Foreclosure Mills Liable Under FDCPA

“When interpreting a statute, the court must begin with the text.[e.s.]  Allen ex rel. Martin v. LaSalle Bank, NA., 629 F.3d 364, 367 (3d Cir. 2011). “If the statute’s plain language is unambiguous and expresses [Congress’s] intent with sufficient precision, we need not look further.” Psaros v Green Tree, NJ Federal District Court (New Jersey) Case #15-4277 (JLL)(JAD)

Editor’s Note: Another decision that corroborates what I have been saying for years — that excellent actions for damages lie against both the servicers (and Trustees) AND the law firms that represent them.

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WE HAVE REVAMPED OUR SERVICE OFFERINGS TO MEET THE REQUESTS OF LAWYERS AND HOMEOWNERS. This is not an offer for legal representation.
Our services consist mainly of the following:
  1. 30 minute Consult — expert for lay people, legal for attorneys
  2. 60 minute Consult — expert for lay people, legal for attorneys
  3. Case review and analysis
  4. Rescission review and drafting of documents for notice and recording
  5. COMBO Title and Securitization Review
  6. Expert witness declarations and testimony
  7. Consultant to attorneys representing homeowners
  8. Books and Manuals authored by Neil Garfield are also available, plus video seminars on DVD.
For further information please call 954-495-9867 or 520-405-1688. You also may fill out our Registration form which, upon submission, will automatically be sent to us. That form can be found at https://fs20.formsite.com/ngarfield/form271773666/index.html?1452614114632. By filling out this form you will be allowing us to see your current status. If you call or email us at neilfgarfield@hotmail.com your question or request for service can then be answered more easily.
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THE FOLLOWING ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.

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Both of the cases in the above links are worthy of intense study. For one thing I have found that lawyers who skimmed the statute didn’t realize that damages were NOT limited to $1,000 per violation, plus fees and costs. Compensatory damages including that for emotional distress are readily available upon a proper showing.
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But the other thing I found interesting is that this recent case (end of December for the Psaros case) specifically references the beginning and end of a court’s authority to “interpret” the statute and specifically refers to FDCPA as a remedial statute clearly intended to lean in favor of borrowers, not the banks.
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I would suggest that when a Judge starts ranting about how he or she is not going to rule in favor of the borrower on their objections and claims for rescission, FDCPA claims etc, that the lawyer ask a simple question: “Your Honor, what part of the statute  do you find ambiguous?” When they can’t answer that question (because all courts in the land have established that there is no ambiguity, then “Your Honor, in the absence of finding an ambiguity, the court lacks authority to interpose an interpretation.
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“The statute must be followed, not changed. All three branches of government are actually in unanimous agreement that the statute must be followed word for word without any changes. Any decision from this Court to the contrary would be attempting to overrule the US Supreme Court and changing the wording of the TILA Rescission statute and the wording of the FDCPA statutes — something that the Supreme Court has expressly and unanimously stated you have no right, justification or authority to do.”

The purpose of the FDCPA is “to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.” 15 U.S.C. § 1692(e). When Congress passed the legislation in 1977, it found that “[a]busive debt collection practices contribute to the number of personal bankruptcies, to marital instability, to the loss of jobs, and invasions of individual privacy.” Id. § 1692(a). “As remedial legislation, the FDCP A must be broadly construed in order

to give full effect to these purposes.” Caprio, 709 F.3d at 148. Accordingly, the Court must “analyze the communication giving rise to the FDCPA claim ‘from the perspective of the least sophisticated debtor.'” Kaymark v. Bank ofAmerica, N.A., 783 F.3d 168, 174 (3d Cir. 2015)…

prevail on an FDCP A claim, a plaintiff must prove that (1) she is a consumer, (2) the defendant is a debt collector, (3) the defendant’s challenged practice involves an attempt to collect a ‘debt’ as the Act defines it, and (4) the defendant has violated a provision of the FDCPA in attempting to collect the debt.” Douglass v. Convergent Outsourcing, 765 F.3d 299, 303 (3d Cir. 201 (citation omitted). Here, Plaintiff has alleged all four elements (Compl. 28, 29, 33, 35), and Stern Lavinthal does not dispute the first three prongs. At issue is the fourth prong: whether Stern Lavinthal violated a provision o f the FDCP A in attempting to collect the debt.

The quoted part of FDCPA: 15 U.S.C. § 1692e(2).”

False or misleading representations. A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:

(2) The false representation of —
(A) the character, amount, or legal status of any debt; or

(B) any services rendered or compensation which may be lawfully received by any debt collector for the collection of a debt.

