Business records from Prior Servicer Admissible BUT….


In an article the banks are celebrating a success for their shell game or “musical chairs”(see above link). The appellate court reversed the trial court who through out the business records of the prior servicer.

BUT, the court pointed out that the robo-witness was also employed by the prior servicer and could therefore speak from personal knowledge about record keeping of the prior servicer. This doesn’t happen very often. SO when the foreclosing party tries to bring in the prior records the point needs to be made that the records are not admissible and the case is not authoritative IF the robo-witness was never employed by the prior servicer.

The conclusion from this decision is actually good for borrowers. The whole purpose of slipping in a new servicer, trustee or agent is to put layers in to protect the real parties from liability for wrongful foreclosures.I think the decision means that the testimony from a representative of the prior servicer IS required if the main witness from the “current servicer” did not work for the prior servicer.

As a practice note for lawyers, you should not be lured into this argument as the beginning and end of the issue. The main issue remains — did the prior servicer or the Plaintiff for that matter, ever have any authority to act as servicer and if so, from whom? That issue comes back to standing — i.e., whether the Trust that is asserted as owning the loan ever purchased the loan and if not, then the Trust is representing the interests of a creditor other than the trust. If so, who is that?

And that returns us to the issue of possessor, holder and holder in due course. If they are not willing to assert that the Trust purchased the loan (which may be inferred by failing to allege holder in due course status) then they are admitting in their pleading that the trust does not own the loan which is conflict with their position in judicial foreclosures that the trust owns the loan, note or mortgage.

Fl 2d DCA Says No to Musical Chairs

For more information please call 954-495-9867 or 520-405-1688.

This is for general information only. Get a lawyer.


see 2D14-1137-1

The game has been obvious to everyone. Until recently, it seemed that the courts considered it irrelevant. But decisions over the last couple of years have shown that the courts are increasingly disturbed by the”musical chairs” game being played by the banks. Why are they doing this? Why do we have changing trustees, changing plaintiffs, changing servicers? IN private many judges and even Chief Judges have said to me that this is the most disturbing part of the whole foreclosure mess. They understand that this is probably an attempt to avoid detection. They want to know what the banks are hiding.

The second DCA in Florida recently ruled on the issue reversing the trial court who chose to ignore the basic principle underlying lawsuits, assignments and any other kind of legal action — you can’t assert rights that the original party did not have. If the Assignor had nothing, then you have nothing. No more and no less. If the Trustee is a the Trustee of an empty trust, then the trustee has nothing. If the servicer claims to have powers derived from the empty trust then it has nothing. And now if the original Plaintiff in an action had nothing, then the new Plaintiff also has nothing. Nothing plus nothing equals nothing.

Another interesting aspect to the opinion is that the burden shifts to the foreclosing party if the homeowner asserts a lack of standing as a defense. It isn’t up to the homeowner to prove that — it is up to the foreclosing party to prove its right to be in court or to otherwise initiate foreclosure.

Where, as here, the defendant asserts a lack of standing as a defense to foreclosure, it is incumbent upon the plaintiff to prove its standing at trial. Gonzalez v. Deutsche Bank Nat’l Trust Co., 95 So. 3d 251, 253-54 (Fla. 2d DCA 2012). This requires the plaintiff to show that it is the “holder” of the note or a person acting on behalf of the holder. Mortg. Elec. Regis. Sys., Inc. v. Azize, 965 So. 2d 151, 153 (Fla. 2d DCA 2007). If the plaintiff is not the original lender, it may establish its standing as a holder “by submitting a note with a blank or special endorsement, an assignment of the note, or [with a sworn statement] otherwise proving the plaintiff’s status as the holder of the note.” Focht v. Wells Fargo Bank, N.A., 124 So. 3d 308, 310 (Fla. 2d DCA 2013) (citing McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So. 3d 170, 173 (Fla. 4th DCA 2012)). A plaintiff that is not a holder, such as a mortgage servicer, can establish standing through proof that it is authorized to enforce the note on behalf of the holder. Russell v. Aurora Loan Servs., LLC, 163 So. 3d 639, 642-43 (Fla. 2d DCA 2015).

