposes the Underbelly of Forced Foreclosures that Harmed Investors and Borrowers

I almost stopped reading this lawsuit because I thought they were casting Ocwen and Altisource as victims. And to a limited extent that is true. But upon close reading this lawsuit is about what the investors lost to the unrelenting full court press to foreclose at the expense of investors and obvious huge harm to homeowners who were ready willing and able to pay for modified loans.

The culprits, according to the lawsuit, were Blackrock and PIMCO.

“This case is about a covert criminal conspiracy perpetrated by two of the largest, most powerful financial firms in the world known as “Blackrock” and “PIMCO” (“Defendants”, as further defined below) – with the specific intent and purpose of gouging enormous profits from the forced foreclosures and confiscation of the homes of hundreds of thousands of struggling families all across the United States”

Let us help you plan and draft your foreclosure defense strategy, discovery requests and defense narrative: 202-838-6345. Ask for a Consult

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. The TEAR 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 EX OCWEN CEO SUES OCWEN ALLEGES FORCED FORECLOSURES

Perhaps the most interesting allegation is as follows:

Defendants relentlessly sought to discredit, undermine and ultimately destroy those companies so that Ocwen would be cast aside and replaced with mortgage servicers that were unwilling or unable to perform loan modifications but instead would immediately execute foreclosures as Defendants wanted. This strategy financially benefited Defendants, who positioned themselves first in line to receive the proceeds when homes were sold in foreclosure, while seriously damaging other MBS investors, who stood to suffer greater losses than they would have if the loans were modified. Defendants were well aware that their ruthless strategy was contrary to the laws, regulations and policy of the United States, well-established industry standards and contractual obligations explicitly provided for in the governing MBS and mortgage servicing documents.

So this suit seems to be on behalf of investors. They have awakened to find that the homes were sold in foreclosure and that the intermediaries collected the proceeds. And they find that that the applications for modification were blocked, just as many of us have said, by parties who were pulling the strings. The factual basis for the suit is the proposition that homeowners could have paid a modified mortgage that would have resulted in far fewer losses to investors — something that everyone seems to know except the courts the legislatures and the executive branches of government.

Ocwen USVI and Altisource USVI are cast as victims but not Plaintiffs. The Plaintiffs are companies that you most likely never heard about. They were investors not just in RMBS Certificates but in OCwen USVI and Altisource USVI whom they say were nearly put out of business by egregious greed and overreaching by giants managing more assets than the full budget of the United States government.

If we believe the allegations, Ocwen VI and ALtisource VI were all about legally managing the loans that were being serviced and embarked upon an ambitious program to get as many of the loans modified, where they would remain in the performing category.  But Blackrock and PIMCO wanted foreclosures instead of modifications. As was said in a BofA office in Massachusetts some years back by a manager of the “servicing” department — “we are not in the modification business, we are in the foreclosure business.”

There are several reason why foreclosures are the goal, even if it destroys investors and homeowners alike.

  1. A foreclosure sale conducted by the correct people raises the almost unrebuttable presumption that everything that preceded the foreclosure was legal, having been reviewed by a judge and approved. This is essential to keeping up the pretense that the RMBS certificates actually derived their value from the loans when in fact the situation was quite the reverse.
  2. Maintaining the illusion of value for RMBS enables the “trading” market to continue where the real players are dumping all of the paper they acquired with OPM (other people’s money) and issuing ever climbing levels of synthetic derivatives supposedly deriving their value from “underlying” loans.
  3. Maintaining the illusion of REMIC Trusts that properly issued RMBS certificates deflects from the fact that the only thing the investor received was am IOU certificate from an entity that (a) did not legally exist and (b) owned no loans; hecen there were no loans “underlying” or anywhere else. By using the illusion the intermediaries received all the profit from “trading” with assets that were supposed to be in a trust, but which were never purchased by the trust. Hecne the money that was made was never applied to investor accounts because on paper it was neither the trusts nor the investors who owned the loans and the RMBS certificates held in “street name.”
  4. Maintaining the illusion enabled the intermediaries to report that investors had lost money and the borrowers lost their homes without anyone being the wiser because that is what happens when you have a foreclosure. It all made sense except that the reality was quite the reverse — the intermediaries owed their profits to the investors less fees. With the foreclosure it doesn’t appear that the investors are entitled to anything other than the ent proceeds of sale. But the reality is that the investors were not entitled to any proceeds of a foreclosure sale but were entitled to the windfall “profits” created by the intermediaries trading on what should have been in the investors accounts but wasn’t because the appearance of a certificate being mortgage-backed is sufficient to escape regulation.
  5. In many cases the entire proceeds were collected straight off the top of the foreclosure sale in the category of “servicer advances.” Servicer advances were nonexistent. First, the certificate holders were not ever receiving mortgage payments; they were receiving unsecured bond payments made by third parties on behalf of the illusion of the trust. Hence since mortgage payments were not going to the trust and since the investor payments were not made by the trust, no advances were required nor paid by third parties, who were propping up an enormous PONZI scheme. Instead a book entry was made off the record as though a servicer was making payments on behalf of a homeowner who was not paying on the loan. It’s true that investors kept getting payments for a time even when the income from a purported pool of loans was insufficient, but not because the servicer was paying them as advances. When the property is sold, all or most of the proceeds goes to the servicer as a credit against nonexistent advances. The real party in interest in such circumstances is the servicer claiming recovery of servicer advances that accrue only when the property is liquidated. This leaves the investor with no business reason to foreclose since there is no injury — either way it is going to be a loss for the investor but one that won’t be revealed until far down the road. But the investor’s loss comes not from the loss of the mortgage loan, but from the loss on the certificates issued by the nonexistent trust. In all events title to the property or the proceeds of sale does not go to the investors in RMBS or the investment vehicle REMIC Trust. The reality is far down the road (at least another 10 years) when the losses catch up with investors who thought their investments were relatively safe with the risk strictly controlled.

