Paralegal Training — Entity Research

Producing a USEFUL report that can identify gaps, inconsistencies and deficiencies in the primary documents used for foreclosure is a complex task. It must be thorough and it must be correct and free from “opinions” that the writer is not qualified to present. Opinions ruin credibility under they come from a qualified expert with credentials, education, training and experience in cases other than your own.

This article is devoted to one tiny step in the process of forensic research and investigation. A properly trained paralegal is far more likely to get it right than a pro se litigant and even most lawyers.

GO TO LENDINGLIES to order forms and services. Our forensic report is called “TERA“— “Title and Encumbrance Report and Analysis.” I personally review each of them for edits and comments before they are released.

Let us help you plan your answers, affirmative defenses, discovery requests and defense narrative:

954-451-1230 or 202-838-6345. Ask for a Consult. You will make things a lot easier on us and yourself if you fill out the registration form. It’s free without any obligation. No advertisements, no restrictions.

Purchase audio seminar now — Neil Garfield’s Mastering Discovery and Evidence in Foreclosure Defense including 3.5 hours of lecture, questions and answers, plus course materials that include PowerPoint Presentations.

THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.

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STARTING POINT: An entity has been identified in a document that is in the chain of title as recorded in the public records in the county where the property is located.
  1. You must report on the status of that entity.
  2. Did that entity exist at the time the document was supposedly executed?
  3. Is that entity actually a part of the chain of title or is it merely referenced? Or is it not clear, because of the way the signature block was constructed?
  4. Does that entity exist now?
  5. What is the history of that entity?
  6. Has that entity been involved in alleged robo-signing in other cases — check with top 400 robosigners.
  7. Based upon the documents and facts you have obtained, is there any indication as to whether that entity has a financial interest in the debt, the note or the mortgage? [They are different. In order to foreclose the foreclosing party must own all three].
Where to start? Start on your own. Become proficient in Google searches.
Step by Step: Example XYZ Savings Bank, FSB. First look in search index on LIVINGLIES BLOG
  1. Google: “Who is XYZ Savings Bank FSB”
  2. Google: “What is a “Federal Savings Bank?”
  3. Google:  “Implodometer”
  4. Google: “Where is XYZ Savings Bank FSB located?”
  5. Google: “Where is XYZ Savings Bank FSB registered?
  6. Google: “XYZ Savings Bank FSB + merger”
  7. Google: “XYZ Savings Bank FSB + FDIC”
  8. Google: “XYZ Savings Bank FSB + lawsuit”
  9. Go to LIVINGLIES BLOG homepage and insert name of entity in search index.
Example Report:
  1. XYZ Savings Bank FSB is referenced on an instrument bearing the title “Assignment of Mortgage.” There is no reference to a financial transaction in which the debt, note or mortgage was acquired.
  2. It was created (or chartered) under and regulated by United States federal law, and administered by the United States Department of the Treasury’s Office of the Comptroller of the Currency, which shows XYZ Savings Bank FSB as “Active”on its website.
  3. The specific reference to XYZ Savings Bank FSB is that the “Assignment” instrument dated the 5th day of July 2009 recites that Ocwen Loan Servicing is the attorney in fact for XYZ Savings Bank FSB. No Power of Attorney is attached to the instrument nor has any such power been presented in any of the documents we have reviewed. Discovery and further investigation should be focused on whether the “assignment” actually transferred any rights to the Assignee.
  4. XYZ Savings Bank FSB is presented as the trustee for the 123 Trust. No organizational document for the 123 Trust  has been presented for our review. The trust may or may not exist and therefore XYZ Savings Bank FSB may or may not be the trustee.
  5. XYZ Savings Bank FSB is a Federal Savings Bank and currently exists as an independent entity with headquarters in Akron, Ohio. It was formerly known as First Community Bank which was formerly known as Akron Savings Bank, organized under the laws of the State of Ohio.
  6. It has not been party to a petition for bankruptcy or seizure by the FDIC.
  7. It has not been a party to any merger nor has it ever been acquired by another entity.
  8. It was created (or chartered) under and regulated by United States federal law, and administered by the United States Department of the Treasury’s Office of the Comptroller of the Currency, which shows XYZ Savings Bank FSB as “Active”on its website.
NOTE: Our paralegal staff stands ready to help ghostwrite discovery, pleadings, motions and other documents. This is performed under my supervision and subject to my edits and comments. Go to LendingLies for more information.