It does appear that the courts are getting less concerned with a “free house” (a myth) and more concerned with the truth.

$5.4 Million!: Jury Finds Wells Fargo Committed Fraud When It Used Robo-Signed Document

Congratulations to the experts and attorneys on this. As Marie McDonnell states in the article reproduced below this case is important because it is the first time that Robo-signing has resulted in an award of damages for fraud. I would add that the lawyers must have done a fine job at trial — because ordinarily we don’t see jury instructions that would support punitive damages for robo-signing. The pages are turning on a new chapter.

As for the rest, I’ll let Marie speak for herself ———-

H/T Marie McDonnell

Below, I have attached the jury award from the Wolf v. Wells Fargo trial. The jury concluded its deliberations on Tuesday afternoon, November 10th.
It is my belief that this is the first jury verdict of its kind where the jury was asked to determine whether a robo-signed Transfer of Lien (assignment of mortgage) was fraudulent, and on that basis, award damages.
The jury awarded the Wolfs $190,000 in actual and emotional distress damages; $190,000 in attorneys’ fees — which is sufficient to take them through an appeal all the way up to the Texas Supreme Court; and $5 million in punitive damages to be paid equally by Wells Fargo and Carrington.
Plaintiffs David and Mary Ellen Wolf testified on their own behalf, and I testified as their expert.
I explained to the jury the sequence of “true sales” that were necessary to properly securitize the Wolfs’ mortgage loan using my “Securitization Flow Chart” which I have attached below.
Once the jury understood the requirements of the Mortgage Loan Purchase Agreement and the Pooling and Servicing Agreement, they were able to see why the Transfer of Lien executed by Tom Croft was fraudulent on the face of the document.
The Defendants called robo-signer Tom Croft and Clayton Gordon as witnesses, both of whom are employed by Carrington Mortgage Services, LLC.
The jury also found that even though Wells Fargo Bank was in physical possession of the original note, it did not own the mortgage loan because it was never securitized into the Carrington Mortgage Loan Trust, Series 2006-NC3 over which Wells Fargo serves as Trustee.
The jury verdict, and especially their finding that the Transfer of Lien was fraudulent, supports my findings in all of the registry of deeds audits I have conducted for:
  • John L. O’Brien, Register of Deeds, Essex Southern District, MA
  • Nancy J. Becker, Recorder of Deeds, Montgomery County, PA
  • Seattle City Council, Seattle, WA
  • In re: Mortgage Electronic Registration Systems, Inc. Litigation, Maricopa, Pima, and Pinal Counties, AZ
The jury verdict in the Wolf v. Wells Fargo trial is epic. Among other things, it demonstrates that when given all the facts, average people can distinguish the difference between “deadbeat borrowers” and a family who fell upon hard times and always tried to do the right thing.
This case should send a message of hope for others; it also provides a road map for cutting through the complexities of modern finance to arrive at a just result.

DOJ Prosecuting INdividuals Who Contributed to Mortgage Crisis


While this is an interesting first step, the DOJ and the media are still overlooking the most basic fatal flaw in the sale of mortgage backed securities, to wit: the certificates were not mortgage-backed, and in fact were bogus certificates from a non-operating entity controlled by the Investment Bankers. It was the perfect crime — invent a company, do an IPO and keep the proceeds.

The Trusts were created on paper but never used, never funded, and never did any business. In fact they never had a bank account. The certificates were sold as securities and were not protected by exemption because while they claimed to be mortgage-backed, they were not.

So the issue of the bad loans that were being hyped by the “ladders” of conduits and sham entities is the second point, not the first. The DOJ needs to do what people in litigation have been unable to accomplish — investigate the money trail and arrive at the same conclusion I did — that the money never flowed through or for the Trusts.