 

Hacking Update

Several readers have asked for identification of the people who are responsible for the hacking and the question arose as to whether there were other activities by them that people should know about.

All the current evidence points to Tama a/k/a “TL” Anderson as the primary person who appears to have directly committed the hacks. She also, of late, has gone by the name “TL McKinstry.” Her husband may or may not be estranged from her. She said they were estranged. I don’t want to give his name unless we have additional evidence that he was acting in concert with Tama, or “TL” as everyone knew her. He has a sensitive job at a security firm and I suspect that he didn’t actively assist or conspire with Tama. In fact, I’m not yet convinced he knows anything about her activities.

Our two main websites are http://www.livinglies.wordpress.com and http://www.lendinglies.com. But “TL” has invented email addresses that appear to be email accounts on the LendingLies website. Those email addresses are not real, but they are used as a logon to accounts and data that are the property of GTC Honors, Inc., who owns the lendinglies and livinglies websites.  It seems likely that many people will receive correspondence or solicitation from websites with a similar sounding name to ours. If it has the word LIES in it and it isn’t LendingLies or LivingLies, then it isn’t from us and is probably a newly minted or newly used website.

So the real test of whether an email is genuine or spam created by her is simply to see what she says. If it says Neil Garfield or any other lawyer is under investigation or that we are terrible people, thieves or whatever, that is from Tama/TL. She is angry with me personally because a long time after we concluded a legal matter for her and her husband, she suddenly demanded a refund. The file was closed a year and a half before her surprise demand. After reviewing time, billing and the files, I refused to issue any refund as did the other attorney involved. She also thinks I “betrayed” her in some way. I have no knowledge as to what that relates to.

She has also hacked in and downloaded a number of files from our ftp site. We are investigating that but it doesn’t seem that she got anything that would pose a threat or problem. But some of the files were technically privileged, proprietary or private. We will advise you accordingly. At this moment she seems to have downloaded mostly articles, book contents and public records documents.

At this point we will notify law enforcement and the Florida Bar to get guidance on our next steps.

Please address any inquiries about this incident to neilfgarfield@hotmail.com.

Congress Wakes Up to Continuing Lies from Major Banks

The takeaway from this is that when Wells Fargo lies it is telling a whopper. The same is true for Chase, Citi and Bank of America. They tell lies that lead to ruin of working American families and they don’t care. Their only concern is protecting the fraudulent scheme that brought trillions of dollars in illicit revenue to them and then paying a “cost of doing business” fine or settlement that is literally a few cents on the dollars.

Let us help you plan your foreclosure defense strategy, discovery requests and defense narrative: 202-838-6345. Ask for a Consult

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. The TEAR 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 Wells Fargo Lies Wake Up Democrats

The latest in along chain of Wells Fargo scandals the recent admission by the bank that it “accidentally” foreclosed on hundreds (more likely thousands) of homes destroying the financial future of borrowers, in many cases leading to divorce, disease and death. And now WFB thinks it can escape by paying the foreclosed families $12,800 (down from $20,000 previously reported). Senator  Elizabeth Warren literally want the head of Wells Fargo — to resign. Congressman Schatz didn’t go that far but is asking some real questions.

The link to the above article provides a glimpse through the eyes of Brian Schatz, D-Hawaii, of what questions to ask, some of which can be borrowed to apply to discovery when defending foreclosures now, particularly those involving Wells Fargo Bank.