Truth in Lending Accidentally Disclosed by Title Company

WE HAVE REVAMPED OUR SERVICE OFFERINGS TO MEET THE REQUESTS OF LAWYERS AND HOMEOWNERS. This is not an offer for legal representation.
Our services consist mainly of the following:
  1. 30 minute Consult — expert for lay people, legal for attorneys
  2. 60 minute Consult — expert for lay people, legal for attorneys
  3. Case review and analysis
  4. Rescission review and drafting of documents for notice and recording
  5. COMBO Title and Securitization Review
  6. Expert witness declarations and testimony
  7. Consultant to attorneys representing homeowners
  8. Books and Manuals authored by Neil Garfield are also available, plus video seminars on DVD.
For further information please call 954-495-9867 or 520-405-1688. You also may fill out our Registration form which, upon submission, will automatically be sent to us. That form can be found at https://fs20.formsite.com/ngarfield/form271773666/index.html?1452614114632. By filling out this form you will be allowing us to see your current status. If you call or email us at neilfgarfield@hotmail.com your question or request for service can then be answered more easily.
================================

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

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George Riley sent me a letter he received from Fidelity Title that explodes the myth that somehow there was an actual connection between funding the loan and the party who is falsely identified as the lender on the closing papers. They closed nothing. And THAT means there never was consummation — a critical element when challenging the right to collect or foreclose and a critical element in rescission. You can’t rescind a contract that does not exist — but you can’t collect on it either. The corollary is that the remedy for an unconsummated transaction is the roughly the sale as a rescinded loan — disgorgement of money, return of canceled note and release of the encumbrance.

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Dear George,

Your question is about this letter from Fidelity admitting that the HUD-1 statements are not truthful in identifying the actual lender. And you ask how important is this? The answer is VERY important.

Mr. Riley,

I am sorry, but as you mention, the original escrow file has been destroyed – Texas record retention rules only require us to maintain escrow records for three years.   We do not have anything to provide the confirmation you are looking for, but if as you state Colonial funded the file, you might want to ask Colonial for a copy of its records.

We cannot give you any legal or other advice so you may want to consult an attorney of your choice, but with that said, please note that HUD-1 statements would often reflect the mortgage company but not the funding lender. [e.s.]

I am unsure why you sent us a copy of a warehouse agreement between lenders that is dated after our transaction.[e.s.]

Best regards,

Elise Kitchens

Vice President Escrow Administration

Fidelity National Title Group

Division 5

Yes it means that your loan was most likely table funded, although the letter doesn’t explicitly state that. AND THAT means that the party on the note and mortgage is NOT the party who owned the debt because they didn’t loan you any money. And THAT is precisely one of the main reasons for the passage of TILA 50 years ago — Banks were hiding behind “Originators” so that when disclosures were not properly done the liability would fall on the originator who in many cases was long gone and operating under some new corporate name.

More Importantly it means that the loan contract was never consummated. If ABC loans you money, but you sign papers “acknowledging” DEF Company as the lender and you execute a note and mortgage stating that you owe money to DEF Company, then you have only 2 legs of a 3 legged stool — —- a loan contract consists of an offer from a particular person or entity, acceptance by another person or company and consideration actually moving (funding) from each to the other. Otherwise it is basic black letter law that there is no contract to enforce.

The only way out of this is to tie the funding party to the originator (who was not the lender) at the time the loan documents were signed.

This is generally impossible for two reasons.

First the actual creditor is largely unknown because the investment money that was intended for the trusts was never actually given to the Trusts; part of the money investors advanced to investment banks was sent to closing tables where everyone present thought the money was somehow tied to the originator. It wasn’t. The originator merely was paid a fee and never booked the transaction as a loan on its financial records. Nobody else booked the “loan” as a receivable and debit to cash or other assets either at the time of the loan. The money came from a slush fund wherein the money from all investors was kept without regard or label as to any particular REMIC Trust and hence, without regard to the Trust or any of its beneficiaries.

Second, the banks took extra care to make certain that they were using bankruptcy remote and liability remote vehicles that would prevent anyone from easily tying the banks as a conduit for the money trail as described above. THAT means they made sure there was no connection between the originator and the source of the money.

Massachusetts Institutionalizes Theft of Title

Massachusetts Alliance Against Predatory Lending

www.maapl.info

 

January 20, 2015                                            Contact: Grace Ross, MAAPL Coordinator

For Immediate Release                                    Cell 617.291.5591

 

Attorney General denies Ballot-Challenge to Law gutting Courts’ Powers.

Voters pledge to still enforce Constitution and right to their property.

 

January 19, 2016 – The Massachusetts Alliance Against Predatory Lending (MAAPL) regrets today’s decision by the Massachusetts Attorney General. Maura Healey turned down a “Ten Voter” petition to put the legislature’s hurriedly passed Chapter 141 of the acts of 2015, “An Act Clearing Titles to Foreclosed Properties,” to a voter referendum on the ballot. Healey will not permit voters to revoke the legislature’s passage of the Financial Industry’s recent law which reversed SJC decisions that affirmed illegal foreclosures were void by law. Practically, this law will deny the majority of state residents’ right to sue to regain their illegally foreclosed homes.

 

“What is shocking here is having run as she calls herself the chief consumer enforcement officer of our state, the Attorney General did not even let the voters address the unconstitutional taking of our people’s property rights. We can only hope that, having denied the Voters’ powers to protect our own constitutional rights through the ballot, she has plans to take the law directly to the SJC herself as her oath of office requires – the explicit purpose of her office under article 10 of our constitution,“ said Grace Ross, MAAPL’s Coordinator.

 

“Our Massachusetts Constitution protects our right to own property. Yet, unless more than 60,000 illegally-foreclosed families get into court by December 30, 2016, this discriminatory law wipes out that right so they’ll never recover their homes. Massachusetts must do better!” says Sarah McKee, a former federal prosecutor who has experienced the life-long impacts of family losing their home to foreclosure.

 

“”Not since just prior to the American Revolution have the elite had similar ability to illegally confiscate citizens’ property, knowing it would be ratified through the Legislature,” said John Schumacher, a Massachusetts resident whose ancestors mustered at Lexington and Concord, and who is fighting an illegal foreclosure. “This new law steals my Constitutional rights!  It presumes to rewrite private contracts retroactively and to interfere with my constitutionally protected, judicial remedies.  It does not fix a single title, but instead guarantees the bets banks have placed with their powerful and wealthy hold over our political system. This is not what we are about…. We are supposed to be a Commonwealth, not a Common-theft.”

 

MAAPL will turn to the courts to address constitutional, discriminatory and practical implementation problems with Chapter 141. MAAPL continues to call on the Attorney General, other Constitutional Officers and the Supreme Judicial Court itself to address the unconstitutionality of this new law.

 

“Through this bill, the Financial Industry had the legislature usurp the judiciary’s powers to determine the outcome of disputes between private parties. The Industry’s stated purpose of this law is to overturn numerous, recent and hundreds of historical top court rulings enforcing hundreds’ years old law enshrined in our state Constitution, such as the 2011 Ibanez, 2012 Eaton, and 2015 Pinti decisions,“ Grace Ross, MAAPL’s Coordinator expressed with grave concern. ”We get it that the last foreclosure crisis and illegal takings were pre-revolution and too long ago for most of us to remember and understand. However, the AG’s office as our primary protector needs to take the time to understand or let the voters act.”

 

MAAPL agrees that, constitutionally, statewide ballot referendums cannot be used to substitute legislative fiat for our Massachusetts judicial powers. But the Attorney General must realize constitutionally, the Massachusetts Legislature also does not possess this authority. However, the Attorney General should not block people’s attempt to re-instate the constitution’s separation of powers while supporting the legislature’s dismantling of it.

“”The government should not want anything to do with this. Healey, we voted for you to be our protector of our constitution rights to our homes. You promised us, the people of Massachusetts. You did not promise the bankers to help harm more families. Stand up for the people!” urges Mildred Collins, a Worcester resident who was foreclosed in January, 2011. Housing Court has twice ruled her foreclosure was illegal.

“This situation with our Attorney General, The People’s Advocate, is akin to looking around my Whist game and realizing I’m playing against three people. This law re-enforces the massive illegal land grab from people of color – in 4 years Blacks lost over half our wealth on average. Latinos lost 2/3s. We The People need a partner to face the title insurers and the financial industry – those guaranteed the winning cards under this new law. We expect the Attorney General to now take direct action from her office to stop this law,” insisted Zakiya Alake, who has rejoined the fight for restitution from her illegal subprime mortgage and loss of her home in 2002.

 

Homeowners across the state and attorneys available for comment upon request.

 

Why Your Foreclosure Attorney Just became Your Business Partner

WE HAVE REVAMPED OUR SERVICE OFFERINGS TO MEET THE REQUESTS OF LAWYERS AND HOMEOWNERS. This is not an offer for legal representation.
Our services consist mainly of the following:
  1. 30 minute Consult — expert for lay people, legal for attorneys
  2. 60 minute Consult — expert for lay people, legal for attorneys
  3. Case review and analysis
  4. Rescission review and drafting of documents for notice and recording
  5. COMBO Title and Securitization Review
  6. Expert witness declarations and testimony
  7. Consultant to attorneys representing homeowners
  8. Books and Manuals authored by Neil Garfield are also available, plus video seminars on DVD.
For further information please call 954-495-9867 or 520-405-1688. You also may fill out our Registration form which, upon submission, will automatically be sent to us. That form can be found at https://fs20.formsite.com/ngarfield/form271773666/index.html?1452614114632. By filling out this form you will be allowing us to see your current status. If you call or email us at neilfgarfield@hotmail.com your question or request for service can then be answered more easily.
================================

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

—————-
by Eric Mains, Guest Columnist for Living Lies. Eric Mains is a former FDIC auditor who has been assisting homeowners with foreclosure defense and foreclosure offense strategies. He is both a general consultant in the field of foreclosures and mortgage loans and an expert witness.

see https://www.dropbox.com/s/f2gub7vuhgu7tqw/The%20True%20Cost-%20A%20Homeowner%20vs%20Foreclosure%20Attorneys.pptx?dl=0

Why Your Foreclosure Attorney Just became Your Business Partner

Six years ago when I started down the road of defending against a wrongful foreclosure, despite my general legal experience, I was still very naïve about the homeowner foreclosure process. I thought it would be easy enough to find an attorney to represent me and who would understood my case. He would prepare his brief, present my defense to a judge, who of course would immediately see through the defective paperwork, hearsay, etc., and not allow a foreclosure to proceed. Unfortunately, I and many others were wrong about our assumptions.

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So what is it we are getting wrong? The legal system is not supposed to work this way in practice. Equity, rules of civil procedure, and rules of evidence should be on the courts mind. More importantly, why aren’t there more attorneys in this field with so many clients in need of a good lawyer? By now, those who read Neil’s blog are well familiar with some of the answers, but is worth going over some of the root causes that can prevent a good defense, and what can be done to help structure a more effective one.

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Gary Dubin did a very good commentary back in December on his radio show about why foreclosure defense attorneys were a seemingly endangered species, and why the legal process had become so difficult in general. He pointed out a number of causes, including: a.) Discovery costs skyrocketing, with banks making the process very difficult by hindering access to documents and evidence. b.) Poor legal education in this area, leading to poor legal defense, and legal aid attorneys who are unprepared to help those who lack funds to defend themselves. c.) The top law grads usually go where the money is, to the banks and Wall Street, with huge legal firms and large support staff, limiting the pool for others. Further shrinking it, the banks spread their business out among multiple firms, conflicting other attorneys out whom might defend you. d.) The judges themselves may have existing prejudices and bias, starting with the judicial selection process itself, and they may also be stockholders of the big banks. e.) The regulators and state BAR’s are not going after banks and their attorneys, instead they are being used to go after the defense attorneys in some cases f.) Bad case law from Pro Se cases making defense harder, and “clients from hell” making foreclosure defense a thankless task for those trying to practice it. So those being part of the causes, what can you do to deal more effectively with them?

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First, become an effective teammate and partner to your attorney if he has limited resources (office staff, paralegals. etc.) and experience in this field, and you have the ability to aid him. By being an effective partner I DO NOT mean trying to tell him how to do his job as an attorney. You will find very quickly that you are not a favored client by doing so. By partnering with him what I mean is that you can and should try be his support staff to the extent you can. You don’t have to be a lawyer to dig up the pertinent case material and facts, the things you both need to build your case. Help to provide him with facts, research, and case law that can help him to piece together your defense. A good attorney, even if inexperienced in the foreclosure defense arena, can put a good defense or offense together if he is provided the relevant facts, supporting and contradictory evidence, and background to your situation, basically the “storyline” of your case.

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Second, to do this you need to Organize. If your attorney is given the above information in an organized format without having to sift through a ton of paperwork, it will save him time, and you money. This may sound like common sense, but unfortunately it is not the norm many attorneys experience. Trust me on one thing, your struggling attorney who is trying to juggle multiple clients, and bang out enough billable hours to keep afloat, does usually not have the time or expertise to go through notes, DOT’s & Mortgages, assignments, default notices, etc., and play “Where is Waldo?” to pick out what is wrong with your case, and locate smoking guns and defects. Most likely he will not even see a lot of these documents prior to discovery, if even then, and that may be too late in the process to effectively help you. So DO help put together all the paperwork from your loan closing, and from any foreclosure actions against you, in a binder for him in order of date. Go to the county recorders office and obtain the filed records as to your property, put them in there too. If you can do so, issue a QWR to your loan servicer. Under RESPA, they are required to respond. Get as much information as you can regarding your loan, it will pay dividends later.

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Third, if you can’t find all these documents on your own, or your attorney does not know where to locate them, ask for help! There are reputable consulting companies out there who can get you basic chain of title documents for a fee, usually under $500. If you want more detailed documents, and an analysis of what they found, it could cost you $1500-$2000, but this may be well worth it depending on your case. If you want litigation consulting on top of all this as you progress through your case, you may spend $5000 or more, but again, it may be worth it, maybe not, it really depends on YOUR case and its complexity, and the EXPERIENCE of your attorney. Imagine you just saved your attorney 20 billable hours (minimally) by doing the above, at $150-$200 per hour, that just saved you $3000 or more. The money you spend on outside help and consulting may be a wash when compared to the fact that had you NOT sought their help you would have paid your attorney the same amount for his time trying to recreate their work product, and doing it badly in some cases. Bottom line, if you can afford it, use your money intelligently and in a focused manner, don’t just throw money at your attorney and expect the same quality or results, you may not get it. Be informed as to how your money is being spent, and budget it.

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Fourth, once you have this information, you, your attorney, or your consultant should be playing detective with your case. Who claims to hold the note and DOT? Who did the assignments? When were they supposedly done? Google the information on these entities. I won’t go into detail, as Neil and others have enough advice written on these topics as to what to look for, but find out WHO the players in your case are. Google cases involving these entities, what were the issues noted in those cases? What defense tactics worked, and can they be used in your case? Was any discovery done that could be helpful to your case, depositions, etc.? Highlight the rulings in those cases, and see if they are relevant in your State or federal district.

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Fifth, once you have done this, decide what direction you want to take with your case. Try to keep your home? Potentially let it go and try to sue for damages? File bankruptcy first? You and your attorney may not see eye to eye on these points sometimes. You should both calmly discuss the strategy of your case and plan of attack once you have a good foundation in place, and can make intelligent and informed decisions together. However, if he does not want to pursue a particular strategy after giving his reasons why, you need to either accept his advice, or find other counsel if you believe that based on the facts that your interests are served by taking a different approach. Remember, he generally should know the courts and judges in his district better than you, and it could be his license and reputation on the line in an unfriendly district. Ideally you will have this conversation before you retain him, but sometimes your case is not always clear at the outset or subsequent rulings from other cases may alter case law, so you are forced to revisit the subject.

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In any event, if you can do the preceding you have just dealt with causation items a-c in a fairly effective manner. I handled my case with my attorney Jon Schulte in much this manner. While we started out on a bumpy road at first, we now have a good system going that works pretty efficiently. An important point to make here is that being smaller in scale and reaching quick consensus can actually exploit the large banks weak points in cases where you are suing/counterclaiming against them. Many articles have pointed out that banks and their attorneys increasingly being found liable for FDCPA claims, and that law firms are also going under due to the pay structure methodology they have arranged with the banks. Many law firms do not get paid until a foreclosure is completed and the house is sold. How happy do you think the law firms getting sued for FDCPA violations are about having to defend their actions on behalf of banks, while at the same time they are not getting paid by them? Wonder if they got an indemnity from the banks for their liability? I actually created a power point for my case as an educational aid in illustrating how pricey it can be to try to foreclose using fraudulent means. It is based on the publicly available information on my case from PACER and from websites…I am sure it is likely to get my hand slapped, however is does help honestly illustrate the above problem in detail with a bit of levity thrown in, as lighthearted as this subject can be that is.

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Finally, how do you deal with points d-f? This is a bit more complicated, but I would say first, know your venue and your judges. This is invaluable, and your counsel should know what the politics are in the district you plan to bring your case. Become familiar with this and decide where venue may favor your case. Can’t get a fair shake in State court? Maybe it’s time to go federal, or go to the bankruptcy court. Some State courts have made it clear that if opposing counsel and their clients have a pulse, and can hold a note, then they must have standing and can foreclose. It’s not fair, but you deal with what you have, so choose wisely. In my case for example, I knew that the presiding federal judge was a former partner in Bose McKinney & Evans LLP, the law firm I was suing. She went to law school with one of its principals, and had famously quoted in an Indiana magazine, ” There are some cases that we just process, like foreclosures. They don’t require any adjudication, no exercise of judicial discretion.” See, Sustained: Judge Sarah Evans Barker, Megan Fernandez, Indianapolis Monthly, May 15, 2015. So shouldn’t I have sought a recusal, a different judge?, something? Not necessarily. You can’t always pick and choose your judges, and there is no guarantee your next one is going to see things your way either. What matters most is the judge’s reputation among their peers, and their history for being fair minded and impartial in deciding cases. Past ruling are not always a predictor of how they will rule in your case if it is well planned, clear in its points, or presented in a manner that may not have been presented to that judge in the past. By doing that you are also making sure you deal with points e & f as well. So that’s it, be prepared to support your counsel, get organized, and make careful informed choices. Not earth shattering advice, but I hope this column helps drive that simple point home.

 

Stephen Wright, Esq. On Rescission and Drilling Down to the Truth Tonight on the Neil Garfield Show

Click in to tune in at The Neil Garfield Show

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

More than 40,000 people listen to the Neil Garfield Show. Maybe you should too.
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Steve Wright and Neil Garfield  will be discussing and allowing time for questions in a 45 minute broadcast. The topics are Rescission, the time limits for sending, recording the rescission, the time limits and the rules restricting the right of so-called lenders or creditors from filing anything that challenges the effect of the rescission, Standing, Drilling down on Standing and driving down beyond standing, Judicial notice of the Trust instrument, and the difference between the strategy of trying to enforce the PSA, which most courts are saying you can’t do, vs the strategy of attacking whether the REMIC Trust ever purchased the loan and therefore whether the alleged trustee or servicer has any relationship to the loan. If the loan doesn’t own the debt then the Trustee and Servicer are just padding. 
Stephen P. Wright
 Wright Law Firm
 324 Elm Street
 Suite 103B
 Monroe, CT 06488

“Continuing offense” may extend statute of limitations

WE HAVE REVAMPED OUR SERVICE OFFERINGS TO MEET THE REQUESTS OF LAWYERS AND HOMEOWNERS. This is not an offer for legal representation.
Our services consist mainly of the following:
  1. 30 minute Consult — expert for lay people, legal for attorneys
  2. 60 minute Consult — expert for lay people, legal for attorneys
  3. Case review and analysis
  4. Rescission review and drafting of documents for notice and recording
  5. COMBO Title and Securitization Review
  6. Expert witness declarations and testimony
  7. Consultant to attorneys representing homeowners
  8. Books and Manuals authored by Neil Garfield are also available, plus video seminars on DVD.
For further information please call 954-495-9867 or 520-405-1688. You also may fill out our Registration form which, upon submission, will automatically be sent to us. That form can be found at https://fs20.formsite.com/ngarfield/form271773666/index.html?1452614114632. By filling out this form you will be allowing us to see your current status. If you call or email us at neilfgarfield@hotmail.com your question or request for service can then be answered more easily.
================================

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

—————-

 

See http://www.lexology.com/library/detail.aspx?g=249bf095-ac84-44ce-836f-6d4988f86d11

The Court of Appeals found it was a “continuing offense” for which the “limitations clock” did not begin until December 2009, when, presumably, the illegal storage ceased. As stated by the Court of Appeals, “Congress, in enacting RCRA, employed language indicating that it understood [illegal] storage to be a continuing offense.”

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The issue of the TILA right of rescission being barred by a statute of limitations may soon be resolved in favor of the borrower. However, the courts might carve out an exception in rescission cases as to “when the right of rescission expires.” AND all of this dovetails with equitable tolling and the fact that no lawsuit is required to make a rescission effective.

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The fact that the notice of rescission was “mailed” is, in and of itself, all the evidence you need, without any need for a lawyer, judge, hearing or order stating that it is effective. All of that has already been done for the borrower by the TILA rescission statute 15 USC §1635 et seq, Regulation Z, and the U.S. Supreme Court — all three branches of government being in complete and unanimous agreement on that point.

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Courts that attempt to ignore this basic fact, as a matter of law, are explicitly denying the boss — the US Supreme Court.

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In short, what some courts are doing is wrestling with a problem that does not exist — whether the rescission is effective.

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And, compounding the judicial error, is that if they wish to “rule” against the borrower and proclaim some defect with the rescission the Court is committing errors —

The court is ruling AS THOUGH THE RESCISSION HAD BEEN VACATED without a lawsuit,the opportunity of the borrower to cross examine and present a defense (including the statute of limitations for filing a lawsuit demanding that the rescission be vacated). The statute is very clear that if the “lender” or creditor wants it any different they can apply to a court of law — not the US Mail or a motion that skips the due process of filing a claim for the express purpose of asking the court to vacate the rescission.

The statute is quite clear that the creditor or lender must apply to the court to change anything about the rescission — within 20 days from receipt of rescission and thus incorporates normal procedural law — establishing jurisdiction and standing, alleging that the rescission was mailed and is effective, stating why it should be vacated (not why the rescission is ineffective).

Any “interpretation” of the statute violates the directive of their boss — the U.S. Supreme Court.  Justice Scalia said that (1) the statute is perfectly clear and thus does not allow room for interpretation of anything (the express wording of the statute controls) and (2) the statute obviously does NOT make any distinction between disputed and undisputed claims — hence that ALL rescissions are effective even if they were defective or even wrong.

The court is ruling as though such a claim had been brought and is treating the rescission as though it was vacated. This ignores the key issue of standing. There is a body of law, using presumptions at law, that the “holder” of a note has the right to sue for foreclosure or collection; BUT there is no body of law supporting the granting of relief or accepting standing based upon the claimant’s reliance on a void instrument. It is clearly erroneous to accept the assumption by trial judges that the court has jurisdiction to hear a claim that has never been alleged, no defense has been presented, no evidence hearing and no judgment.

Which brings us back to the so-called statute of limitations on sending a rescission. The statute says the right to send that rescission end three years after the consummation of the contract. If the borrower is alleging that the actual consummation date is unknown and might never have occurred with ANYONE in the chain relied upon by the foreclosing parties, THEN THE ISSUE OF THE DATE OF CONSUMMATION IS A FACT IN ISSUE THAT MUST GO TO TRIAL AND NOT RULED UPON BY A COURT WHO SAYS “IT IS OBVIOUS.” The only exception to this is the age-old problem of lawyers filing papers that admit that the date of consummation was on a certain date — which is admitting a non-existent fact, about which neither the lawyer nor the borrower have any knowledge.

There is also the problem of table-funded loans where the actual party who actually loaned the money or whose money was used to fund the loan or fund the acquisition of the loan. It would appear that this IS the creditor. And it follows that only the real creditor can file the lawsuit asking that rescission be vacated (same general procedure as vacating a court order — which leads to an evidentiary hearing). The issue remember is that parties relying upon the void note and the void mortgage have no standing, and thus the court lacks subject matter jurisdiction to enter a ruling on anything about the notice of rescission.

In the case of table funded loans, it is nearly always the case that the actual creditor is not disclosed, so the violation of TILA is continuing and the discovery of the problem usually only is revealed in litigation. It follows that if the violation is continuing and the revelation was recent and the borrower had no other reasonable way to get the real disclosure, that the statute would only start to run when the banks (1) stopped the continuing violation by (2) revealing the identity of the actual creditor.

The presence of this continuing violation is obvious — in most cases the REMIC Trust is alleged to be the holder of the note and mortgage, which by definition means that they have left something out — either (1) the name of the creditor for whom they are attempting to collect or foreclose or (2) allege (and prove) that they are the owner, which would require proof of payment in discovery and at trial.

Why the stock market is falling and how they are lying about foreclosures and a “housing recovery”

One of  our volunteers wrote an extremely good article “This is what the housing recovery looks like?” that I thought I would share with all of you.Before that a few comments:

So how did we get to this point?  Simple — we abandoned the rule of law, removed common sense and ushered in an era of unaccountability. Combine that with several presidential administrations who had no clue about anything happening on Wall Street — and that assured that moral hazard would become moral morass.

So before you read the article below consider this:

  1. Foreclosures are more successfully hidden from view because the banks have better control over the flow in various parts of the country. This gives the appearance of declining foreclosures — except for the 6 million more homes that are going to be foreclosed. Like the fake documents they are using in court, the banks have turned the whole perception of foreclosure into a game (fun for them) of Wackamo.
  2. Price earnings ratios are at record highs — taking on average some 27 years to make the cost of the stock in earnings. That is insane. The normal P/E ratio has always been half of that.
  3. Free money is what floated the market prices up and it is exactly the same thing that will bring it down. Over 50% of all stock owned is with “margin” money which in lay terms is a loan using the stock as collateral. The stock goes down and that causes a “margin call” which means you don’t have enough collateral and the only way you meet the margin call is by selling more stock. See “Housing Market” if this is sounding familiar.
  4. Policy has been based upon the average working person being inconsequential. So it didn’t bother the multinationals who gave up on the American working class and set their sights on selling to Chinese companies and people. With that philosophy it didn’t matter that American homeowners lost more than $10 trillion in illegal mortgages, illegal foreclosures and outright theft. But genius runs thin at the upper echelons of people in power who are just about as dumb as anyone else. They never thought through the fact that ONLY a thriving middle class in the U.S. would be the safety net for American companies who had given up on anything that was American.To say they were all shortsighted is being too generous.
  5. So economic activity has already fallen by half — except for false reports from the financial sector that now accounts for 48% of our GDP when 20 years ago it accounted for 16% of GDP. Let me clear the smoke in the room — if actual goods and services are down there is nothing REAL to be traded on Wall Street that would account for its phenomenal growth in importance in our GDP. Eventually the bubbles burst. Careful this one doesn’t catch you flatfooted.

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This is what a housing recovery looks like?

Wells Fargo released their Q4 earnings last week.  Investors were concerned that oil prices have fallen, while energy investors were concerned about the impact on domestic shale.  However, investors should have been concerned when the nation’s largest mortgage lender released their residential mortgage applications data.   The chart shows that $64 billion in mortgage applications were submitted in the fourth quarter, not only was this a major drop from Q3, but also the lowest number of applications submitted since the first quarter of 2014.

Wells Mortgage Applications

Is this what a housing recovery looks like?  Are consumers too broke to purchase, are home prices too high- or have people finally came to understand the risks of taking out a mortgage from a major lender who will securitize their loan and transfer the servicing rights to a company that, if they should encounter any financial setbacks, is incentivized to take their home?

Furthermore, the US Treasury is cracking down on criminal and money laundering “all cash” buyers.  In Miami, anyone paying “cash” for a property over $1 million dollars will be under financial scrutiny to “prove” the cash is from “legitimate” sources.   They have also issued the same policy for buyers in New York City that pay cash for homes over $3 million.  Eventually this practice will probably become widespread to all major U.S. city.  This policy will do nothing but shift investments into other assets or raw land elsewhere (the wealthy have the means to invest off-shore).

Meanwhile, Goldman Sachs has received an insignificant slap on the hand for their role in the 2007 mortgage meltdown by paying a civil settlement of up to $5 billion from federal prosecutors and regulators because of their marketing and selling of known faulty mortgage securities to investors, while KNOWING these securities were worthless. This is a criminal matter with evidence, and yet the regulatory agencies and law enforcement do nothing to stop the fraud, thus perpetuating the corruption.

Goldman Sachs announced:

Under the terms of the agreement in principle, the firm will pay a $2.385 billion civil monetary penalty, make $875 million in cash payments and provide $1.8 billion in consumer relief. The consumer relief will be in the form of principal forgiveness for underwater homeowners and distressed borrowers; financing for construction, rehabilitation and preservation of affordable housing; and support for debt restructuring, foreclosure prevention and housing quality improvement programs, as well as land banks.

The bankers have received a “get out of jail card” because they are able to blackmail and control the politicians that control the prosecutors and regulators. Is there any other explanation?  If you or I steal a candy bar, we are going to jail and getting booked.  If we steal a couple billion through securitization schemes we might be deposed and subsequently promoted for protecting the bank. It is no coincidence that Rubin and Paulson who were CEOs at Goldman Sachs were promoted to Secretary of the Treasury after they ran block for their employer.  The corrupt racquet known as the “revolving door” ensures that bankers remain above the law.

In the movie the Big Short (I recommend all readers of LivingLies go see this movie), there is a scene where a party girl lounging at a ritzy hotel pool is shown looking for a job with Goldman Sachs despite the fact at the time that she is an SEC regulator. She has no consideration about the conflict of interest, but is more concerned about how to leverage her current position for more pay and prestige- to hell with the law or protecting investors.  Another scene depicts how the rating agencies sell their ratings and how their ratings are not based on any type of logical algorithm!  In any other industry these practices would be considered racketeering, bribery, and FRAUD.  The bankers, regulators and politicians have no fear that there will be consequences for their behavior. Why should they?  Not one banker involved in mortgage security fraud has been charged with a crime.  In fact a fine of $5 billion dollars while they made billions and billions in profit is nothing but a “cost of doing business” fee!  Unfortunately, as long as the elite can profit off the backs of the consumer and investors with no real oversight- every borrower and investor is vulnerable to market and housing losses.

The take away message is that the law now protects those who generate wealth for their wealthy friends in high places.  The other 99.9% of us are on our own.  The wolf is circling the hen house, while the border collie takes bribes from the wolf.  There is little protection from government agencies, politicians or the judiciary when they are all benefiting from the same system for personal enrichment.  Where is law enforcement when all of this is going down?  They are receiving “cool toys” or decommissioned military equipment from the feds, promises of a safe pension from the state, all while getting to play cowboy while the average American’s quality of life plummets.  As for the housing market?  Enter at your own risk.

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