The entire securitization scheme was a scam. The money trail will show money flowing from the investors to the investment banks to various conduits and sham entities. It will also show that some of the money was put into a large cesspool of of the proceeds of sale of the certificates from which the banks covered their tracks by making enough loans so that it would not be apparent that this process was for the banks — in a program that was adverse to the interests of the real parties without adequate disclosure. If DOJ wants convictions, they should get to the root of the matter and start at the beginning — not plunge into the middle of the scam and try to make sense of it.

And such an investigation would reveal that the certificate holders were left without any rights to the notes or mortgages despite assurances to the contrary. Once DOJ puts the pieces in place they will see that the securitization scam was in fact a PONZI scheme where the payments received by investors were taken from a pool of money that consisted of their own money.

Rescission and Wrongful Foreclosure Tonight on the Neil Garfield Show.

Click in to tune in at The Neil Garfield Show

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

More than 33,000 people listen to the Neil Garfield Show. Maybe you should too.

So those of you who have followed me since 2007 know that I have said two things repeatedly and that most of my esteemed colleagues said I was on the fringe of legal theory and basically not credible. The two things that I always harped on was that rescission levels the playing field and that there is a lot of money in bringing wrongful foreclosure actions. Lawyers have been missing the opportunity of a life time for over a decade.
Thousands of Judges in hundreds of thousands of decisions all refused relief to homeowners who were playing by the rules and found for the banks who never played by the rules and never intended to play by the rules. Another thing I always said was that all the cases involved the issue standing — having an injured party bringing the foreclosure process and that there were no parties with standing who were bringing the foreclosure hammer down on innocent homeowners to the detriment of innocent investors.
Despite all those decisions — the greater weight of decisions across the country, I read, reviewed and rejected all of the naysayers. I stuck to my guns despite having periods where I wondered if it mattered what I said. And now, after enduring 8 years of attacks, I feel like it was worth it because the tables are turning.
For our inspection are the Paatalo and Wolf cases respectively. In one case Paatalo, a private investigator and forensic analyst brought the issue of TILA rescission front and center. And in the Wolf case the court awarded over $5 million in damages, following another ruling in another state against Deutsch for foreclosing on a loan that did not exist. Yes that’s right, the homeowners had paid cash and never took out any loan. Deutsch not only brought the action they ignored service requirements and sold the property without any notice to the homeowners. Now Deutsch and Ocwen are paying them $2 million, a large part of which is punitive damages. Why? because it was no mistake.

Cesspools and Loan Pools: Ocwen Sells Servicer Advances for $600 Million

For further information please call 954-495-9867 or 520-405-1688

This is for general information only. Get a lawyer.


First of all let me thank all of you who wrote in sending me your prayers and best wishes. It worked. The surgery went fine and I recovering without complications.



Servicer advances are just one of dozens of fractures in the armor of the banks if anyone took them seriously. The very presence of servicer advances means that people are being added to the loan contract, if it ever existed, between the alleged borrower and the alleged lender (pretender lender). The simplest way to put it is that the banks are forcing borrowers to do business with people they don’t want to do business with. And THAT is the point and purpose of TILA.

Here’s why: The banks may not pick up one end of the stick without picking up the other end. Back in 2007-2009 the banks were saying there were no trusts. They are currently saying that either the Trust or the holders of trust certificates have rights against the borrower to collect and enforce the loan (and of course they dodge the issue of whether or not the loan was actually consummated by the originator who supposedly loaned money to the borrower.

The basis for the bank’s assertion is that the loan was transferred to the trust. Therefore the Trust, acting through the Trustee can collect or enforce the note signed by the “borrower.” And therefore, the trust provisions (i.e., the Pooling and Servicing Agreement —PSA) gives rights to servicers to collect on behalf of the Trust who owns the loan.

The problem with this has become evident to many people now, starting with my declaration in 2008 that the Trusts were created but none of them became active because they never received the money from the sale of their certificates. So the Trust didn’t acquire the loan even if there are dozens of documents that have been fabricated and forged to say that the transfer took place. Ask one question in discovery about the transaction in which the Trust allegedly acquired the loan and the bank stonewalls forever.

