Royal Bank of Scotland Trained Employees on How to Forge Signatures

Fraud for the first time in history has been institutionalized into law.

It is foolishness to believe that the banking industry is trustworthy and that they have the right to claim legal presumptions that their fabricated documents, and the forged documents are valid, leaving consumers, borrowers and in particular, homeowners to formulate a defense where the banks are holding all the information necessary to show that the current foreclosing parties are anything but sham conduits.

Here we have confirmation of a practice that is customary in the banking industry today — fabricating and forging instruments that sometimes irreparably damage consumers and borrowers in particular. Wells Fargo Bank did not accidentally create millions of “new accounts” to fictitiously report income from those accounts and growth in their customer base.

Let us help you plan your narrative : 202-838-6345. Ask for a Consult.

Video available now for Neil Garfield’s Mastering Discovery and Evidence in Foreclosure Defense webinar.

Get a Consult and TEAR (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).

https://www.vcita.com/v/lendinglies to schedule CONSULT, leave message or make payments. It’s better than calling!
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
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Across the pond the signs all point to the fact that the custom and practice of the financial industry is to practice fraud. In fact, with the courts rubber stamping the fraudulent representations made by attorneys and robo-witnesses, fraud for the first time in history has been institutionalized into law.

RBS here is shown in one case to have forged a customer’s signature to a financial product she said she didn’t want —not because of some rogue branch manager but because of a sustained institutionalized business plan based solidly on forgery and fabrication in which employees were literally trained to execute the forgeries.

The information is in the public domain — fabrication, robo-signing and robo-winesses testifying in court — and yet government and the courts not only look the other way, but are complicit in the pandemic fraud that has overtaken our financial industries.

Here are notable quotes from an article written by J. Guggenheim.

Once upon a time, in a land far, far away- forgery, fabrication of monetary instruments, and creating fake securities were crimes that would land you in prison.  If you forged the name of your spouse on a check it was a punishable crime.  The Big Banks now forge signatures and fabricate financial instruments on a routine basis to foreclose on homes they can’t prove they own, open accounts in unsuspecting customer’s names, and sign them up for services they don’t want.  If this isn’t the definition of a criminal racketeering enterprise- what is?

RBS, following the Wells Fargo Forgery model, conceded that a fake signature had been used on an official document, which means a customer was signed up to a financial product she did not want.  RBS’s confession comes only two weeks after whistle-blowers came forward claiming that bank staff had been trained to forge customer signatures. [e.s.]

The confession comes only two weeks after The Scottish Mail on Sunday published claims by whistle-blowers that bank staff had been trained to forge signatures.

At first, RBS strenuously denied the allegations, but was forced to publicly acknowledge this was likely a widespread practice. [e.s.]  The bank was forced to apologize publicly after retired teacher Jean Mackay came forward with paperwork that clearly showed her signature was faked on a bank document.  The great-grandmother was charged for payment protection insurance (PPI) back in 2008 even though she had declined to sign up for the optional product.

At first the bank refunded her fees but refused to admit the document was forged.  [e.s.]A forensic graphologist confirmed the signatures were ‘not a match’, forcing the bank to concede and offered her a mere £500 in compensation for their fraudulent act.

Forensic Graphologist Emma Bache, who has almost 30 years’ experience as a handwriting expert, examined the document and said the fundamental handwriting characteristics do not match.

The Banks in Britain, Australia, New Zealand and Canada, along with the United States include forgery and fabrication in their business models to increase profits.  Why shouldn’t they?  There is NO THREAT because they know they will not be held accountable by law enforcement or the courts- so they continue to fleece, defraud, and steal from their customers.

Homeowners must force an urgent investigation into claims of illegal practices by the banks.  Wells Fargo is not doing anything that CitiBank, JPMorgan Chase, Bank of America and others aren’t doing.  To remain competitive in an unethical marketplace, you almost have to resort to the same fraudulent tactics.[e.s.]

