New York and California Foreclosures: Rod Ciferri Guest on Neil Garfield Show Tonight!

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Tonight we talk about navigating the foreclosure process with our guest Rod Ciferri, a New York lawyer transplanted to California. That means we will be talking about judicial and non-judicial foreclosure, the mess created by the banks, rescission, enforcement of rescission, and what gets traction in foreclosure defense. His postings on this blog shows that he has a deep understanding of securitization and securitization fail.

Rod’s number is 650-346-3741. If you are looking for a lawyer who gets it in New York, look no further.

DISCOVERY in Foreclosure Cases: Aggression can be a good thing

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

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see http://www.insidecounsel.com/2015/05/12/litigation-management-for-the-in-house-generalist

Discovery can be grouped into three categories: oral discovery (depositions), written discovery (interrogatories and requests for admission), and visual inspection (requests for production). These are collectively referred to as “discovery requests.” As a handy rule of thumb, you can think of discovery requests as requests to either discuss something (depositions), answer something (interrogatories), admit or deny something (requests for admission), or produce something (requests for production). You will be on both sides of discovery—you get to send discovery requests to the other party or parties, and you will receive them from the other parties. The tips and thoughts below are from the perspective of a party receiving discovery requests.

For most lawyers, discovery is simple — ask a bunch of questions or demand a visual inspection. The problems start after that. And what the banks have been counting on with considerable success is that the lawyer won’t do the REST of the work. The Banks and Servicers are going to object all your demands or nearly all of them. What then?

A Motion to Compel or a notice of hearing on the objections should be filed as early as possible. Very often the Motion to Compel is denied or the objections are sustained — most often because the attorney for the homeowner did not make the case for why he needs this information from the opposing side. The usual reason why the order is against the homeowner is the question of relevance and then you have confusion over (1) the requirements of pleading (2) the scope of discovery that is allowed and (3) proof required at trial. If you want to leave your footprint in the courtroom on this you should have a memo and cases that support your position. Discovery is usually liberally allowed. But in foreclosure cases, many judges are improperly limiting discovery because they think they know everything that is going to happen anyway.

As to the requirements of pleading — the court frequently conflates pleading requirements with proof requirements at trial. basically they treat anything the banks and servicers are pleading as already established, so there is no reason to expand discovery beyond what is already assumed. It is circular reasoning but it is prevalent. The fact that a complaint was filed in a judicial state or a notice of default was filed in a non-judicial state does NOT mean that the case is over. The fact that they can survive preliminary motions also does not mean the case is over. All that has happened is that they have fulfilled the bare essentials of pleading and procedure. They must still prove their case. So if they properly plead the facts for standing, that doesn’t mean you can’t inquire — that is exactly within the proof required at trial. But beyond that you can ask broader questions which might lead to the discovery of admissible evidence.

While both the attorneys and the judges might contest your right to receive information about the origination or sale of the loan, you are absolutely entitled to inquire about whether anything they said is true or if it is all a lie. And the only party who has that information, and the only party resisting with all their considerable might is the originator and the participants in the chain of the alleged securitization or even in the chain of the securitization which is denied by them. The scope of discovery is intended to be broad but to prevent mere fishing expeditions that are intrusive on the other party toward no end. They will argue that holding the note closes the issue and the judge will agree with them until you pull out the statute and point out that the proof of the actual loan is necessary in all cases except where they allege to be the holder in due course, which they never do. And having not alleged that they are obviously not alleging that they were a purchaser of the loan in good faith and without knowledge of the borrower’s defenses and before default, it is perfectly in order for you to ask which elements of a holder in due course don’t they meet and why. Since the note and mortgage arose from an alleged closing, it is perfectly acceptable for you to ask “a closing of what and for whom?” Why shouldn’t the borrower know who the lender really was? After all TILA requires exactly that disclosure. Some “successor” down the line does not get greater rights than the original lender had unless they have HDC status.

And this leads to the proof required at trial. If the alleged borrower denies that the loan contract ever took place, then the burden is on the “holder” to prove that it did take place. They must prove the loan. They must prove the funding of the loan. They must prove that they are in fact the lender. Does the court really want to grant a foreclosure against a borrower by someone who has never spent one dime lending money to the borrower, never acquired any authority from the true lender top collect and enforce?

What I know is that virtually all mortgage loans were sham transactions starting at around 2002 and continuing right up tot he present. It is up to the lawyer to educate the judge and make a clear record on appeal. That is done by both getting answers to discovery and by not getting answers that the banks and servicers are stonewalling. Don’t say you are ready for trial when you have not received answers to discovery (assuming you have already attempted to compel those answers).

I have said for years that these cases will end during discovery. either you get the order you want at which point the other side immediately settles — or you don’t get the order you want and you need to prepare your client for a loss at trial and then an appeal. Aggression during discovery is a good thing.

RESCISSION: What will MBS Rating Agencies Do Now?

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

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EVEN IF THE TRUST DID BUY LOANS WHAT IS THE VALUE OF THE BONDS IF THE LOANS CAN BE CANCELED AT ANY MOMENT BY THE BORROWER?

This is going to be interesting. When investors realize that the “securitization” of loans, even as designed is contingent upon the power that a borrower has to cancel the loan things are going to change.

Think about it. We know with certainty that the notice of rescission is effective by operation of law when a borrower drops it in the mail. That means it is the same thing as a contested legal action in which the borrower won the case. Nothing can stop a borrower from dropping a notice of rescission into a mailbox.

We also know that there are two time limitations in TILA rescission. The first is the right of three day rescission where the duties of the “lender” are spelled out. We have seen a multitude of cases in which the “loan” was assigned out before the expiration of the 3 days. So if the borrower wants to cancel the deal, who does he notify? Thanks to Dodd-Frank and the FCPB Rules, notice to anyone in the chain is notice to all.

We also know that there is a three year period in which the borrower can cancel the deal. And we know that there is a common law right of rescission. The rules for enforcing TILA rescission and the rules for enforcing common law rescission are very different. The main difference is that TILA rescission is EFFECTIVE (by operation of law) on the date the notice was sent.

And we know that equitable tolling can extend the three years to many more years than three.

And we know that most REMIC Trusts never were funded, never acquired any loans, never were operational even during the 90 day cutoff period. BUT even if the REMIC trust was funded and purchased the loans, what exactly did they get? The answer is that they received an interest in loans that were underwritten by banks who had no risk in granting the loans. The kicker is that all that “bad” (intentional) underwriting can be undone at the stroke of a pen; and this time it isn’t a Judge or government official that has that power. It is the pen of the borrower that has all that power.

Lastly we know that upon TILA Rescission, the parties in the chain must cough up the canceled promissory note, file a satisfaction of mortgage, and return all monies paid by or on behalf of the borrower. That is a huge liability. Who pays that? Is it the investor because they are now the creditor? Investor appetite for that kind of liability is virtually nil because most of them are stable managed funds (e.g., pension funds that require Triple AAA rated investments). Is it the bank or servicer claiming the right to foreclose or otherwise enforce the note? Banks and servicers won’t like that since they don’t consider themselves the lenders. But under Dodd-Frank, they have trapped themselves. They foreclose and claim all the “benefits” of foreclosure, including deficiency judgments. How can they now say they are not liable for disgorgement required under TILA rescission?

Which brings us to the title of this article. Virtually every loan is subject to a notice of rescission, right or wrong, PLUS the fact that it creates a contingent liability, plus interest, plus attorney fees and maybe treble damages. What investor wants to put money up for an investment that could be canceled anytime by any consumer? What investor wants to put up money for an investment that could create a monstrous liability, relying on the banks to (1) handle the money properly and (2) underwrite and manage the loans properly. There are a lot of “if” in there. And rating agencies don’t like uncertainty.  Under such circumstances rating agencies should either give no rating or give a very low rating.

I don’t know whether the US Supreme Court realized that when they handed down the Jesinowski decision they were utterly destroying the value of mortgage backed and related securities. Knowing what we now know, who would want to buy the old ones, much less touch anything new being offered in the MBS market?

Neil Garfield Show Continues Next Week

I am taking the night off. BUT you can listen to past shows by going to blog.talk radio and click on my show

Try a Personal Injury Lawyer

See article on Graham Legal in Miami: http://www.prweb.com/releases/2015/05/prweb12703161.htm

I have been advising people for quite some time to approach personal injury lawyers for representation in foreclosure defense. They have no preconceived notions about homeowners as deadbeats and they litigate for a living. The contrast with bankruptcy and real estate lawyers is that neither tends to have a lot of court experience. PI lawyers know how to fight.  I am seeing more and more people taking my advice and having good results. And the foreclosure defense business tends to lead to referrals for personal injury work. So the lawyer makes money in foreclosure defense, makes money on the personal injury cases and can even make a ton of money on wrongful foreclosure cases — considering the fact that most foreclosures are wrongful.

Don’t believe everything you read. The number of foreclosures is not going down. But the Bank PR machinery is in a full court press to create the impression that the end of the foreclosure era is now. They pick out areas of the country where they have intentionally held back filing foreclosures and caused the apparent drop in filing in THAT area while they pump the number of foreclosures in another area, attempting to keep the foreclosure issue off the national radar. The truth is that we are barely past the half way point and if we don’t fight back the Banks win.

The Best Brief on MERS I Have Ever Seen.

From Harvard Law School, an amicus brief filed in March exposes the truth about MERS.

see amicus brief in MERS Pa case filed by Harvard

Calling for LAWYERS Willing to take new Clients in Foreclosure Defense, Rescission Enforcement etc.

If you are a lawyer who is interested in getting referrals of new clients, and you have experience in foreclosure defense and are willing to take clients for rescission enforcement, then please fill out the following form. There is no fee charged for you to be part of our network, no sharing of fees for referrals, and no obligation to do anything for us other than faithfully serve the interests of the clients.

If you are interested in Business Plans for representing clients in litigation, listen to the Neil Garfield Show Thursday nights at 6pm. Besides helping people who are in distress, you can help yourself with significant income potential.

Please go to this form, fill it out and click “Submit.”

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We are especially interested in getting lawyers for our readers in the following places:

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