The rule of thumb is that for every monetary transaction there MUST be some paperwork that will prove it. And the corollary rule is that for every paper instrument offered to prove an actual transaction there must actually be a monetary transaction. Otherwise the paperwork is false or at best the paperwork is inconclusive and proves nothing. The banks have successfully finessed the fatal defect in their failed securitization plan: the money trail and the paper trial can never be reconciled because the money trail lacks the paperwork and the paper trail lacks the money.

The problem is compounded as to notice of default, notices of acceleration, the rare instances in which modifications are offered, and even end of month statements. Since the Trust never acquired the loan, any notice or statement or instrument sent on behalf of the Trust is a nullity — they don’t have the loan, and they had no right to collect anything and certainly no right to enforce the “loan” documents. Hence the paragraph 22 defense gets traction every time when presented properly — even if it needs to go to appeal in order to get that result.

The banks have been highly successful at blaming the victim for the banks’ own behavior. This is particularly evident when we look at the very long periods of time between the alleged “default” and the act taken by the bank to get the foreclosure judgment or ordering the Trustee on the Deed of Trust to sell the property (after s ending a self-serving notice of substitution of trustee where the false statement is made that it is being sent on behalf of XYZ, the beneficiary under the deed of trust).

The bottom line is that the false servicers are making money every day that the proceedings are delayed. And during the same period, the “creditors” if we can call them that, are the investors who are getting paid exactly as provided in the PSA. So a “servicer” declaring that a “loan” is in default is wrong on many levels: 

  1. The investors have been paid, so if the action is brought by a “trustee” on behalf of the trust or certificate holders, it is based upon a default that does no exist even under the scenario painted by the bank narrative.
  2. The declaration by the servicer is wrong because they have no right to do so even if there was a default.
  3. The declaration on behalf of the REMIC Trust or the certificate holders is wrong because the Trust never acquired the loan. Hence it could not have possibly suffered a a loss due to the “default” of the borrower — i.e., the failure to pay an entity that has no right to receive the payments.
  4. The declaration injures the investors by diminishing the value of the security, assuming that the investors are secured.
  5. The declaration ruins the credit rating of the borrower who has good reason not to pay an entity that has no right to collect or enforce the debt.
  6. The declaration adds insult to injury. After stealing the money from the investors, the investment banks proceeded to make certain that the investors had no right to know the status of any loan nor to assert any rights in connection with any loan.
  7. Th declaration adds further insult to injury when it produces fabricated self serving documentation showing the “holder” of the note and mortgage as persons or entities other than the investors without whose MONEY nothing could have or would have occurred.

Some of the delays in actually getting to the point where the property is scheduled for forced sale are as long as 10 years. The banks will tell you that the reason for the delays is the volume. That isn’t true. If they had a valid loan contract that was enforceable they would have included such contracts in the overwhelming majority of foreclosures where the homeowner offered no defense or resistance. Those go through at the rate of about 3 minutes per foreclosure.

The real reason is, as can now be expected at every turn, much more convoluted. In delaying the foreclosure forced sale, the banks are racking up fees for “servicing” a “nonperforming” loan. And of course the investors do not and cannot know the status of any loan. They do not know that the payments they have been receiving are balanced out at the other end of the stick by a declaration of default. Hence they assume  their bogus asset-backed securities have value when in fact they have no value.

As part of the “servicing,” the servicers are sending payments to the certificate holders day in and day out without regard to whether the borrower has paid or not. It is called various things in the PSA but they all mean the same thing — servicer advances, Advances by servicers, etc. And it is framed as a volunteer payment until such time that the bank decides, in its sole discretion, that it cannot recover the amounts being “advanced” by the “servicer.”

Note that as stated above, the “servicer” is not an authorized agent of anyone except the Trust which does not own the loan so the Trust is not the owner of the loan and the servicer is not the authorized entity to manage the loan — until they try to force a Power of Attorney into the court proceedings without notice to the homeowner’s attorney. Those are mostly cases they lose and the homeowner walks away with the “free house” that the banks have been propagating as a myth but still successfully. They are getting the judge to take his or her eyes off the ball as to WHO is seeking a “free house.”