However, whistle-blowers have now revealed that managers were coached on how to fake names on key papers.  Whistle-blowers said that staff members had received ‘guidance’ on how to download genuine signatures from the bank’s online system, trace them on to new documents then photocopy the altered paperwork to prevent detection.  When in fact the bank taught its employees how to engage in criminal conduct.

Although clearly against the law, the whistle-blowers claim it was “commonly done to speed up administration and complete files.”  Just like American banks forge notes and assignments to ‘speed up foreclosures and complete files.’  They claim the technique was also used to sign account opening forms – and even loan documents. [e.s.]

Forgery

According to Justia.com, the “criminal offense of forgery consists of creating or changing something with the intent of passing it off as genuine, usually for financial gain or to gain something else of value.” This often involves creation of false financial instruments, such as mortgage notes, assignments, checks, or official documents. It can also include signing another person’s name to a document without his or her consent or faking the individual’s handwriting.  Forgery often occurs in connection with one or more fraud offenses. 

Fla. Supreme Court Takes Jurisdiction Over Attorney Fees Controversy

Under current doctrine, banks can continually file baseless claims against homeowners until they win — mostly because the homeowner does not have infinite resources. In the meanwhile each time the banks lose they are not liable for attorney fees. But if they win they get attorney fees under F.S. §57.105. If the homeowner prevails on the theory that the named Plaintiff is an imposter having nothing to do with the loan, then, according to current doctrine, the basis for recovery of attorney fees (as set forth in the mortgage and note) does not apply.

The basic injustice of this doctrine has attracted the attention of the Florida Supremes. The logic should apply both for the homeowner and for the bank. That is what we mean by blind justice. If someone takes a position in court and ultimately prevails then they are entitled to fees if the contract provides for fees. The appellate courts have erroneously concluded that this can only be applied for the banks, not the borrower.

Let us help you plan your case narrative and strategy: 202-838-6345. Ask for a Consult.
Register now for Neil Garfield’s Mastering Discovery and Evidence in Foreclosure Defense webinar.
Get a Consult and TEAR (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).
https://www.vcita.com/v/lendinglies to schedule CONSULT, leave message or make payments. It’s better than calling!
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
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See Fla. Supreme Court Weighs in on Homeowner’s right to Recover Attorney

The current doctrine is that once you have prevailed on the issue of standing you have also disproved your right to recover attorney fees. The problem is that the decisions have focused on the wrong thing: the contract exists regardless of who is asserting rights for or against the contract. If the finding of the court was that no contract ever existed, then it would make sense that neither party could claim any benefit from a contract that never existed.

But that is not what is happening. The courts have gone off the tracks and hopefully the Florida Supremes will fix the problem. The current doctrine assumes that for purposes of the case the contract does not apply to the party who filed the case seeking relief pursuant to the contract (the note and mortgage). The current process requires a homeowner to defend a baseless action. But having asserted rights under the contract, the banks should die by their own sword. Otherwise the banks can keep coming into court under the same named Plaintiff forcing the homeowner to defend the same action repeatedly — until they run out of money.

Failure to award fees to the homeowners presents a clear strategy to the banks. Since there is no risk of loss, they will keep filing actions in which their named Plaintiff has no standing until they win by default because the homeowner simply can’t afford to litigate forever.

If fees were awarded, as they always were until the courts  invented a doctrine to deny the fees, then the banks would have risk of loss and would therefore be inclined to file only file actions that had merit.

FDIC “endorsements” of Note or “Assignments of Mortgage”

The FDIC does not want to get into the middle of a court battle over the validity of ownership claims etc. Most endorsements and assignments occurring while the estate of a failed bank is in receivership are of dubious validity and often outright fraud. Chase for example claims ownership of loans when it suits them but denies ownership — or any liability arising out of the loan ads service practices — when it would place Chase in a bad position.

Let us help you plan your case narrative and strategy: 202-838-6345. Ask for a Consult.

Register now for Neil Garfield’s Mastering Discovery and Evidence in Foreclosure Defense webinar. Webinar scheduled for Tomorrow at 1PM EST. You’ll understand this article a lot better when you learn a thing or two about the rules and laws of EVIDENCE.

Get a Consult and TEAR (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).

https://www.vcita.com/v/lendinglies to schedule CONSULT, leave message or make payments. It’s better than calling!
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
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Here are my instructions  to our paralegals who do there search for our TEAR (Title & Encumbrances Analysis and & Report) on a case involving the failed bank, BankUnited and the treatment of “loans” claimed to be within the estate of the failed bank. You can pretty much use this wherever the FDIC was involved.

1. Go to FDIC.gov
2. At bottom of page in small letters in FOIA — Freedom of Information Act
3. Then go to reading room
4. Look up BankUnited — find Purchase and Assumption Agreement by whatever bank took over the assets. You might find other documents of interest.

There are two types of note endorsements from FDIC receiverships

1. Execution of endorsement by actual FDIC person with authority — that would be the person who is the FDIC receiver for that particular Bank failure. This is rare if not unheard of. Technically the FDIC owns the estate of the failed bank but does not actually run it. It keep the people in place until it finds a bank to takeover the estate of the failed bank. SO you could have some hybrid, theoretically (I have never seen it) where a person who was working for the failed bank at the time of the receivership executes a document with approval from the FDIC receiver. So you would be looking for whether the endorsement was executed by an employee of thee failed bank while the failed bank was owned in receivership and with approval from the FDIC receiver. This is something that could be included in a report stating that there is no document or other evidence presented, thus far, indicating the endorsement was by someone with authority — and that research of the signatory indicates he/she was employed by whoever (someone else) indicating that there is at the very least an inconsistency between the execution of the endorsement and the employment record of the person who signed.

2. Execution by way of a power of attorney executed supposedly by the FDIC receiver. While some of these are real most are not. The actual person signing is an employee of say, Chase Bank, who claims to be agent for either the failed bank or the FDIC receivership estate. What is missing is a copy of the power of attorney. we are left with just the claim under circumstances where industry practice is to fabricate and forge documentation in order to push through a fraudulent foreclosure.

NOTE: The transfer of the estate of the failed bank does NOT mean that the loans were transferred. In the case of BankUnited it was securitizing the “loans” at a time that either predated the closing (i.e., upon application of the borrower) or the claim of securitization (a lie by the way) originates contemporaneously with the alleged closing of the loan. That means that the failed bank was deriving its income off of fees generated by originations and in some cases (I don’t think BankUnited was a servicer) retaining the servicing rights but not the ownership. AND THAT means that at the time of the failure of the bank it had few, if any, assets that were loans receivable. AND THAT means that their endorsement could be fake for lack of authority (see above) or simply void because at the time of the endorsement they didn’t own the loan.

The illusion of “ownership” is created by the self-serving execution of an endorsement where the courts often presume that the endorsement was real and authorized. THAT presumption leads to another assumption: that the endorser owned the debt and that a transaction took place in which the loan was actually purchased for value, making the endorsement EVIDENCE that the transaction took place. It is circular logic but it is working in the courts for the banks. Our job is to show that the endorsement and the ownership are, at the very least, suspect.

Keep in mind that the original “lender” (the originator) might not have have loaned any money to the borrower, but rather took credit for making the loan without objection from the parties who actually funded the loan. Under common law and the UCC the only party that owns the debt is the one who funded the loan. The endorsements and assignments contribute to the illusion that the originator was in fact the lender. Paper instruments are potentially evidence of a transaction in which money exchanged hands. All paper instruments are hearsay but many can be admitted under exceptions to the hearsay rule. The paper instrument should never be confused with the actual monetary transaction. If there was no transaction, then the paper instrument is a nullity as it refers to a nonexistent transaction.

TILA RESCISSION: The Bottom Line for Now

Probably the main fallacy of the people who say that TILA Rescission is not possible or viable is that they project the outcome of a lawsuit to vacate rescission. Based upon their conjecture, they assume that Rescission is no more than a technicality. Congress, and SCOTUS beg to differ. It was enacted into law 50 years ago in an effort to prevent unscrupulous banks from screwing consumer borrowers.

Let us help you plan your TILA RESCISSION narrative and strategy: 202-838-6345. Ask for a Consult.

Register now for Neil Garfield’s Mastering Discovery and Evidence in Foreclosure Defense webinar.

Get a Consult and TEAR (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).
https://www.vcita.com/v/lendinglies to schedule CONSULT, leave message or make payments. It’s better than calling!
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
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I keep getting emails from non lawyers who have a “legal opinion” that not only differs from mine, but also the opinion of hundreds of lawyers who represent the banks and servicers. They say that because disclosures were probably made that rescission is nothing more than a gimmick that will never succeed and they point to the many case decisions in which courts have ruled erroneously in favor of the banks despite a rescission that eliminated the subject matter jurisdiction of the court, since the loan contract, note and mortgage no longer exist. The debt, however, continues to exist even if it is unclear as to the identity of the party to whom it is owed.

First the courts ruled erroneously when they said that tender had to be made before rescission was effective. Then the courts said that no rescission could be effective without a court saying it was effective. That one put the burden on proving the figure to make proper disclosure on the homeowner. The Supreme Court of the United States, (SCOTUS — see Jesinoski v Countrywide) after thousands of decisions by trial and appellate courts, told them they were wrong. As of this date, no court has ever ruled that the rescission was vacated — the only thing that could stop it.

The lay naysayers keep harping on how wrong I am about rescission. Unfortunately many people believe what they read just because it is in writing. In my case I simply instruct the lawyers and homeowners to simply read the TILA Rescission statute and the unanimous SCOTUS decision in Jesinoski. What they will discover is that I am only repeating what they said — not making it up as some would have you believe.

To the naysayers and  all persons in doubt, i say the following:

As I have repeatedly said, in practice you are right, for the time being.
But the legal decision from SCOTUS will undoubtedly change the practice. The law is obvious and clear. SCOTUS already said that. So no interpretation is required or even permissible. SCOTUS said that too. TILA Rescission is mainly a procedural statute, not a substantive one. SCOTUS said that too. On the issue of when rescission is effective, it is upon mailing (USPS) or delivery. SCOTUS said that too. On the issue of what else a borrower needs to do to make TILA rescission effective, the answer is nothing. SCOTUS said that too.

Hence the current argument that you keep making is true “in practice” but only for the moment. SCOTUS will soon issue another scathing attack on the presumptuous courts who defied its ruling in Jesinoski. There can be no doubt that SCOTUS will rule that any “interpretation” that contradicts the following will be void, for lack of jurisdiction, because the loan contract is canceled and the note and mortgage are void:

  1. No court may change the meaning of the words of the TILA Rescission statute.
  2. Rescission is law when it is mailed or delivered.
  3. Other than delivery no action is required by the borrower. That means the loan contract is canceled and the note and mortgage are void. They do not exist by operation of law.
  4. Rescission remains effective even in the absence of a pleading filed by the borrower to enforce it.
  5. Due process is required to vacate the rescission. That means pleading standing and that proper disclosure was made, an opportunity for the borrower to respond, and then proof that the pleader has standing and that proper disclosures were made.
  6. Pleading against the rescission must be filed within 20 days or it is waived.
  7. At the end of one year both parties waive any remedies. That means the borrower can no longer enforce the duties imposed on the debt holder and the debt holder may no longer claim repayment.
  8. The only claim for repayment that exists after rescission is via the TILA Rescission statute — not the note and mortgage. This is based upon the actual debt, not the loan contract or closing documents.
  9. Any claim for repayment after rescission is predicated on full compliance with the three duties imposed by statute.
  10. A court may — upon proper notice, pleading and hearing — change the order of creditor compliance with the three duties imposed upon the debt holder. This does not mean that the court can remove any of the duties of the debt holder nor summarily ignore the rescission without issuing an order — upon proper notice, pleading and proof — that the rescission is vacated because the proper disclosures were made or for any other valid legal reason that does not change the wording of the statute.
  11. The three duties, which may not be ignored, include payment of money to the borrower, satisfaction of the lien (so that the borrower might have an opportunity to refinance), and delivery of the original canceled note.

Virtually 100% of lawyers for the banks and servicers agree with the above. They have advised their clients to file a lawsuit challenging the TILA Rescission because such a lawsuit could be easily won and would serve as a deterrent to people attempting to use TILA rescission as a defense to collection or foreclosure efforts. Yet their clients have failed to follow legal advice because they know that they have no debt holder to whom funds can be traced. If they did identify the debt holder(s) they would be showing that they played just as fast and loose with investor money as they have done with the paperwork in foreclosures.

Does this mean a free house to homeowners? Maybe. Considering how many times the loans were sold directly and indirectly, and how many times the banks received insurance, bailout and purchases from the Federal Reserve, that wouldn’t be a bad result. But the truth is that everyone knows that won’t happen unless the courts continue their decisions with blinders on.

In the end, the homeowners do owe money to the investors whose money was used too fund the loans, directly and indirectly. Whether it is secured or not may depend upon state law, but as a practical matter very few borrowers would withhold their signature from a valid mortgage and note based upon economic reality.

Evidence and Forensic Reports

Every once in a while it is helpful for the consumer to realize that a non lawyer giving advice or opinions about legal matters is like going to a nail salon for a medical opinion, or worse, treatment.
There is a simple test for hiring a  purported forensic investigator: Are they in close touch with attorneys who understand the law and how to apply the law, particularly the laws and rules of Evidence? If not, steer clear of them as they will lead you down a rabbit hole.
Let us help you plan your narrative and strategy: 202-838-6345. Ask for a Consult.
Register now for Neil Garfield’s Mastering Discovery and Evidence in Foreclosure Defense webinar.
Get a Consult and TEAR (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).
https://www.vcita.com/v/lendinglies to schedule CONSULT, leave message or make payments. It’s better than calling!
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
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At our upcoming webinar this Friday, 2/16 at 1PM, we explore not only discovery and the actual rules of evidence, but also what constitutes facts that could be admitted into evidence — and cross examination or trial objections that prevent or remove information from being considered as evidence proving the truth of the matter being asserted.

Some of those facts that could be used as evidence or “anti-evidence” (information that removes the foundation or credibility for evidence admitted) come from the court filings but many of them come from forensic investigators whose task is to report on facts that tend to prove gaps in the narrative of the foreclosing party. At the Webinar will be two forensic investigators whose work I support because they understand the difference between facts and the law.

It is challenging for forensic investigators to refrain from  giving opinions on legal matters. But in order for their report to be taken seriously and in order for the conclusions to be persuasive, forensic investigators need to refrain from expressing conclusions of law. If not, they will be ripped to shreds on the witness stand where their credibility will sink to zero. Keep in mind that the report is not evidence nor will it ever be admitted into evidence without authentication and foundation from a live witness (the author).

It is interesting that I frequently come under attack from non lawyers who are constantly trying to steer people to forensic investigative reports that apparently ignore the standards for issuing such reports — because they pretend to be knowledgeable about the law and they offer legal advice and commentary which is the unauthorized practice of law.

Their reports are inevitably half baked and favor the banks by discounting the best defenses and offensive plays for a homeowner in favor of strategies that will almost certainly fail. Which in turn leads to the question: Why are non lawyers polluting the discussion with pro-bank obfuscation?

Even more interesting is that bank lawyers who have published articles about rescission and foreclosure defenses assume that rescission and foreclosure defenses based upon standing and such are valid. Indeed even the most biased courts recognize that standing is the root of their jurisdiction. Without standing the court cannot do anything other than dismissing the vacating the foreclosure complaint or sale. And winning on standing is far from simply delaying the inevitable.

“Mortgage examinations” in lieu of getting advice from a licensed attorney is legal suicide. But there are some entrepreneurs selling exactly that. Slick talking is not replacement for 3 years of law school, internship, and experience in the practice of law. So when I get something like this it worries me that anyone might read or believe it:

What’s wrong with foreclosure pretense defense attorneys all over Florida?  Why to they hang their hats on standing issues that serve only to delay the inevitable, predictable, and proper loss of the borrower’s home to justified foreclosure?
If all those lawyers who “get it” (meaning get the scheme of bilking clients for the privilege of losing their house for them) were to get mortgage examinations done for their clients and thereby find numerous causes of action underlying the loan transaction, then they would have something worthwhile to bring to the court instead of dilatory standing issues.
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The question is basically a cynical dud advanced by the banks. Foreclosure defense lawyers are not pretending anything. They are doing the best they can with what they are getting paid. Standing is not just important in terms defeating the current foreclosure action. It is also important in preventing future ones, and important for collateral damage cases based in wrongful foreclosure, interference in business relations, emotional distress and potentially punitive damages.
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As thousands of homeowners can attest, when they won on standing and the servicer and so-called mortgagee or beneficiary has painted themselves into a corner, the scales have tipped very much in favor of the homeowner. The banks do not have a ready option to submit different paperwork and pursue the second foreclosure — although it has been done. The only reason why successor foreclosures are successful is default. Homeowners, exhausted by the first round simply give up and walk away or settle for cash for keys or modification.
Your money is much better spent on licensed attorneys rather than unlicensed, uneducated, untrained lay people whose only exposure consists of presenting false challenges to real lawyers — except where those investigators are working at the direction of or in support of some lawyer. Their reports are no substitute for a lawyer who understands and uses objections and the art of cross examination to bring the factual findings to life.
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Many lay “entrepreneurs” have attempted to lure me into a “debate” so that they can raise themselves on the radar to put out more useless reports. Every once in a while it is helpful for the consumer to realize that a non lawyer giving advice or opinions about legal matters is like going to a nail salon for a medical opinion, or worse, treatment.

 

 

Ghostwriter: Fabricating Original Wet Blue Ink Signatures — the Underlying Fraud Behind Nearly all Foreclosures

Want to know how they popped up with an “original” note that looked like the original?

“Our machines have been in government installations worldwide for over 60 years. The Ghostwriter T550 has been a popular machine. It offers the ability to sign signatures or short phrases on letters, awards, forms, and other correspondence. You are also able to enlarge or reduce the size of the signature to fit the signing area of the document. As with all Ghostwriter machines, security is a priority. Signatures are not stored in the machine but on a removable device. Machines are also equipped with passcode entry.”

Let us help you plan your narrative and strategy: 202-838-6345. Ask for a Consult.
Register now for Neil Garfield’s Mastering Discovery and Evidence in Foreclosure Defense webinar.
Get a Consult and TEAR (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).
https://www.vcita.com/v/lendinglies to schedule CONSULT, leave message or make payments. It’s better than calling!
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
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CLICK THE FOLLOWING LINK

Electronic Signature

AutoPen Sales – signature machine

I thought it was obvious but after speaking to a number of lawyers I have discovered that they and their clients are not aware of the technology used to produce fabricated “original” documents.

Start off with the extensive study performed by Katherine Ann Porter (now running for Congress in California) at the University of Iowa which concluded that at least 40% of all notes were destroyed immediately after execution. There is no reasonable explanation for this behavior except that the banks thought they could come up with a reproduction of the original that was so life-like that it would be taken as the original document — even by the borrower.

Later investigations showed that as many as 99% of all notes were destroyed, lost or sequestered without regard to who or what owned the notes or the debt.

In 2008 I advised all readers to not admit that they were being shown the original note in court. The narrative is that they could not possibly know whether the signature was original or a reproduction (nor how many times the “original” had been reproduced for transactional purposes).

Here is the main point: nearly all promissory notes being used in residential mortgage foreclosures are fabrications with the borrower’s signature forged by mechanical devices that can not only mimic the signature, and the flow of the handwriting, but also create depth of impressions because these mechanical means employ the use of an actual pen.

Even experts can be mislead — especially if they are only using a copy of the “original.”

Practice Pointer: Discovery question; Please describe the conditions under which a mechanical device was used to reproduce documents and/or signatures relating to the subject alleged loan documents.

Even the Bank Attorneys Admit that NO Tender or lawsuit is Required in TILA Rescission. Burden is on the “lender” side.

It appears that I have struck a nerve with many of the people who seek to prove me wrong in my “theories.” They are facts, not theories. And as explained by yet another attorney writing an article for the banks and bank attorneys, it is up to the “bank” side of the equation to do anything about rescission. The borrower need do nothing except send the notice. If the “bank” side does nothing they do so at their own peril — not the homeowner’s peril. READ THE STATUTE and the unanimous decision by SCOTUS in Jesinoski v Countrywide.

Although trial judges treat the matter as unsettled or even settled opposite to the express wording of the statute and the only case that matters, the issues raised defensively by the “bank” side relative to TILA Rescission are plainly without merit and well-settled by statute and SCOTUS.

The article below seeks to point out that the TILA Rescission statute allows a court of competent jurisdiction to change the order of things — if petitioned to do so. She avoids the obvious problem: that nobody has filed such a suit because they (a) don’t have standing and (b) they are winning anyway by playing to the bias of judges.

“A borrower may effectuate rescission “by notifying the creditor.” 12 U.S.C. § 1635(a). The United States Supreme Court held in Jesinoski v. Countrywide Home Loans, Inc. that a borrower need only send written notice to a lender “in order to exercise his right to rescind”; it is not necessary for the borrower to also sue for rescission to “exercise” the right of rescission. 574 U.S. ___, 135 S.Ct. 790, 793 (2016).”

Let us help you plan your narrative and strategy: 202-838-6345. Ask for a Consult.
Register now for Neil Garfield’s Mastering Discovery and Evidence in Foreclosure Defense webinar.
Get a Consult and TEAR (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).
https://www.vcita.com/v/lendinglies to schedule CONSULT, leave message or make payments. It’s better than calling!
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
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SeeLaw360: When to Consider Modifying TILA Rescission Procedures

Guide to understanding TILA Rescission.
  1. If someone is giving you advice or analysis and they don’t have a law degree and some experience practicing law, ignore them.
  2. READ THE STATUTE YOURSELF: 15 USC §1635.
  3. READ THE ONLY CASE THAT MATTERS: Jesinoski v Countrywide, decided by the highest court in the land — the Supreme Court of the United States. (SCOTUS)
  4. Be prepared for push back because that is working for the “bank side.” They are wrong and they know it but they are still convincing judges to ignore the wording of the statute and ignore the word of the boss of bosses (SCOTUS).
  5. A court decision that does not vacate the rescission is no decision at all. The courts have been careful to avoid this obvious issue. Since the rescission is effective when mailed (or delivered), that is the moment when the loan contract is canceled, and the note and mortgage rendered void. Any court that moves forward despite rescission is exceeding its jurisdictional authority as there is no longer subject matter jurisdiction.

There many shills and well intended people out there on the internet who have strong opinions about TILA Rescission. Nearly all of them have no law degree and no experience practicing law and lack any useful knowledge about court procedure. They should be ignored. Even the “bank” lawyers ignore them.

Their erroneous points come down to this:

  1. if the disclosures to the borrower were complete, then rescission doesn’t count
  2. it is up to the borrower to make TILA rescission effective.
  3. if the borrower cannot tender the principal back then the rescission is not effective.
  4. the TILA statute allows courts to change the order of duties of the “bank” side and the borrower side.

All four points are dead wrong because of due process. You can’t get relief unless you plead for it. So far the “bank” side has convinced judges they don’t need to file a pleading to get rid of an effective TILA Rescission. That is going to change.

The statute contains no presumptions that the disclosures are complete. In our legal system that means that a party with standing must bring an action that requests relief from rescission on the grounds that disclosure was complete. And they must bring such an action timely under the TILA Rescission Statute (i.e, within 20 days).

TILA rescission is effective at the moment of mailing or delivery by operation of law (i.e., the TILA Statute). The Supreme Court has already ruled unanimously that no lawsuit or other action is required by the borrower on the issue of rescission. Sending it means the loan contract is canceled and the note and mortgage are void.

No tender of money or property is required by the TILA statute in order to make rescission effective. This is not a theory. This is what the statute says and what the Supreme Court of the United States says. You can disagree with it all you want but the matter is legally settled.

The fact that the statute allows the court to reorder the statutory duties and obligations does not mean anyone asked the court to do so. If they did, the borrower would be entitled to due process — i.e., time to respond to the new order of things. Obviously that pleading is not going to submitted by the borrower. Just as obviously that pleading must be filed seeking relief from the rescission and allowing due process — i.e., litigation over whether the sending of the rescission was lawful but only in the context of a pleading filed by a party with standing.

And that is the point. There probably is no party with standing once you strip away the note and mortgage. The owner of the debt is most likely unknown. And that is where we are. Eventually SCOTUS will rule again on TILA Rescission. If the next ruling is consistent with their last ruling they will once again strike down the procedures and substance of court rulings that ignore the existence of the TILA rescission which was effective by operation of law, from the moment it was sent or delivered.

Here are some relevant quotes from the article cited above, written by an attorney working for a firm that represents banks:

Lenders at times find themselves assessing how to handle a claim by a borrower that he or she is entitled to rescind a loan under the Truth in Lending Act (TILA). Rescission under TILA is distinct from common law rescission due to one main difference: unlike common law rescission, which requires the rescinding party to tender any benefits received under the contract back to the other party as a condition precedent, TILA allows a borrower to exercise the right of rescission before such tender must occur. This can result in putting a lender on its heels, seeking to defend against the merits of a TILA rescission claim before even knowing if the borrower can fully effectuate the rescission by ultimately tendering the proceeds of the loan back to the lender.

However, it is possible to avoid this situation, even when operating within the framework of TILA. A strategically useful but often under-utilized tool for lenders in litigation involving rescission under TILA is to seek an order altering the statutorily prescribed procedures for rescission.

Overview of Rescission under TILA

Ordinarily, under section 1635(a) of TILA, a borrower has the unconditional right to rescind a loan for three days after the consummation of the transaction, delivery of notice that the borrower has a right to rescind or delivery of all material disclosures – whichever comes later.[1] Thus, if the lender provides the borrower with the requisite material disclosures upon closing the loan, a borrower’s right of rescission under TILA is extinguished after three days.

Assuming, however, that a lender does not provide a borrower with all necessary “material disclosures,”[2] section 1635(f) of TILA extends a borrower’s right of rescission to three years after the consummation of the transaction.[3]

While common law rescission requires a rescinding party to tender the benefits received pursuant to an agreement back to the other party as a condition precedent, TILA prescribes otherwise. Section 1635(b) states that when a borrower “exercises his right to rescind under subsection (a), he is not liable for any finance or other charge, and any security interest given by the obligor … becomes void upon such a rescission.”[4] Moreover, upon the exercise of rescission “under subsection (a)” of TILA, the lender is required to return any down payments provided by the borrower and “take any action necessary or appropriate to reflect the termination of any security interest created under the transaction” within 20 days of receiving a notice of rescission.[5] Only after a lender performs its obligations under subsection (b) is the borrower required to tender back any benefits received, such as loan proceeds.[6] Notably, however, both section 1635(b) and TILA’s implementing regulation, Regulation Z, provide that the procedures for rescission under TILA may be modified by court order.[7]

 

 

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