JUDICIAL NOTICE IS BEING USED AS A SUBSTITUTE FOR PROOF OF FACTS THAT ARE CONTESTED

The entire playbook of the banks and servicers consists of one underlying theme: to obtain foreclosures based upon presumptions that are contrary to the facts.

GO TO LENDINGLIES to order forms and services

Let us help you plan your answers, affirmative defenses, discovery requests and defense narrative:

954-451-1230 or 202-838-6345. Ask for a Consult. You will make things a lot easier on us and yourself if you fill out the registration form. It’s free without any obligation. No advertisements, no restrictions.

Purchase now Neil Garfield’s Mastering Discovery and Evidence in Foreclosure Defense webinar including 3.5 hours of lecture, questions and answers, plus course materials that include PowerPoint Presentations. Presenters: Attorney and Expert Neil Garfield, Forensic Auditor Dan Edstrom, Attorney Charles Marshall and and Private Investigator Bill Paatalo. The webinar and materials are all downloadable.

Get a Consult and TERA (Title & Encumbrances Analysis and & Report) 954-451-1230 or 202-838-6345. The TERA replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).

GO TO WWW.LENDINGLIES.COM OR https://www.vcita.com/v/lendinglies toschedule 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 Judicial Notice in Florida 90.202

and notice these provisions that are common to most if not all Judicial Notice statutes specifically state that judicial notice is ONLY for facts not subject to dispute.

Get up to speed on judicial notice. It is a ruse in the context of foreclosures and especially evictions or unlawful detainer actions filed after a supposed sale. They are seeking to avoid the requirement of proving that which they cannot prove unless the court not only accepts the document has having been judicially noticed but also that what is written on the document is presumptively true.

This is one place where the burden does not shift so easily. As I read the law, once you make the assertion contained in the document a question of fact, then the burden does not shift to you unless and until they introduce testimony (not legal argument) that is the foundation for introducing the document into evidence.   It seems crystal clear that they cannot do this because the facts point in an entirely different direction.

You might want to consider filing your own motion for summary judgment on the premise that if all they have is a plea for judicial notice and  they can’t otherwise prove the truth of the matters asserted in the documents submitted for judicial notice, then they have nothing and there are no issues of fact left to be tried, the burden does not shift to you, and judgment should be entered against the party seeking possession through eviction.

In your argument you should cite specific case law and statutes on judicial notice. Judicial notice is not meant to be a vehicle for skating around the truth. It is meant to streamline admission of evidence that comes from an independent third party with no interest in the outcome of litigation and is therefore presumptively true — because it is 100% credible.

First judicial notice is only good for proving the fact that the document exists. Second, what is written on the document is presumed true UNLESS you deny or object — so they must still prove that what is written on the document is true with other evidence. Third, judicial notice mostly applies to government generated documents — not self serving documents that are recorded or uploaded somewhere for the sole purpose of invoking judicial notice.

The entire reason why judicial notice exists is judicial economy — why require someone to prove something that everyone already knows is true or is contained in government agency files or website wherein the information is generated by an independent third party with no interest in the outcome of the litigation? Such documents are inherently credible.

They will try to say that they took title by virtue of the deed that was issued. The fact that they are seeking the court to admit into evidence as true is that the deed was valid. You contest that the deed was valid. Therefore it is up to them, apart from the deed, to show facts that the deed was valid and that means that the property was sold by a properly authorized trustee on behalf of an actual beneficiary who was either the obligee of the contested debt or the authorized agent for the obligee.

If the property was “sold” on behalf of a party who was not an obligee on the debt then it was sold by a non-beneficiary. And the filing of a substitution of trustee was void. And the “credit bid” was a false statement equivalent to perjury.

No Surprise: Ocwen & US Bank Hit by $3.8 Million Verdict in Chicago Federal Trial For Violations in Fake Foreclosure

“The jury, after deliberating for approximately 7 hours, determined that Ocwen breached its contract, violated RESPA for failing to adequately respond to Saccameno’s Qualified Written Request, violated the FDCPA and committed both unfair and deceptive acts in violation of the Illinois Consumer Fraud Act.  Monette Saccameno was awarded $500,000.00 in compensatory damages, $70,000.00 in non-economic damages, $12,000.00 in economic damages and $3,000,000.00 in punitive damages. Nicholas Heath Wooten, Esq.Ross Michael Zambon, Esq., and Mohammed Omar Badwan, Esq. led the litigation team on behalf of Saccameno.”

And I ask again: WHY DO OCWEN DOCUMENTS AND “BOARDING PROCESS” GET ANY LEGAL PRESUMPTION ON SCANT TESTIMONY AND EVIDENCE THAT WOULD NOT BE ACCEPTED AS FOUNDATION IN ANY COURT OTHER THAN ONE IN FORECLOSURE PROCEEDINGS? With this verdict and dozens of other verdicts, settlements, lawsuits and whistleblower  news stories has establishing a crystal clear pattern of conduct of fake foreclosures based upon false documentation, false posting of payments and a clear mission to seek foreclosure whether the homeowner is current in payments or not.

The many cases akin to this one against OCwen and US Bank should be served up to judges hearing foreclosure cases with a single message: the foreclosures you are allowing are wrongful. Your decisions are giving rise to many lawsuits for damages.

GO TO LENDINGLIES to order forms and services

Let us help you plan your answers, affirmative defenses, discovery requests and defense narrative:

954-451-1230 or 202-838-6345. Ask for a Consult. You will make things a lot easier on us and yourself if you fill out the registration form. It’s free without any obligation. No advertisements, no restrictions.

Purchase now Neil Garfield’s Mastering Discovery and Evidence in Foreclosure Defense webinar including 3.5 hours of lecture, questions and answers, plus course materials that include PowerPoint Presentations. Presenters: Attorney and Expert Neil Garfield, Forensic Auditor Dan Edstrom, Attorney Charles Marshall and and Private Investigator Bill Paatalo. The webinar and materials are all downloadable.

Get a Consult and TERA (Title & Encumbrances Analysis and & Report) 954-451-1230 or 202-838-6345. The TERA replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).

GO TO WWW.LENDINGLIES.COM OR 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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Hat Tip Greg da’ Goose

Case Number: 1:16-cv-05278
Court: Illinois Northern
Nature of Suit: 423(Bankruptcy Withdrawl)
Companies:
Ocwen Financial Corporation
U.S. Bancorp

see OCWEN BANGED WITH $3.8 MILLION VERDICT

This case shows that juries are still angry about the 2008 meltdown and that the entire burden was shifted to homeowners and taxpayers — who “bailed out” financial institutions that had no losses.

And it also shows that lawyers can get rich by charging contingency fees in wrongful foreclosure actions that most lawyers avoid or rush to settlement. It provides ample encouragement for homeowners to sue and for lawyers to take the cases.

So for those of you who are  contemplating filing a wrongful foreclosure action against Ocwen, or U.S. Bank or any of the other players that are acting in concert with Ocwen, here is a case that no doubt will be settled under “seal of confidentiality” (like thousands of others). I think it is high time for borrowers to pool their complaints in either a class action or mass joinder action.

And here are some of the causes of action that could be filed that a federal jury found were reasons enough to award $500,000 in compensatory damages and $3 Million in punitive damages:

  1. Breach of contract
  2. RESPA violation (failure to respond to QWR)
  3. FDCPA violations
  4. Violation of state law — Illinois Consumer Fraud Act: Unfair and deceptive acts.

There are many other causes of action that could be filed. Each case needs to be evaluated as to which causes of action are most appropriate for the subject “loan”, most of which have resulted in substantial verdicts.

And don’t forget the role of US Bank whose name is used as trustee of a trust that  either doesn’t exist, doesn’t own the debt or both. US Bank is paid a fee to pose as trustee not to BE trustee.

See also

https://www.prnewswire.com/news-releases/atlas-consumer-law-secures-3-582-000-jury-verdict-obtained-by-monette-saccameno-a-resident-of-cook-county-illinois-and-against-ocwen-loan-servicing-llc-a-national-mortgage-loan-servicer-300628541.html

https://cookcountyrecord.com/stories/511388869-jury-awards-3-5m-to-woman-who-claimed-loan-servicer-mishandled-mortgage-during-after-chapt-13-bankruptcy

Ocwen (OCN) Receives Daily News Sentiment Rating of 0.15
https://www.thelincolnianonline.com/2018/04/13/ocwen-ocn-receives-daily-news-sentiment-rating-of-0-15.html

https://www.leagle.com/decision/infdco20180410901

Saccameno v. Ocwen Loan Servicing, LLC et al, No. 1:2015cv01164 – Document 265 (N.D. Ill. 2018)
DEFENDANTS’ MOTION FOR JUDGMENT AS A MATTER OF LAW Document #: 265 Filed: 04/09/18
https://www.gpo.gov/fdsys/pkg/USCOURTS-ilnd-1_15-cv-01164/pdf/USCOURTS-ilnd-1_15-cv-01164-3.pdf

Saccameno v. Ocwen Loan Servicing, LLC et al, No. 1:2015cv01164 – Document 231 (N.D. Ill. 2018)
MEMORANDUM Opinion and Order Signed by the Honorable Joan B. Gottschall on 3/9/2018
https://cases.justia.com/federal/district-courts/illinois/ilndce/1:2015cv01164/306387/231/0.pdf?ts=1520678019

Saccameno v. Ocwen Loan Servicing, LLC et al, No. 1:2015cv01164 – Document 152 (N.D. Ill. 2017)
MEMORANDUM Opinion and Order Signed by the Honorable Joan B. Gottschall on 11/8/2017
https://cases.justia.com/federal/district-courts/illinois/ilndce/1:2015cv01164/306387/152/0.pdf?ts=1517249686

Saccameno v. Ocwen Loan Servicing, LLC et al, No. 1:2015cv01164 – Document 75 (N.D. Ill. 2015)
MEMORANDUM Opinion and Order Signed by the Honorable Joan B. Gottschall on 11/19/2015
https://cases.justia.com/federal/district-courts/illinois/ilndce/1:2015cv01164/306387/75/0.pdf?ts=1448015323

US Government Publishing Office
15-1164 – Saccameno v. Ocwen Loan Servicing, LLC et al
https://www.gpo.gov/fdsys/granule/USCOURTS-ilnd-1_15-cv-01164/USCOURTS-ilnd-1_15-cv-01164-0

Why Borrowers Have the Right to Rescind under the Truth In Lending Act

In my opinion any foreclosure judgment or foreclosure sale that took place after a notice of rescission was sent and delivered is completely void and should be treated the same as a wild deed. This is particularly true in cases where courts have ignored the rescission completely and failed to issue an order effectively vacating the rescission. And it is particularly true where the rescission notice was sent within three years of consummation (assuming there was consummation). As with any wild deed, the actions and events subsequent to the void foreclosure judgment and/or void sale are also void. The effect of a rescinded loan is to make the note and mortgage void by operation of law effective the date of mailing or delivery. Void means they don’t legally exist.

Where the rescission was sent within three years of the purported consummation and was completely ignored  I am positive that SCOTUS will agree. And it is at least doubtful, if not legally impossible, that any subsequent law passed by any state legislature could effectively ratify a court’s action where it had no subject matter jurisdiction. In plain language, if the effect is the same as a wild deed, the only way title can be divested from homeowners would be through various state laws governing adverse possession (usually used in boundary disputes, but nonetheless applicable). Absent that, homeowners who have sent notices of TILA Rescission remain the legal owners of the property, even it goes back many years.

The banks know and understand this. They have lobbied extensively and successfully in state legislatures to bar or limit actions to “take back” title. By doing so they distract from the main issue, to wit: homeowners already have title by operation of law and thus need make no claim in court or otherwise. That was the whole point of the TILA Rescission statute as confirmed by SCOTUS in Jesinoski.

Bankers are rejoicing over the nearly universal rejection of TILA Rescission in trial and appellate court — with the notable exception of the Supreme Court of the United States, (SCOTUS) who unanimously ruled in Jesinoski that (a) the statute was constitutional, (b) that the statute was clearly worded thus barring “interpretation”, (c) that no lawsuit was needed to make rescission effective, and (d) that the rescission notice is effective on the date of delivery (mailing, if USPS is used).

Any “logic” or rationale that leads to a result contrary to these points is equally void and without merit simply because it is the law of the land from Congress and from the highest court in the land — SCOTUS. All adverse decisions and arguments are based upon the premise that the statute runs against the grain of personal beliefs that borrowers should never have that much power. Without aggressive enforcement of the consumer rights enunciated in TILA, the rights and protections of the statute and regulations are effectively revoked leaving consumers in the same position they were in back in the 1960’s when the law was considered and passed.

While I am certain that SCOTUS will slap down all the courts of the country who tried imposing limits and restrictions on TILA Rescission, just as it did in Jesinoski, that doesn’t mean that that all cases would be reversible based upon Jesinoski and the next decision.

This is especially true when a court considers TILA Rescission as a claim instead of an event effective by operation of law — just as the statute says it is. The effect on procedure and burdens of proof is enormous.

If you regard it as a claim asserted by the borrower, then the borrower must prove that the rescission was properly sent and for good reasons.

If you regard it as an event, then it is the “lender” who must file a claim seeking to set it aside. The TILA Rescission statute and SCOTUS both state the same thing: rescission is an event that is effective upon mailing (delivery).

The burden is clearly on the party claiming to be a lender to file a claim seeking to vacate the rescission which has same effect as a court order or statutory law. But they must plead and prove standing without using the note and mortgage as the foundation for their assertion of legal standing.

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

Purchase now Neil Garfield’s Mastering Discovery and Evidence in Foreclosure Defense webinar including 3.5 hours of lecture, questions and answers, plus course materials that include PowerPoint Presentations. Presenters: Attorney and Expert Neil Garfield, Forensic Auditor Dan Edstrom, Attorney Charles Marshall and and Private Investigator Bill Paatalo. The webinar and materials are all downloadable.

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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In the 1960’s Congress was faced with a problem. The banks were forever seeking ways to deceive borrowers in increasingly complex loan transactions. Congress was passing TILA, but in order to have any effect in protecting consumers, a compliance enforcement mechanism was needed.

One choice was to create a massive new federal government agency to enforce compliance with the new Truth in Lending Act (TILA). Nobody took that seriously because of the huge expense and logistical problems in analyzing the closing statements on each loan and selectively auditing loans during their term to see if the disclosures were correct or had been false or misleading. Tens of thousands of people would need to be hired, trained, and educated. Systems would have had to be invented to keep track of the huge amount of data that would be collected.

The other path was to create a self activating mechanism that would impose draconian penalties on lenders who violate the law and spirit of TILA. Faced with virtual loss of the loan the banks would scrupulously comply. The extraordinary provision gave consumers the right to rescind the transaction if they believed they had been deceived — i.e., that the disclosures were absent, false or misleading (all of which apply to loans during the great meltdown leading up to the 2008 crash).

Key to the effectiveness of the statute is that there was no requirement that the borrower had to be right, inasmuch as this would enable banks to stonewall even further. Nothing was required except that the borrower send a notice of rescission. The entire burden thus falls completely and solely on the “lender” to apply to a court of competent jurisdiction to vacate the rescission, which was effective by operation of law, upon mailing or delivery.

Congress rejected any notion that consumers had to go see a lawyer or a court in order to get redress for the consumer’s perceived grievances. Hence the TILA Rescission statute was passed stating that the rescission was effective by operation of law upon delivery (or mailing). 

For years the banks had internal controls that usually assured compliance, although there were some major exceptions. Then starting in the 1990’s the banks embarked on a scheme that required  violations of the protections afforded by TILA. When people sent notices of rescission they were frequently ignored or “contested” by a letter.

In court, judges were driven by a fear that such power delivered into the hands of borrowers with little to lose might destroy the entire socio-economic fabric of the country and that the “sanctity of contract” must be upheld. Accordingly judges began to “interpret the statute thus imposing limits and restrictions that effectively denuded the primary objective of the legislation — to punish participants in the lending process for withholding disclosures or making false and misleading disclosures.

In short, as pointed out by SCOTUS in the Jesinoski decision  judges were attempting to legislate from the bench by proclaiming what the judge thought the statute should have said. SCOTUS truck down all the restrictions and limitations invented by the courts and appellate courts that affirmed such decisions. Still judges try to avoid the draconian results on “lenders” that were intended by Congress and President Johnson. And so the real truth about these loans and these foreclosures is still emerging very slowly.

The practice pointer here is that lawyers should not present rescission as a claim for any relief except perhaps enforcement of TILA Rescission duties imposed on lenders. The relief has already been granted by Congress. Don’t fall into the trap of alleging the rescission as a claim in a complaint or in affirmative defenses. The proper motion is a motion to dismiss. In the absence of an actual pleading setting forth standing and the timely contest (20 days) of whether the rescission should have been sent, the “lenders” either must admit they are not lenders or comply with the three duties imposed by delivery of  TILA Rescission:

  1. Return of moneys to the homeowner/borrower
  2. Return of the canceled original note
  3. Cancellation and release of the mortgage recorded in public records.

It is only after the lender has complied or a court has vacated the borrower’s rescission that the creditor or obligee can demand money from the homeowner/borrower. But here is the rub: Under TILA Rescission, there might to recover money arises from either timely compliance with the statue or an order vacating the rescission. The right to receive money under TILA Rescission arises from the rescission statute, not the debt, note or mortgage. If no claim has been made under TILA within 1 year, then the debt is unenforceable. And no claim can remade without compliance with the TILA Rescission statutes.

 

 

 

 

 

Securitization and Standing

Like other decisions establishing  the law of the land, the decisions of SCOTUS are often taken as advisory or optional. Nevertheless TILA Rescission and Article III standing have been affirmed by the Court of last resort. Reluctant judges in trial and appellate courts will get their hands slapped one more time but all the bad prior decisions and their consequences  are neither reversed nor redressed.

Standing is pretty easy — it must be alleged in facts that will be proven at trial. If it isn’t alleged or isn’t proven at trial, the Court lacks jurisdiction to do anything other than to dismiss the claims of any party seeking satisfaction because they have no claim for redress.

Let us help you plan your defense strategy, discovery requests and defense narrative: Dial 954-451-1230 or 202-838-6345. Ask for a Consult.

Purchase now Neil Garfield’s Mastering Discovery and Evidence in Foreclosure Defense webinar including 3.5 hours of lecture, questions and answers, plus course materials that include PowerPoint Presentations. Presenters: Attorney and Expert Neil Garfield, Forensic Auditor Dan Edstrom, Attorney Charles Marshall and and Private Investigator Bill Paatalo. The webinar and materials are all downloadable.

Get a Consult and TEAR (Title & Encumbrances Analysis and & Report) 954-451-1230 or 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.

See 2017 US Supreme Court case defining burden of PLEADING legal standing: Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645, 1650-1651 (2017)

There are three elements of standing:

  1. The party claiming the ultimate relief (like the party seeking foreclosure) MUST have already suffered an injury in fact — one that is “concrete and particularized.” This means that alleging a default is not enough. The presumption that the pleading party suffered economic loss only arises if they plead and prove that they had a right to payment which was not received, thus constituting a default. Nobody alleges that because it isn’t true. Nobody is entitled to any satisfaction in court without pleading and proving facts that the alleged default actually caused financial loss (injury) to the party seeking relief (or the disclosed principal in an agency relationship with the party seeking foreclosure). This feature is particularly twisted in nonjudicial states where the party makes no claim for foreclosure; instead they merely file papers in the county records and put the home up for sale. Standing is nonetheless required in both judicial and nonjudicial states — a fact often ignored in most courtrooms.
  2. The injury must be traceable to conduct of the party alleged to be in default or breach. Hence the party seeking satisfaction through foreclosure must establish that they had a legal right to receive the payments that were specified in the note and mortgage (deed of trust) either because they own the debt or because they represent someone else who owns the debt. Failure to reveal the party who owns the debt leaves the court without any pleading or proof as to who, if anyone, was financially injured when the homeowner stopped making payments to a party that could possibly be the authorized representative to receive such payments and also could possibly not be the authorized party to receive payments. The presumption of injury only arises  when the right to receive payments is both alleged and proven. Once again, courts have twisted this element beyond recognition. The missing creditor is presumed to exist, without a name or any other identifying characteristics.
  3. The injury, once established, must be likely to be redressed by a favorable judicial decision. So if the foreclosure occurs and the sale is made, what will be the ultimate result of liquidation of the property. The answer is that unrelated parties will enjoy the fruits of foreclosure, which is why servicers are under strict instructions not to reveal the recipient of funds paid by putative borrowers. The proceeds from the sale of the property must be claimed by the party seeking foreclosure or claimed by the party on whose behalf the foreclosure was pursued (assuming that party is the owner of the debt and not another conduit). The trusts are all conduits if they claim REMIC status. That is why there are never allegations that the trust owns the debt or is anything other than other than a “holder.” The right to enforce appears to be presumed but is inaccurate since the Trustee and the Trust were absent from any transaction involving the subject loan. So if the proceeds are not going to the party who loaned money and are not going to anyone who bought the debt, there is no subject matter jurisdiction. Here again the courts are twisting laws beyond comprehension by presuming everything that is not susceptible to proof.

The side note is that it does not appear that the REMIC trusts actually exist or were involved in any financial transaction relating to the loans that lawyers claim it owns. SO the claimant does not exist leaving the court without any semblance of jurisdiction if the pleadings are scrutinized for allegations that the “Trust” is a REMIC business trust organized and existing under the laws of the State of New York, for example. They don’t make that allegation — common to all other pleadings in other civil cases — because the trust is merely a graphic image having no significance except for the purposes of foreclosure.

 

THE CURRENT BIAS: EVEN IF HOMEOWNER WINS, NO FEE RECOVERY

The continuing bias in favor of the banks’ fraudulent scheme of mortgages and foreclosures gives rise now to a nutty theory. The logic seems so obvious to the courts and yet it is erroneous. In a nutshell the theory goes, if a homeowner eventually proves that the parties attempting to foreclose have nothing to do with the loan, then the homeowner is barred from receiving fees under the contract.

The fact that the foreclosing party represented and fought for status as a party with standing and was entirely dependent upon their ability to enforce contract (note and mortgage) means nothing to the courts. They want to set up whatever obstacles they can to valid defenses  showing the homeowner owes nothing to the parties who are foreclosing.

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.
—————-

see 4th DCA Reaffirms No Fees to Prevailing Homeowner

Essentially the courts are punishing homeowners for winning the case and letting the real offender go free without any form of sanctions or payment to the homeowner. By disallowing fees to the homeowner they make it less likely for homeowners to raise meritorious defenses including the key defense that the parties seeking foreclosure are scamming the court.

The logic of the court is that once you prove that the foreclosing party has no factual or legal relationship to the loan, you have destroyed your claim to enforce fees via statute, contract or both. This is also in keeping with the finding that fraud, forgery and fabrication once proven, means nothing in terms of clean hands.

The Courts could have shut down the flood of foreclosures that started 12 years ago and continues to this day. All they needed to do is continue their procedure of making absolutely certain that the foreclosing party actually had a right to foreclose. Instead of being worried about fraudulent claims, the courts are worried about meritorious defenses. THAT is the opposite of due process. It is a political decision instead of a legal one.

First the basis of this modern “doctrine” is that proof that the forecloser is a stranger means that there are no remedies to the victim of fraudulent behavior. That is simply due process in reverse. Once someone files something in the courts or county records, they are submitting themselves to the jurisdiction of the court, even if it is based upon fraudulent claims based upon forgeries and fabrications. If this “doctrine” were true and sustainable it  would present an optional basis to avoid penalty for lies told in court. They can do it and if they are caught they pay nothing.

Second, the forecloser has hoisted itself on its own petard. By proclaiming that it is the only party to a contract entitled to enforce it, it must suffer the consequences of failing to prove that — especially if the evidence shows, as in the case cited above in the link, that the failure was not just wrong or negligent, but rather intentional and fraudulent. The courts are rewarding bad behavior.

Third, fees, costs and other sanctions should be available against a party who lies to the court about a transaction and loses the case because they were found to be lying.

The entire concept of denying the existence of a contract when both parties agreed in court that the contract existed, is out of Gulliver’s Travels. Perhaps what is needed is some pleading in affirmative defenses or counterclaim that the action is frivolous and fraudulent, seeking fees for abuse of process or wrong full foreclosure. But that again puts the intolerable burden of litigating the right to title and possession of a homestead on the homeowner.

The courts are interposing an issue that should never come up, to wit: if you own your home and you have obvious defenses against foreclosure that shows that the party attempting to foreclose is lying to the court, you need to factor in the high cost of litigation before you defend — or get out and let the the liar enter the house.

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.”

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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.

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