Since neither the Trust nor the servicer has any right to be collecting or enforcing the loan, the facts point to the Servicer as the real party in interest who is attempting to use the court system (successfully I might add) to steal the loan, steal the property and run off with the money and the free house. Sanctions should apply. Instead, they are awarded the foreclosure and they attack the proceeds of the foreclosure sale like sharks, now that the loan, its collection and enforcement have been rubber stamped by a Judge in a court order that is effective by operation of law.

Foreclosure ties the knot such that procedurally it is very difficult for the homeowner to get discovery or to investigate the facts before trial; and when the the judgment or sale is transferred post judgment to some other party that never had anything to do with the loan the homeowner either doesn’t know what to do with that nor how to get into court for a hearing on the real amount required for redemption. And of course the investors are not advised at all or if they eventually get notice it is long after the shark feeding frenzy is over.

As part of the “servicing” the “servicer” makes those advance payments to the certificate holders without any right of action to collect back the money from the certificate holders should they receive the money they were promised in the PSA, which is inoperative because the money was never put into the trust and the trust does not even have a bank account.

In Court the servicer says nothing about the servicer advances and when the subject is broached by the homeowner the witness knows nothing and so the court disregards talk about the the servicer advances. But what really happens is fascinating and destructive.

“Servicer advances” are made from a cesspool of money from investors in hundreds of trusts. The servicer theoretically could be said to have effectuated payment (pursuant to the terms of the PSA, not the note — which is different), but the “servicer advances” are actually payments from the cesspool — i.e., money from the investors themselves.

So the servicer advances are being paid with the investor’s money, not the servicer’s money or credit. Judges, who are too weary to attempt to understand this process will simply say that goes on in the backrooms of these players is not their concern; the only issue for the Judge is whether the borrower stopped payment according to the note, even if the parties on the other end are still being paid. Clearly there is no subrogation here and even if there was, there would need to be an accounting of how to split ownership of the note and mortgage — something that nobody has done because of obvious defects in the money trail conflicting with the documentary trail.

So all of the above discussion leads to one point: the servicers attack the sale proceeds claiming “recovery” of servicer advances they never made because the investors were paid with their own money. But they did so as volunteers where there is no right of action to recover those “advances” from the certificate holders who were paid and whose books and records shows that they have not experienced a default — which then led them to get more confident about these “derivatives” and buy more bogus mortgage backed certificates issued by a non-operating entity without even a bank account.

Greed tends to reveal what is really happening. Those advances that the banks told the court to ignore because it is all just back-room adjustment, are now the subject of bundling and sale and securitization claims — with the “servicer” getting the money instead of the investors. The investors don’t see anything wrong because they got paid what they were expecting regardless of where the money came from. According to the investors, on whose behalf the loan was declared in default, there is no default because they received payment in full and as they expected.

With the several recent announcements of closing on the sale of bundled servicer advances, the proceeds go to the servicer, not the investors. So the investors get to keep their “payments” received from the servicer and the “Servicer” gets to keep the proceeds of the claim to “recover” the “servicer advances.” I would argue that those proceeds should NOT be taken out of the sale proceeds and that they should be counted as part of the investors’ stake, thus reducing the amount due from the borrower. If the total money is actually received by the investors or which is received by their “agent” on behalf of the investors is an amount in excess of what the borrower owes, then the balance is due to the borrower under law.

This has a direct effect on the right of the borrower to redeem. AND it has a direct effect on the money judgment contained in the Final Judgment of Foreclosure. In my opinion it is ripe for a motion to set evidentiary hearing on the redemption amount and/or a motion to vacate the judgment because the “lender” failed to disclose all the money that was received on account of the subject mortgage. The fact that they did not allocate those moneys as such is not controlling. Under GAAP rules the receipt by the agent is receipt by the principal. The account is paid off in whole or in part or in excess of the loan receivable from what the investors thought was the trust — but the receivable of the investors turns out to be due from the investment bank. But the investors have no documentation establishing their right to the note or the mortgage.