In his letter, Schatz said that he hopes that regulators take action against Wells Fargo over the issue, but Schatz also laid out the following lengthy list of questions for Wells Fargo and said that he expects answers by the end of the month:

  • When was the error in Wells Fargo’s HAMP underwriting tool first discovered? What actions did Wells Fargo take when the error was first discovered? At that time, did Wells Fargo examine whether the error impacted any customers?
  • What led Wells Fargo to examine the impact of the error on consumers who applied for a loan modification? When did that examination begin and end? When will Wells Fargo know the total number of impacted consumers, if the company does not yet know?
  • Have the impacted customers been notified that they were harmed by Wells Fargo’s error? If so, through what medium? Can you confirm that they received this notification? If not, what steps will Wells Fargo take to ensure that impacted customers are aware that they were harmed?
  • Has Wells Fargo notified impacted customers of the funds available to remediate the harm that they suffered? If so, through what medium? What will customers need to do to receive compensation?
  • What methodology did Wells Fargo use to determine that $8 million should be accrued for remedying customers for the harms that resulted from this error?
  • Please provide details on the specific types of harm that Wells Fargo plans to remediate for the impacted customers, and how Wells Fargo plans to make those determinations.
  • What terms will Wells Fargo require impacted customers to agree to as a condition of accepting remediation from Wells Fargo? Will Wells Fargo ask an impacted customer to waive any legal rights?
  • Through HAMP, the Treasury Department provided financial incentives to participating institutions who modified eligible troubled borrowers’ mortgages. Did Wells Fargo receive any incentives for the customers who were impacted by the underwriting tool error? If so, has Wells Fargo returned those financial incentives to the Treasury?
  • Did Wells Fargo report the foreclosures or any missed payments that could be directly or indirectly related to Wells Fargo’s errors to credit reporting agencies? If so, will Wells Fargo commit to working with the credit reporting agencies to remove these entries from borrowers’ credit reports?
  • Please provide information about the disposition of impacted customers’ foreclosed properties. Did Wells Fargo sell these properties? Does Wells Fargo plan to reconnect families to their homes?
  • In the same quarterly report, Wells Fargo announced an increase in its common stock dividend of 10% and a plan to buy back $24.5 billion of stock. Please explain how the company made the decision to use these funds for shareholder returns ahead of other uses, such as increasing consumer remedies or investing in improving internal investigations and controls. How much is Wells Fargo currently investing or planning to invest in improving internal controls and consumer protection?
  • At this moment, can Wells Fargo say with confidence that it has identified and disclosed all incidents of consumer harm across all of its business units? If not, why not?
  • Should we conclude from the steady stream of news of consumer harm at Wells Fargo that the bank is too big to have meaningful internal controls or policies to prevent violations of law and consumer abuses?

NOTICE OF EMAIL HACKING

It has been brought to my attention that a mass email has been sent using private and proprietary email addresses owned by myself, LivingLies and related entities. The illegal act is part of an overall scheme making false accusations against myself, LivingLies, and another attorney. The offending email is from a volunteer for LivingLies who had access up until early this year.  During that time she apparently gained access and downloaded lists of email addresses from several different personal and proprietary email accounts; she is now using it to promote her own site, by making disparaging, false and misleading accusations obviously for her own profit.

The obvious intent shown in the offending email is to cause harm and to extort a nuisance settlement. The email accounts that were hacked are now either closed or protected by highly secured means.

A letter has been sent to her demanding retraction and making demands that she and her husband cease and desist from making such defamatory accusations. Investigators are now determining where she and her husband can be served with a complaint for injunction and damages. NOTE: She may also have some phone numbers in which she is making or accepting calls in which she is most likely continuing her scheme by making libelous statements.

Our apologies for this breach of our data.

Should anyone wish to write to us about this breach please send an email to neilfgarfield@hotmail.com.

 

 

 

TONIGHT! Unclean Hands: Dirty tactics by Wells Fargo and others coming back to haunt them? — Neil Garfield Show!!

When the other side is playing hardball with dirty tricks, perjury and fraud, what do you do?

Thursdays LIVE! Click in to the The Neil Garfield Show

Or call in at (347) 850-1260, 6pm Eastern Thursdays

Want to win? Pay attention!

In the December 2017 Florida judicial foreclosure case of Wells Fargo Bank v. Riley, Court holds after trial that Defendant homeowner prevails and keeps his home due to three legal theories, the first and paramount one that the Plaintiff Wells Fargo on behalf of a Chase Trust, had unclean hands for through a key witness dissembling at trial (and failing to prove) that the ‘Chase Trust’ had possession of the original Mortgage Loan Schedule (MLS) at issue in the case.

As the opinion after trial noted, “even if Plaintiff had standing to foreclose (a meritorious claim), Plaintiff would be denied the equitable relief of foreclosure upon a finding that Plaintiff took action in pursuing this foreclosure that reasonable and honest men would condemn.”

Now to see this principle of unclean hands applied in California and other non-judicial case lawsuits on behalf of homeowner Plaintiffs….

Spoiler alert: There is no Mortgage Loan Schedule except when it needs to be fabricated. If it were otherwise the banks wouldn’t be able to trade loans and derivatives in their own names, thus depriving investors of profits that are rightfully theirs.

My own take is that dirty hands only comes out for real at trial. Therefore it is up to the homeowner’s attorney to eviscerate the robowitness who knows nothing except what was on the script he/she memorized. Key words: Timely objections and Cross examination. If you don’t know how to do that, stay out of the courtroom.

Join attorney Charles Marshall and investigator Bill Paatalo, each of whom has examined these issued closely. PERSISTENCE COUNTS!

see Wells Fargo admits to falsely foreclosing on hundreds!

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