Adverse Possession vs Cancellation of Instrument and Quiet Title

In the final analysis, the only way to smoke out the banks on their fraudulent claims as “creditors” or “agents of creditors” is to create a situation where the creditor must be disclosed. In those cases where judges have ruled in discovery or ruled on the right to prepay, subject to identification of the creditor, the cases have all settled under seal of confidentiality. There are thousands of such cases buried under side agreements requiring “Confidentiality.”

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I have been seeing a number of people adding Adverse Possession to their theories about Quieting title. So let me say first that an order granting quiet title to a homeowner whose title is encumbered by a recorded mortgage or deed of trust is practically impossible not only because judges don’t want to grant it, but for the more important reason that quiet title is not legally sound strategy for homeowners seeking defend their homes from foreclosure.

In order to quiet title, one would need to allege and prove by clear and convincing evidence that the mortgage or deed of trust should never have been executed or recorded in the first place. Anything less than that does not deserve quiet title declaration from any court. The fact that a certain party purports to have authority to enforce the mortgage or deed of trust when in fact they don’t have such authority is damn good reason not  to let them enforce the mortgage or deed of trust. But that does not mean that the instrument is void.

Here is the response I gave to a question about adverse possession:

Adverse possession does not seem to apply to this situation. But it is possible that you could get traction by filing a lawsuit to cancel the DOT (Cancellation of Instrument) and maybe even get a order quieting title to your name. This is not simple and the requirements and elements of such claims are difficult to fulfill.

Adverse possession is usually utilized in boundary disputes.
A mortgage or a deed of trust is an interest in real property. And where we are dealing with the deed of trust,The trustee is receiving title to the property. So technically you are probably correct. But when you look deeper, You will see that adverse possession does not apply.
The transfer of title to a trustee under the deed of trust divests the homeowner of title. Under the terms of the DOT you are entitled to live there and act, for all  purposes, as though you are the title owner including in a foreclosure proceeding. Hence several elements of adverse possession are not met especially “adverse,” since you have express permission under a contract to be there and to act as the title owner.
ELEMENTS OF ADVERSE POSSESSION: (NOTE — the “title owner is the DOT trustee)
  • Continuous
  • Open
  • Notorious
  • Peaceful, Peaceable
  • Hostile (claiming title against the interest of the party who actually has title)
  • Adverse (no permission or contractual right to assert title against the party who is seized with title).
  • Exclusive (barring claims or use by the actual title owner
  • Visible (putting a fence on your neighbor’s yard, ignoring the property line)
  • Actual (not implied)
But the fact that the DOT conveyed title to a real trustee on behalf of a false beneficiary is probably the basis for a lawsuit to cancel the instrument (if you can prove your allegations) and then get an order declaring the title is quieted, free from the encumbrance of record that is declared by the judge to be void.
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You need to be careful though about your conclusion that the DOT was void. This involves several factual questions that are not obvious. Even a void instrument could conceivably be valid if it contains a defect that is corrected or could be corrected by affidavit pursuant to local law.
 *
Your argument would be that no such affidavit was ever offered. Thus even after you filed your lawsuit, they failed or refused to make any corrections.
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Their argument will circle around third party beneficiary, “standing,” and the fact that SOME party could enforce it if they could show that they were the intended beneficiary despite the recitation on the face of the DOT.
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This is not the basis for a simple legal argument. Each side must allege and prove their factual (what happened, when, where, who was involved and why) allegations by at least a preponderance of the evidence and most probably, legal or not, the homeowner would be held to a higher standard of clear and convincing evidence informally or formally because the recorded documents carry a “presumption” of authenticity and validity that the homeowner must overcome.
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Academically speaking such claims are well-founded. But in practice judges look at such claims as gimmicks to get around a legitimate debt. In order to combat that we must figure out a way to bring in a party who has a legitimate claim to represent the unknown and undisclosed creditors.
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The banks have successfully cast the money trail in obscurity. The banks are committing fraud with each foreclosure in my opinion and in the opinion of everyone else I know that has analyzed the securitization of mortgage debt. But they have made it appear that there is nobody other than the bank’s pet entities (the so-called trusts) to play the role of creditor.

Wells Fargo “Lending” Securities It Didn’t Own

Translation: WFB was the “custodian” of alleged “mortgage-backed” certificates issued for the benefit of investors who paid billions of dollars for ownership of the certificates. WFB “Loaned” those alleged securities to brokers. The brokers in exchange provided “collateral” the proceeds of which were reinvested by WFB. In short, WFB was laundering the investors money for the sole benefit of WFB and not for the investors who owned the certificates and certainly to the detriment of the brokers and their buyers of derivative instruments based upon the loan of the securities.

This case reveals the flowering of multiple levels arising from false claims of securitization. First WFB issues certificates from a fictitious trust that owns nothing. Then it keeps both the money paid for those certificates and it keeps the certificates as well. On Wall Street this practice is called holding securities in “street name.” Then WFB engages in trading on securities it doesn’t own, but which are worthless anyway because the certificates only represent a promise from the REMIC trusts that exists only on paper.

It is all based upon outright lies. And that is why the banks get nervous when the issue of ownership of a debt, security or derivative becomes an issue in litigation. In this case the bank represented the trades as ownership or derivative ownership of “high grade money market instruments” such as “commercial paper or bank time deposits and CDs.”

None of it was true. WFB simply says that it thought that the “instruments” were safe. The lawsuit referred to in the linked article says they knew exactly what they were doing and didn’t care whether the instruments were safe or not. If the attorneys dig deeper they will find that the certificates’ promise to pay was not issued by an actual entity, that certificates were never mortgage-backed, and that WFB set it up so when there were losses it would not fall on WFB even though WFB was using the named trust basically as a fictitious name under which it operated.

So I continue to inquire: why does any court accept any document from WFB as presumptively valid? Why not require the actual proof?

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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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Hat Tip Bill Paatalo

see  WFB Securities Lending Scheme

The investments by WFB went into “mortgage backed assets.” Really? So let’s see how that works. First they create the certificates and sell them to investors even though neither the investors nor the trust have any interest in mortgage assets. Then they “loan” the same certificates to brokers, who provide collateral to WFB so that WFB can “reinvest” investor money using commingled investor money from a variety of sources.

Then derivatives on derivatives are sold as private contracts or insurance policies in which when the nonexistent trust assets are declared by WFB to have failed, in which WFB collects all the proceeds. The investors from all layers are screwed. And borrowers, as was originally planned, are screwed.

The lender to the borrower in the real world (where money is exchanged) are be the investors whose money was in the dynamic dark pool when the loan of money occurred. But the investors have no proof of ownership of the debt because of the false documents created by the “underwriter” bank.  The money from the second tier of investors is used to “purchase” the certificates WFB is “printing”. And then derivatives and hybrid derivatives and synthetic derivatives are sold multiplying the effect of every certificate issued. Such has the control over currency shifted from central banks who control around $8 trillion of fiat currency to the TBTF banks who boast a shadow banking market of $1 quadrillion ($1,000,000,000,000,000.00).

This every loan and every certificate is multiplied in the shadow banking market and converted into real money in the real world. Based upon prior securities analysis and review of disclosures from the publicly held banks it thus became possible for a “bank” to receive as much as $4.2 million on a $0.1 Million loan (i..e, $100,000). But in order to maintain the farce they must foreclose and not settle which will devalue the derivatives.

Then having done all that through control of a dynamic dark pool of investor money they must of course create the illusion of a robust lending market. True this particular case involves a business acquired when WFB acquired Wachovia. But WFB acquired Wachovia because it was the actual party in control of a false securitization scheme in which Wachovia acted primarily as originator and not lender.

WFB barely cares about the interest rate because they know the loans that are being approved won’t last anyway. But its trading desk secures extra profits by selling loans with a high interest rate, as though the loans had a low interest rate thereby guaranteeing two things: (1) guaranteed defaults that WFB can insure and (2) buying low (with investor money) and selling high (to investors).

All of which brings us back to the same point I raised when I first wrote (circa 2007) about the systemic fraud in securitization not as an idea, but in the way it had been put into practice. Using established doctrines in tax litigation there are two doctrines that easily clear up the intentional obfuscation by the banks: (1) The single transaction doctrine and (2) the step transaction doctrine. Yes it is that simple. If the investors didn’t part with their money then the loan of money would have never reached the desk of the closing agent. If the homeowners had not been similarly duped as to who and what was being done, they would never have signed on the dotted line.

To assume otherwise would be the same as assuming that borrowers were looking for a way to waste money on non-deductible down payments, improvements and furniture in exchange for a monthly payment that everyone knew they couldn’t afford.

 

DARK POOLS OF SECURITIES AND MONEY FUNDED MORTGAGE LOANS

In answer to questions frequently asked of me, the term “dark pool” was not coined by me nor was it discovered by me as an instrumentality of obscuring financial transactions. I have understood the workings of dark pools since my Wall Street days. But back then, in the 1960’s and 1970’s they were not so common.

What I did discover was a dark pools were in widespread use in the era of false claims of securitization — a discovery provoked by reading the prospectuses and pooling and servicing agreements (Trust instruments) for the issuance of of “certificates” a/k/a “mortgage bonds.”  There, in black and white, was a “reserve fund” consisting of money from investors who bought the certificates from underwriters using the fictitious name of a Trust that never existed. And it was stated therein that investors could be paid from this reserve — i.e.,. paid using their own money.

There were virtually no restrictions on the use of the “reserve fund.” The more I read and the more I asked my tipsters, it became very apparent that the reserve funds were interconnected, that the Trusts did not exist and so the reserve fund was actually a dark pool — a trading ground for securities and money. It is also the locale where the the most gross violations of law occur because they are hidden from public view and often hidden even from the financial statements of the participants.

Let us help you plan your cross examination, 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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see DARK POOLS DEFINED — https://ag.ny.gov/press-release/ag-schneiderman-announces-landmark-resolutions-barclays-and-credit-suisse-fraudulent

Securitization was at first disclaimed by all the banks and servicers 10-15 years ago. Most people don’t remember that. The defense was “What Trust?”

Forensic researchers then discovered that underwriters or others had uploaded “securitization” documents to the SEC website and later added mortgage loan schedules, (that trend out to be false and fabricated) in which certain “REMIC” trusts claimed ownership of the “mortgage loans.”

Going with the flow, the banks and servicers then filed foreclosures in the name of the nonexistent trusts — and they got away with it. Today we have a mixed blend of claims of trust ownership of loans (i.e., the underwriter using the fictitious name of the nonexistent trust) and claims of corporate ownership of loans where a major bank or “successor” trust initiates foreclosure.

But in the end what they filed in foreclosures was antithetical to the claim they were making. None of the Trusts ever acquired loans from a settlor or trustor. Nor did any trust receive the proceeds of investor capital. By definition, securitization never actually happened. Adam Levitin calls this “securitization fail.”

The true money trail starts with the dark pool consisting of all proceeds of the sale of certificates or bonds issued by the underwriter in the name of the nonexistent trust. Hence the money is not in the trust; it is in the dark pool where money and trading, deposits and withdrawals occur in great frequency. Hence the underwriter has performed a Texas two step — on the one hand it claims that ownership is in the name of the fictitious REMIC Trust while at the same time funding the origination and acquisition of loans from the dark pool.

This is critically relevant to the foreclosures. In virtually all cases, the money came from the dark pool (not a trust) to originate (not allowed under the prospectus) or acquire loans. Careful securities analysis reveals a simple fact, to wit: that there IS a money trail but it leads back to the dark pools. Hence the paper trail that leads to the successors and “trusts” are documenting transactions that never occurred between the parties named on the written instruments. This in turn means that the certificates and bonds issued in the name of the named trust were neither backed by notes or mortgages and were most certainly not backed by debts.

A careful reading of certificates indicates that most of them have a disclaimer of any interest in the underlying debts, notes and mortgages. The investors acknowledge that all they are receiving is a promise to pay issued by in the name of the trust (but not issued By the trust). The real party in interest is the underwriter who also poses as “Master Servicer” for assets owned by the named Trust. But there are no such assets; so in the end we should be dealing with, and litigating with the underwriter.

Investors gave money to the underwriter believing their money would be deposited into the “REMIC” Trust. It wasn’t. Instead their money ended up in a dark pool with no rules. The money in the dark pool should be considered as deposits by investors rather than investments since the certificates were bogus. To consider it otherwise would be to deprive investors of the last vestige of ownership of the debts, notes and mortgages that were to be conveyed into the trust in exchange for the money paid to the “trust” by investors and then paid out by the “Trustee.” No such thing ever happened.

So the answer to the frequently asked question of “then where did the money come from” is that it came from an unregulated, undisclosed dark pool invented for the purpose of defrauding investors and homeowners. And the answer to the the other frequently asked question of “how do I prove that” is you don’t prove it. You prove the inevitable gaps that show that no financial transaction occurred anywhere along the paper trail.

Remember: documenting a false transaction doesn’t make it real. The document (note, mortgage, assignment, etc.) is either tethered to a real transaction in the real world that can be disclosed or it is untethered to any real transaction. If there is no real transaction in the real world the document becomes only a piece of paper. If there is a real transaction in the real world that your opposition can prove resulted in the creation of the document, then they win — simple as that. If there is no such transaction then the claimed liability does not exist, hence there can be no default. You can’t default on a nonexistent obligation. But obviously the investors have an equitable right to the loans funded with their money.

 

Subpoena Compliance Officer at the time the loan was made

Last night on the Neil Garfield Show, Charles Marshall brought up the idea of the use of the subpoena power of the court. I agree that this is a way of lawfully penetrating into the inner recesses of the alleged loan process. People ask me to whom should they issue a subpoena? Opinions vary. But I would say the person who served as compliance officer at the time was being “underwritten.” You’ll probably find out that loan was not underwritten by the originator. But more than that you will find that there exists a witness who can say what really happened at the alleged “loan closing.”

See below for a short list of questions that might be posed at the deposition of such a witness.

Let us help you plan your 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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SeePAPER CHASE AND MONEY CHASE — THE CASE AGAINST CHASE

There are dozens of questions to ask. But I think the following list is a guide toward strategically posing the right questions:

  1. Do you review all prospective loans?
  2. What risks are you looking for? Define them.
  3. What are the primary risks of loss in closing a loan in today’s marketplace?
  4. Does the prospect of “sale” of the debt, note or mortgage affect your risk analysis?
  5. Is the bank using a warehouse lender?
  6. Is the bank making the loan or playing the role of originator?
  7. Is the bank the intended ultimate secured party on the mortgage?
  8. Is the bank the intended ultimate recipient of monthly payments as described in the note?
  9. What is the annual rate of mortgage originations in principal dollars for the bank.
  10. Does the bank have buy-back exposure on its loan originations?

Deloitte and Touche Pays $149.5 Million Settling Claims of Audit Failure of Taylor Bean and Whittaker

One of the first cases I ever handled involved TBW in 2008. As usual they filed a lost note count in their foreclosure complaint. And as is required, they offered to indemnify the homeowner if someone else showed up with the original note. With financial firms dropping left and right, my position was two fold: (1) that an indemnification from a firm that was clearly in trouble as reported in the news was of dubious value and (2) that even if that wasn’t the case neither their complaint  nor their affidavit recited any facts about when the loss occurred, who was in possession of the note, whether the possessor had rights to enforce when the note was “lost” etc. TBW folded, went into bankruptcy shortly thereafter and its principals went to prison.

But throwing TBW under the bus, as much as they deserved it, takes nothing away from the fact that everyone was doing what they did. The only difference was they got caught and could not effectively indemnify the homeowner in the event they were lying about the possession of the original note — something that as proven beyond a reasonable doubt in the criminal trial of the execs..

Let us help you plan your 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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Hat tip to Dan Edstrom

see  Multiple Sales of Same Loans Force Auditor to Cough Up $149.5 Million

PR shows like this one became one of the ways that the banks were able to throw a curtain over the real customs and practices of the industry — most of which were virtually identical to TBW. The impression from the collapse and prosecution of TBW and its executives implies that this was an unusual event — selling the same “loan” multiple times.

But close examination of the many claims of securitization of debt shows that exactly the same thing was happening in the rest of the industry. In fact, that is where the enormous “profits” came from as reported from their “trading desks.” The only difference is that TBW was blatant about it by using copies of notes that were repeatedly sold, not once, but multiple times.

The leverage of making multiple sales went to ridiculous heights — 42 times in the case of Bear Stearns mortgage related activities. Yes you read that right. That $200,000 loan produced around $8 million in “profit.” Of course none of this was disclosed to the borrower whose name and financial reputation would be used directly or indirectly to accomplish these “sales.” They did it by hiding behind “derivative” documents rather than the actual loan documents, but they also did what TBW did. But while TBW was exclusively faking sales, investment banks mixed up the process such that, if caught, they would be able to say that some of these things happened because of a failure of controls and that they will now correct it.

As the MBS marketplace slowed down and had some hiccups many of the contracts or derivatives came due and Bear Stearns simply didn’t have the money to honor them despite the enormous “profits” earned earlier. This also is a possible indicator that leverage was even higher than what has been reported. As the buying frenzy slowed down and investors suddenly became aware that they were holding certificates issued by entities that didn’t exist and were never active, the buying stopped — and like any Ponzi scheme, the entire infrastructure came crashing down.

Practice Note: So what all of this means is that questions should be posed to parties who file foreclosure actions. But you need to wade through the multiple servicers and multiple “assignees” and multiple “endorsees” and multiple “Underwriters of bogus RMBS to ask the simple question: how many contracts or securities have been issued with the respect to the subject loan? It’s relevant because it is asking whether the foreclosing party has sold its rights to an undisclosed third party. In 99% of all cases, the “REMIC Trust” was never used and the underwriter has already entered into various contracts, sales, and issued “derivatives” in which the PAPER was sold but the underlying debt, if it still exists, was never subject to any transfer, contract or derivative.

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.

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.

 

 

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