Judges who fail to inquire about the lack of reconciliation between the money trail and the paper trail and disclosure the way they did 25 years ago are adding fuel to the fire.

The longer the servicers can stretch out the time between the time when the homeowner stopped payments and the time when the foreclosure sale proceeds, the more servicer advances were paid to the certificate holders. Since the “servicer advances” actually were “advances” out of the investors’ own money, and since the servicer was going to claim those advances, it makes sense to prolong the time because the more time that passes, the higher the value of the claim for “recovery” of servicer advances.

If you do the math here is what you get:

  1. The certificate holders have not experienced a default even though one has been declared allegedly on their behalf but really on behalf of the servicer.
  2. The certificate holders lose the rights they thought they had as to proceeds of foreclosure.
  3. The only way to close the deal on servicer advances is to have a foreclosure sale. This is why you see modifications being turned down as a result of “rejection” by the investor (who in reality never saw or heard of the borrower, the default, the foreclosure or the request for modification).
  4. The push toward foreclosure sale instead of workouts or modifications floods the market with homes just as Wall Street flooded the market with money that increased the price of homes far above their fair market value. This knowledge allowed the banks to bet against housing prices and to bet against asset backed securities and win every time. Thus the “servicers” at every turn are working against the interests of the investors and for their own interests.
  5. Hundreds of billions of dollars have been paid to those investors who had the muscle to take on the mega banks. Those were settlements because it was obvious that the investment banks were liable to the investors for breach of every conceivable duty that arose from a fairly straightforward indenture on the mortgage backed securities. There is a question of how this money was paid and why. If it was paid on account of the loans that the investors wished to reject but are now stuck with, then a portion of that settlement money should be apportioned to the balance due from the borrower — which results in a principal deduction for the borrower that is congruent with the theft by the banks.

The only real question is why are so many of the investors allowing this rape of their stable managed funds? Maybe that “Chinese wall” between investment banking and commercial brokerage isn’t so thick?


Garfield Goose?

Apparently there has been an “after hours” segment being run by some people who have joined the coalition to create a nationwide association for lawyers and homeowners. They have requested that I post the following regarding tonight’s segment following the Neil Garfield Show: 

(Let’s hear from people who attend)
A gentle reminder – please make an appointment for yourself to join us for Episode [9] of “Garfield’s Goose & Friends” on TalkShoe with your host, greg; TONIGHT, Thursday evening at 6:45 PM Eastern.

This is right after Atty Neil Garfield’s weekly Thursday Night LIVING LIES – FORECLOSURE DEFENSE & ATTACK call which starts at 6:00 PM Eastern, and goes till 6:30 Eastern.

Our call is a 1+ Hour follow-up Q&A call which allows you to ask and answer questions stimulated by Neil’s show; or your own Foreclosure Defense experience…

Details follow:

i think we’ll start off with the Paatalo & Wolf cases…

1) Neil’s Living Lies Call at 6:00PM Eastern (347) 850-1260… on Blogtalk Radio

2) Our interactive Q&A call, “Garfield’s Goose & Friends” on TalkShoe – begins every Thursday night at 6:45PM Eastern, 15 minutes after the conclusion of Neil’s show

Call in at (724) 444-7444 (then use Call ID: 139335) then “1#” for guest
and/or use your computer to blog/type at
6:45 PM Eastern Thursdays (for 60 min)

[Our Calls and Chat Board are recorded for review and sharing…]

Note that computer access will ONLY allow you to hear and type into the blog (Not Speak)…

all are welcome!

if you; or one of your friends; would like to be added and receive email reminders of the call…
please email the host at: []
with the subject line: “please add me to the goose!”

If you would like to be REMOVED from the group…
please email the host at: []
with the subject line: “please pluck my goose”

thank you.
again… if you missed it – here is the complete wolf v wells fargo as collected by kali – but in ONE complete zip file…(saves you 1-1/2 hours downloading 64 discrete pdf files)


Get every new post delivered to your Inbox.

Join 4,146 other followers

%d bloggers like this: