Neil Garfield’s Evidence in a Nutshell: SILENCE IS DEADLY!

 

Click Here to sign up:Mastering Discovery and Evidence in Foreclosure Defense

Preface from Neil Garfield:

In my nearly 41 years as a litigator, I have won many (but not all) cases. Over the past ten years those include foreclosure cases that were given up for lost by preceding lawyers. The reason I won is simple: the entire foreclosure scheme is basically a fraud. So I was able to direct my requests for discovery, my objections at trial and my cross examination of witnesses towards the missing links that never existed.

I don’t prove fraud. I reveal the absence of evidence that should be present if the foreclosure was real. I didn’t prove anything except the absence of critically important transactions and documents, thus undermining the prima facie case of the alleged foreclosing party.

It is impossible to impart our knowledge of what works and what doesn’t in a simple 30 minute or even a one hour consult. So I made the decision to offer a seminar that costs a third of what such a seminar would charge in order to get people to learn how to line up their defense strategies.

The single most common reason for homeowner losses in foreclosure cases is lack of knowledge on procedure and substantive law. And the single most prevalent piece that lawyers and pro se litigants are missing is understanding the rules of evidence. That lack of knowledge affects everything, but especially discovery requests.

So although the topic may appear too technical or boring for your taste, attendance is required for anyone who really wants to start winning cases. No guarantees of course — except that you will almost certainly lose if you don’t know the laws and rules affecting discovery and evidence.

THIS SEMINAR WILL NOT BE DISCOUNTED.

Defending your home from foreclosure? Suing a servicer?  Approaching trial with a wish and hope instead of a prepared trial strategy? Register now for Neil Garfield’s Mastering Discovery and Evidence in Foreclosure Defense webinar.

This online webinar will provide instruction on establishing your narrative, making objections, conducting cross examinations and how to blow up the robo-witness. It will also cover the foundation for objections through attempts at getting discovery and the use of Motions in Limine based upon the inability or unwillingness of the attorneys to provide any meaningful response to discovery.

Knowing the laws of Evidence is critical in preparing discovery requests. Cases often end during discovery when you get the order (on a Motion to Compel) you want requiring the foreclosing party to open up its books and records. At this point our experience is that the other side immediately makes a credible settlement offer. But even if you don’t get that order or are not interested in the settlement offer the failure to respond to discovery serves as the foundation for Motions in Limine, objections at trial and cross examination of the robo-witness.

 

Every successful trial strategy for winning a foreclosure defense case rests on the ability to blow up the robo-witness and to deny the foreclosing party the ability to get documents (hearsay) into evidence. You will learn why the most common question asked is the wrong question. It isn’t a matter of proving the fraud. Good defensive trial strategy does not prove anything; it reveals the gaps in the prima facie case of the foreclosing party.

Forensic experts will also demonstrate the value of investigation and how that helps the attorney or pro se litigant create a narrative and case strategy that works.

 

Date: February 16, 2018

Time: 1:00pm Eastern/12:00pm Central/11:00am Mountain/10:00am Pacific

Delivery: Webinar via Computer (WebEx platform) for visual presentation, or by Skype or Phone.

Who Should Attend: Real estate attorneys, homeowners, and title agents who insure title following a foreclosure (and their support staff).

Presenters include:

  • Attorney and Foreclosure Expert Neil F Garfield for GTC Honors, Inc.
  • Securitization Expert Dan Edstrom, DTC Systems, Inc.
  • Investigator Bill Paatalo, BP Investigative Agency
  • Attorney Charles Marshall of the Marshall Law Firm/California.

REGISTRATION: $149-Hurry and Register

Seminar Length:  Estimated 3-Hours including post-seminar Q&A session (30+  minutes)

Materials for Participants:

  • PowerPoint Printouts (delivered with log-in and by email)
  • Transcript of Seminar (delivered post-seminar)
  • Recording of the Seminar
  • Transcript of Cross Examination (delivered by email)
  • CLE Credits Requested: 2 Civil Litigation

Lecture Topics:

  1. Law vs. Politics
  2. The Politics of Home Foreclosures
  3. Realities for Investors
  4. Reality vs. Legal Doctrine: No action arises from deceit
  5. Strategies for Homeowners When the Salesman is Dead
  6. Information v Evidence
  7. Reality v Paper
  8. Void v. Voidable
  9. The Fictional Boarding Process
  10. Standing and Jurisdiction
  11. Objections
  12. Motions in Limine
  13. Cross examinations
  14. Robo-witnesses and signatures
  15. Negotiable Instruments
  16. Nonexistent Transactions
  17. Fabrication of Documents
  18. Who’s on first?
  19. Unfunded Trusts
  20. Inside & Outside of Discovery: Requests for Production, Interrogatories, Request for physical access (computers) and Request for Admissions
  21. Motion for Summary Judgement
  22. Admitting information into evidence
  23. Reveal Absence of Evidence
  24. Fraud on the Court
  25. Compliance with Pre-Trial Orders

 

The seminar is conducted by computer or by phone.  However, to access all webinar visuals you must log in by computer into the webinar.  Registrants will receive directions within 24 hours prior to the seminar with instructions to access the WebEx seminar.

Discovery is where the rubber meets the road. This seminar will help you navigate the discovery and evidence minefield with skill.  

What is Discovery?

Discovery describes the process of requesting information from the other party in a lawsuit.

It is an invaluable weapon in the fight to defend your home against the banks. If you are being sued by the bank and they are alleging that they are entitled to foreclose on your home, you must find out exactly what evidence, if any, they are basing these allegations on.

You’ll want to see a copy of the original promissory note to determine if your original lender endorsed this evidence of the debt through an assignment of mortgage. Filing for discovery can help you formulate your defenses and build the strength of your case prior to any trial or final summary judgment.

In order for parties to obtain discovery, the Florida Rules of Civil Procedure have set forth a means by which to accomplish this end, and those legal avenues are specifically outlined in Rules 1.340, 1.350 and 1.370. Most states have comparable civil procedures.

Three Kinds of Discovery:

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).

A Foreclosure Cannot Proceed when Discovery is Pending:

Discovery is critical because it enables the parties to properly develop their arguments, it can also be a strategic tool in preclude the bank from getting a Final Judgment (loss of the home) entered against the borrower. Florida case law states that Courts should NOT enter Final Judgments while the discovery process is still on-going.

Specifically, “Summary judgment should not be granted until the facts have been sufficiently developed for the court to be reasonably certain that no genuine issue of material fact exists.”Singer v. Star, 510 So.2d 637, 639 (Fla. 4th DCA 1987)

And furthermore:

“As a general rule, a court should not enter summary judgment when the opposing party has not completed discovery.” Singer; Colby v. Ellis, 562 So.2d 356 (Fla. 2d DCA 1990)

Thus, if you’ve filed discovery and that discovery has not been properly responded to by the banks, then the Courts should NOT enter Final Judgment against the homeowner!

Only 30 Requests for Discovery Per Case:

There is a limit to the number of times you can make a request for discovery and that number is in the Rules of Civil Procedure. It could be 25, 30, more or less as amended by court order.

With a limited number of Admissions and Interrogatories you can seek, you need to know what requests will maximize traction. If the Bank refuses to respond to your discovery requests or if their responses are less than satisfactory you must file a Motion to Compel and move the Court to require the bank to provide the information you seek.

The Banks and Servicers are going to object to most of your demands.  Now What?

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.   Register now for the seminar to advance your understanding of handling discovery and evidence in foreclosure defense.  Click here to register.

About the Presenters:

Neil F. Garfield, M.B.A., J.D., is the winner of many of academic awards, a popular speaker, and author of articles and technical treatises on law, finance and economics. He has concentrated his law practice for the last 10 years on issues related to structured finance (securitization in particular). As a former investment banker and real estate investor, he knows mortgage securitization issues from the inside out, who the deciders are, and how they arrived at a catastrophic scheme to defraud, people, agencies, institutions, and governments all over the world. As an expert witness and trial lawyer for 41 years, his efforts to spot evolving trends have helped thousands of homeowners keep their home and receive damages as compensation. Having formerly filed hundreds of foreclosure actions as the attorney for small banks, homeowner associations and mechanics liens, he is well suited to provide assistance to investigators, lawyers and pro se litigants.

Investigator Bill Paatalo has been a licensed private investigator since September of 2009. He has 17 years combined experience in both law enforcement and the mortgage industry which he has utilized to become a leading expert in the areas of chain of title analyses and securitization. He was a police officer with the St. Paul, Minnesota Police Department from 1990-1996 where he was assigned “Field Training Officer” duties in only his second year on the job, and received multiple commendations.  Mr. Paatalo has worked exclusively since 2010 investigating foreclosure fraud, chain of title, the securitization of residential and commercial mortgage loans, and accounting issues relevant to alleged “defaults.” Mr. Paatalo is also a Certified Forensic Mortgage Loan Auditor through (“CFLA”), and has spent more than 10,000 hours conducting investigatory research specifically related to mortgage securitization and chain of title analysis. He has performed such analyses for residential real estate located in many states, including but not limited to, Washington, Oregon, California, Nevada, Florida, Montana, Texas, Arizona, Ohio, New Jersey, and several other states. To date, Mr. Paatalo has conducted nearly 1,000 investigations across the U.S., and has provided written expert testimony in the form of affidavits and declarations in approximately 120 -130 cases nationwide. Mr. Paatalo has been qualified in both state and federal courts as an expert.

Dan Edstrom, of DTC Systems, performs securitization audits, and spent a year putting together a diagram that traced the path of his own house’s mortgage securization that went viral in 2012-2013.  DTC Systems provides research services to lawyers, paralegals, loan auditors, and government agencies for securitization of residential mortgages.  DTC Systems is adept at locating the trusts that loans were pooled into as well as monthly certificate-holder statements and monthly loan level files.

The West Coast Foreclosure Show with Charles Marshall: Table Funded Loans, Consummation and the Courts

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The West Coast Foreclosure Show

Thursdays LIVE! Click in to the The Neil Garfield Show

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

Attorney Charles Marshall and Investigator Bill Paatalo will discuss the issues resulting  from table funding today on the West Coast Foreclosure Show.
Table Funding is a legal theory of liability Charles Marshall is applying in several of his California cases.   The theory has only received limited traction so far. Some judges are starting to accept that many loans were table funded and thus concealed the true lender, while other judges continue to reject the theory in fear that over a decade of table-funded loans would open up the floodgates.
Courts that have considered the argument that when “a borrower’s mortgage loan documents allegedly fails to identify the borrower’s ‘true lender’ that the mortgage loan was never consummated”— and have unanimously rejected it. (Marquez v. Select Portfolio Servicing, Inc. (N.D. Cal. Mar. 16, 2017, No. 16-CV-03012-EMC) 2017WL 1019820,  citing Sotanski v. HSBC Bank USA, Nat’l Ass’n, (N.D. Cal. Aug. 12, 2015) No. 15-CV-01489-LHK, 2015WL 4760506, at *6; Mohanna v. Bank of Am., N.A. (N.D. Cal. May 2, 2016, No. 16-CV-01033-HSG) 2016WL 1729996, Ramos v. U.S. Bank (S.D. Cal. Sept. 14, 2012,No. 12-CV-1820-IEG) 2012 WL 4062499, (holding that where “a lender was plainly identified … the loan was consummated regardless of how or by whom the lender was ultimately funded”)).

Table funded loans, according to Reg Z of the Federal Reserve, are predatory loans  per se especially if it was part of a pattern of conduct by the originator.

“Table Funding” now comes in many flavors:

1. The one addressed by TILA and required disclosures of the identity of the lender (giving the consumer choice over who he/she decides to do business with) has some basics to it. You have a real lender with real money making a real loan. But the disclosures say that the originator is the lender and do not disclose thee existence or identity of the real lender. Regulators have often treated a pattern of table funded loans as “predatory per se.” Back in the 60’s the banks were changing things at closing giving the borrower no option but to close with a “lender” who was different from the entity identified as lender in the original documents (application) and disclosures (GFE etc).

2. So the banks set up what they called warehouse lending in which the originator was borrowing money from the real lender and therefore really was the lender.

3. But in the customary purchase and assumption agreement with the “warehouse lender” it is clear that the so-called “warehouse lender” is the real lender, since it asserted ownership of the loan starting before the closing of the new loan.

4. In the era of claims of securitization, most such claims were completely false. But it created a vehicle in which sham conduits could be used to such an extent that it was virtually impossible to identify ANY real lender. This was done to cover-up theft of investor funds who thought they were buying certificates in a viable REMIC Trust that turned out not to exist and whose name was never used in the purchase of loans although it was used in foreclosures — only after the banks swore up and down that the trusts didn’t exist back in 2006-2009.

5. It was those stolen funds that funded “trading profits” from sham transactions including paying fees to originators who would have the borrower execute the note and mortgage in favor of the originator, who in turn transferred the paper to the various sham conduits. The actual debt never changed hands in any transaction because the owner of the debts, whether secured or not, was the investors whose money was illegal used to fund the whole venture.

This can demonstrated by using glasses of water. You have the investors pour some of their water (money) into a glass whose name is the underwriter of a so-called REMIC trust. The investor water is controlled by the underwriter who created a fictional entity (REMIC Trust) to issue bogus certificates that were entirely worthless. The water is owned by the investors. It never goes into the trust. It stays under the control of the underwriters. Just this week there was another multi-billion dollar settlement with investors who sued not for beach of contract (Bad loan underwriting) but for fraud.

So at all times the water is controlled, every drop of it, by the underwriter and the only movement of the water is when it is poured into separate pockets of the underwriter whose name does not appear on any of the so-called loan documents that are based upon a transaction that never happened — a loan of money by and from the originator to the borrower.

The underwriter used SOME of the money from investors to create the illusion of a loan transaction with the originator. So neither the originator nor the warehouse lender has any money in the deal (i.e., water). But endorsements and assignments are fabricated to create the illusion that someone purchased the loan. The only way that could have happened is if someone paid the investors. So the transaction didn’t happen but the paper did happen. All smoke and mirrors.

 

Please refer to page 24 of the attached brief (this was the appellate case Charles Marshall orally argued by phone this morning) for a negative spin on why table funding as a viable legal theory.
Charles Marshall, Esq.
Law Office of Charles T. Marshall
415 Laurel St., #405
San Diego, CA 92101
Investigator Bill Paatalo
BP Investigative Agency, LLC
P.O. Box 838
Absarokee, MT 59001
Office: (406) 328-4075

The West Coast Radio Show with Charles Marshall: California’s revised Homeowner Bill of Rights still offers Homeowner Protections

Thursdays LIVE! Click in to the:

The West Coast Foreclosure Show with Charles Marshall

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

Attorney Charles Marshall will discuss California’s Homeowner Bill of Rights today on the West Coast Foreclosure Show.

Loan servicers and banks have tried to convince Californians that California’s Homeowner Bill of Rights has been repealed effective on Jan. 1, 2018.   However, this is not completely true.  Only parts of the HOBR will be repealed and the Consumer Financial Protection Bureau’s Loss Mitigation Rules still apply.

Sections of the HOBR are being replaced by new rules that go into effect on January 1st, 2018.  Some of the new rules can actually cause compliance issues for loan servicers.

The new rules referred to as “HOBR II” remove no longer distinguishes between servicers conducting more or less than 175 annual servicers.   Civil Code Section 2923.55 will no longer be applicable in 2018, and is replaced with Section 2923.5 that defines all pre-Notice of Default (pre-NOD) contact requirements for Servicers of all sizes.

Although these two statutes are similar, the differences are for the written notice regarding service-members and the statement that borrowers can request a copy of the note, deed of trust, assignment, or payment history starting in 2018 will no longer be required.

The provisions in Section 2923.6 that prohibited dual tracking is replaced by Section 2924.11, which prohibits recording a notice of sale or conducting a foreclosure sale upon receipt of a “complete application for a foreclosure prevention alternative.” In the past, loan servicers were required to stay foreclosure proceedings upon receipt of a completed loan modification application.  Beginning in 2018, the dual tracking prohibition is expanded and now applies to all applications for all foreclosure prevention options.

Section 2924.11 currently does not require an appeal period following a written denial. Instead, the denial of a first lien loan modification application will state “with specificity” the reasons for the denial of the modification and will include a statement that the borrower may obtain additional information regarding the denial decision upon written request to the mortgage servicer. Interestingly, Section 2924.11 does not prohibit recording a Notice of Default when there is a pending complete foreclosure prevention alternative but the CFPB rules do.

Old Section 2923.6(g) allowed servicers to refuse to review multiple loan modification applications that did not involve a “material change in financial circumstances.” That provision was very vague, but was useful to loan servicers who could reject an application by denying that there was a material change in the homeowner’s financial circumstances.   Fortunately, that provision is gone at the end of the year and there is no replacement.

Servicers must now review multiple applications from the homeowner, regardless of whether there is a “material change in financial circumstances”.   However, this provision allows a servicer who finds itself in trouble with an issue of multiple applications an alternative.

Section 2923.7 remains the same as before, and requires that the servicer provide a single point of contact,  to communicate with the homeowner about the loss mitigation options and the application process, obtain documents, notify the borrower of any missing documents, and to provide access to information that accurately informs the homeowner of the current modification status.  This section applies to servicers who conduct more than 175 foreclosures annually.

Section 2924.10 expires, meaning servicers are no longer required to provide a written acknowledgment within five business days of receiving loan modification documents.  However, the CFPB rules still require an acknowledgement letter within five business days.

Under Section 2924(a)(5) Servicers and foreclosure trustees will no longer have to provide notice to the homeowner when a sale is postponed more than 10 business days.

Section 2924.12 allows a private right of action for homeowners to enforce HOBR, but it will now only apply to material violations of “sections 2923.5, 2923.7, 2924.11, 2924.17.”  The homeowner is only allowed injunctive relief prior to the Trustee’s Deed Upon Sale recording.

After the servicer records the Trustee’s deed, it is potentially liable for actual economic damages resulting from a material violation of the covered sections and, if those material violations are considered “intentional or reckless, or resulted from willful misconduct by a mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent,” the greater of treble actual damages or $50,000. This section allows for attorney’s fees for the homeowner if they prevail.

Section 2924.17 remains in effect, and states that all servicers, regardless of size, prior to recording or filing a declaration pursuant to section 2923.5, including a notice of default, notice of sale, assignment of deed of trust, substitution of trustee, or a declaration or affidavit in court relative to a foreclosure proceeding, must declare that it has reviewed reliable and credible evidence that substantiates the homeowner’s default and the right to foreclose.  This provision includes the borrower’s loan status and loan information, but some government enforcement provisions also expire at the end of 2017.

Servicers will be challenged to handle completed modification packages that are received shortly before a foreclosure sale, but must comply with the new HOBR sections that require that all foreclosure actions must stop when a complete foreclosure application is received.  However, the new HOBR sections do not directly address what happens when a servicer receives a complete loan modification application minutes or hours before a foreclosure sale occurs.

Because the new HOBR extends the dual-tracking restriction on all preventative foreclosure alternatives, not only to loan modifications, the homeowner is afforded options they didn’t have previously.  Homeowners should keep detailed notes regarding the actions of their loan servicers, and document every transaction and conversation when applying for a loan modification.

To Contact Charles Marshall:

Charles Marshall, Esq.
Law Office of Charles T. Marshall

The Phantoms of Foreclosure: Phantom Creditors, Trusts and Debt

by Jay Guggenheim

Hurry!  Sign up for the ‘Death of a Salesman’ seminar on Monday at 4pm Eastern here.

 

Neil Garfield, attorney Charles Marshall and investigator Bill Paatalo discuss how mortgage servicers are collecting phantom debt on behalf of phantom creditors by creating fabricated and forged documents on the Neil Garfield show.  Servicers counterfeit mortgage notes and pursue collection of this ‘debt’- but who do they send the proceeds they collect to, if there is no true creditor or funded trust that can be identified, or can accept payments from the servicer?

It is now known that:

  • The banks funded themselves instead of the trusts which never really existed (phantom trusts).
  • The banks covered up their theft of investor money by originating or buying loans with investor money and not trust money.
  • The theft has been the subject of settlements in which the owner of the debt — the investors — is paid off with cash and “resecuritization” in which actual loans were “sold” into a new trust (Like Zuni) by a party who STILL didn’t own them (phantom sales).
  • The proceeds of judicial and nonjudicial sales do not go to investors but back to the “underwriters” of nonexistent worthless certificates issued by nonexistent trusts that are registered nowhere and unfunded (phantom trusts).
  • The underwriter acts as “Master Servicer” for the phantom trust and collects “servicer advances” that were neither advances nor from the servicer, but rather a return of investor capital even if it was OTHER investors.
  • The “Trustee” of the Trust is not a Trustee either in writing nor in practice (phantom trustees).
  • We know the banks are acting on their own behalf and not on behalf of the investors or the trusts.

What we still don’t know- is where do the proceeds collected by the servicers from homeowners go- if there is no Trustee or Trust? 

The servicers are trying a ‘hide in plain site’ strategy by deliberately adding new players to the chain of title and switching servicers so another opaque level is created.

  1. Servicers are often changed the moment a homeowner goes into default.  Therefore, if litigation ensues, the servicer won’t have to reveal who payments are being forwarded to because no payments are being made, and
  2.  Servicers often change immediately after a foreclosure sale occurs so it isn’t disclosed where the sale proceeds went to.

Therefore, Neil Garfield suggests that homeowners and attorneys subpoena, not demand in discovery, who receives/received payments from the servicer, and name not only the current servicer in litigation, but former servicers as well.   Charles Marshall points out that he sees this servicer-switch particularly with homeowners who prove difficult or litigious, and to create an additional layer to conceal the truth.  The servicer transfers are an attempt to launder the papertrail.  He also says that this strategy makes it more difficult to discover who the true lender at origination was.

 

Neil Garfield says this plan is standard operating procedure now and that he can “imagine a room full of lawyers trying to plan out a strategy to confuse the homeowners, attorneys and courts- first they must make the money and ownership transfers difficult to understand, and then they must devise a system that makes it difficult for pro se litigants to get the information they need to create a defense.”

Back in 2007 and 2008 Garfield said he was sending out QWRs on behalf of homeowners who were not in default and saw an interesting pattern.  The homeowners who were current, and not in foreclosure, would receive letters providing a payoff amount, but no copies of note or assignments; but homeowners in foreclosure would receive payoff amounts including endorsed notes and assignments, to establish a credible chain-of-title.  Thus, those in foreclosure received a full QWR response including fabricated and robosigned documents that created the appearance of legitimacy.

Neil Garfield says that the banks and servicers have created an Industry of Fraud where people can create an entity, purchase lists of old debt that may or may not be valid, and attempt to collect.  Most people will tell the debt-collector to prove it or go to hell, but there is a percentage of poor, disadvantaged or unsophisticated people who will pay up.  Mortgage servicers and REMIC trustees are following the same business model by attempting to collect on debt they can’t prove they own without resorting to fabricated and forged documents.

Investigator Bill Paatalo says that in all of the years of investigating the trusts he has not yet seen any evidence that the trusts were funded or the entity foreclosing on the home purchased the debt legitimately.  In litigation, he never sees a credit or certificate holder identified and the banks rely on smoke and mirrors to collect on the phantom debt.  He said that he recently had a client that was not in default but was curious about who owned his loan.  Bill’s client received a response from Aurora emphatically stating that the note had never been transferred and would never be transferred unless there was a default.  Aurora was perplexed why a homeowner that was not in default was concerned about the ownership of his loan.  Paatalo claims he has called the GSEs and Hud who refuse to return his phone calls so he can verify a Power of Attorney.  He says it is clear that the Power of Attorneys are being substituted for the missing assignment of mortgages- because Power of Attorneys are typically not recorded in the county records.

Phantom debt is being collected on behalf of phantom creditors and the nonexistent party is being papered over by pledging the loan to a trust that doesn’t exist, as agents of agents of agents, and false Power of Attorneys and Attorneys in Fact.  The scheme creates such a convoluted ‘fact’ pattern so that homeowners and their attorneys must try to untangle the ownership knot thus requiring hours and  hours of work.  Garfield points out that this layering, or laddering as Goldman Sachs calls it, id a deliberate attempt by the banks, to confuse whoever is bothering them.

For example, there may be a signature and the name of a corporation on a document, below  it will show Bank of America as successor to Lasalle Bank as Trustee, as Trustee for XYZ trust, as Attorney In Fact, for x entity.  This deliberate obfuscation should be brought to the attention of the court and is a strategy to push out time and space- to buy time and also for attorneys to create additional billing hours.

Neil Garfield calls this strategy of the major investment banks, the “real thiefs in interest” because they do not posses a party who can be identified as the “true party in interest” as required to declare a default or foreclose.  The investment banks create puppet attorneys who do their dirty work, and because of this risk, the lawfirms facilitating this crime are paid handsomely.

Bill Paatalo recently who is an expert on the ‘hide, conceal, and cover’ strategies by the banks, recently obtained a copy of a itemized settlement statement from a lawfirm defending a USBank/Chase foreclosure.  The bank had paid over $450k and over 1,224 billable hours to defend against a simple foreclosure action, to buy a Cynthia Riley issue and hide the fact there was no certificate holders.  Paatalo points out that the head attorney was paid $628 an hour for four months of full 40-hour work weeks.   It is likely the mortgage wasn’t a fraction of this amount, but it shows that the banks are afraid. He points out that it is unlikely that any investors would authorize that type of expenditure if they existed- but would look for an equitable solution.

Garfield says to take the billing expense issue one step further, and states that attorney fees are deliberately ran up by law firms defending the banks due to the risk of the work being done.   Attorneys submitting forged and fabricated documents are putting their careers on the line, therefore they build in a profit for undertaking that much risk.

Additionally, the lawfirms have software that can recreate the record, cover up bonuses, move numbers around and create legitimate billing hours that were never done.  This ‘bonus’ is overlooked by the bank as compensation for risk taking.    Listen to the audio recording above to listen to investigator Bill Paatalo discuss a recent tax settlement where the certificate holders state that they have no right to recover from the homeowner, and no right to enforce the mortgage or note.

And lastly, Neil Garfield educates homeowners that the chances of proving in court ‘what really happened’ will likely not happen for sometime, if ever, and the goal of the homeowner and his or her attorney should be to reveal the GAPS in what is being assumed as the foreclosure path.

 

 

 

 

 

 

The Neil Garfield Show: Challenge your Mortgage Servicer and Successors- Overcoming Legal Presumptions

Thursday Rebroadcast! Click in to the The Neil Garfield Show

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

NEW MAIN NUMBER: 202-838-NEIL (6345).

Tonight’s show is a rebroadcast from June 23, 2016.  The episode is still extremely relevant to fighting fraudulent foreclosure.

Neil Garfield and southern California attorney Charles Marshall discuss the recent Massachussetts case US Bank v. Bolling.  For years legal presumptions attached to “facially valid” documents and the banks and servicers were able to argue through their sham surrogates (“successors”) that any inquiry beyond the paper trail was irrelevant because the the issue had already been decided in the early motions of the case wherein those legal presumptions were used to sustain the implied perspective of the banks, servicers, and their surrogate successors. The tide has changed.

Charles Marshall, Esq. attorney in Northern California joins us again as the featured attorney. Charles has been a long time supporter of the livinglies blog and has contributed to the analysis and strategies that are reported on the blog. He has exceptional critical thinking skills and the ability to understand the strategic winds that are blowing. Things are changing rapidly. We’ll be talking about Yvanova, Keshtgar, Lundy, TILA Rescission and current trends.

Charles Marshall

Law Offices of Charles T. Marshall

415 Laurel St., #405

San Diego, CA 92101

cmarshall@marshallestatelaw.com

Phone 619.723.7071

Fax 866.575.7413

Get a Consult!

https://www.vcita.com/v/lendinglies to schedule, leave message or make payments.

Our Services:  https://livinglies.wordpress.com/2016/04/11/what-can-you-do-for-me-an-overview-of-services-offered-by-neil-garfield/

Tonight’s Guest on the Neil Garfield Show: On the Heels of Yvanova come Sciarratta and Gieseke

legal-room

  California Foreclosure Justice

Click in to tune in to:  The Neil Garfield Show

Or call in at (347) 850-1260, Tonight at 6 pm EST Thursday.

The legal landscape is changing in California.  After a foreclosure drought, Yvanova opened a floodgate of new decisions that bolster a homeowner’s right to challenge a fraudulent foreclosure pre- and post-sale.

Joining us tonight on the Neil Garfield Show is San Diego attorney Charles Marshall who had a case vacated in Gieseke v. Bank of America, when BOA won on summarily without having to provide an oral argument based on a lack of standing.  The case was remanded the case back to District Court where it will be reconsidered. Gieseke Remand Order 5 20 16 from 9th Circuit.

Charles will discuss Gieseke in regards to the recent California Yvanova and Keshtgar decisions.
Marshall Law
Attorney Charles Marshall
Email: cmarshall@marshallestatelaw.com
Website: marshallesquire.com
Phone number: 619.807.2628, 619.755.7825

Note:Attorneys Stephen Lopez and Charles Marshall are not affiliated.

California’s New Gieseke Decision-A New Playing Field Emerges Post-Yvanova

 

Charles Marshallby Charles Marshall, Esquire

Gieseke Remand Order 5 20 16 from 9th Circuit

THE FOLLOWING ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
On the heels of Sciarratta v. US Bank, in the wake of Keshtgar v. US Bank, under the umbrella of Yvanova v. New Century Mortgage, comes now a unifying decision which applies at a base level at least these California Supreme Court and appellate decisions to the non-judicial firmament throughout the Greater West, that of Gieseke v. Bank of America.

Gieseke is a 9th Circuit decision, thus making itself persuasive if not controlling law in California and 9th Circuit states outside California, including Oregon, Washington, Montana, Idaho, Nevada, Arizona, Alaska, and Hawaii. While it is not mandatory for 9th Circuit Fed Courts in these states to follow Gieseke, due to the causes of action at issue being primarily state-based property claims as opposed to Fed-based claims, the persuasive authority of Gieseke will doubtless be useful and may prove to be compelling in many a future non-judicial foreclosure case in which the ‘borrower’ (never concede even, nay especially, fundamental terms in case pleading) is the Plaintiff.

It is also important to keep in mind that Federal authority is not controlling in a state litigation matter. Nevertheless, the persuasiveness of Fed to State and State to Fed authority must be acknowledged and understood among foreclosure litigants.

One of the reasons Glaski v. Bank of America failed largely to get traction until revived by Yvanova, is that even though it was controlling authority in the 5th Appellate District of California, and very much persuasive authority elsewhere in California, California’s Fed Courts tamped this brave and groundbreaking decision down from an oak to a stump, in a matter of months, following its publication in August of 2013.

Now with Gieseke, the entire 9th Circuit has greatly amplified the already-dramatic impact of Yvanova and its progeny Keshtgar and Sciarratta. Indeed, the way the Gieseke decision came to be is an event of great moment for this long-time foreclosure warrior-attorney. The underlying Gieseke case, which I had filed in the Northern District of California Fed Court on behalf of my clients back in late 2013, and appealed many months ago, was set for oral argument on July 5, 2016 before the 9th Circuit.

The Clerk of the 9th Circuit Court issued an order-to-show-cause (OTS) on May 2, 2016 with the breathtaking directive to the institutional defendants in the case, including Bank of America, to wit: why shouldn’t we the 9th Circuit simply remand this case summarily, in light of the Yvanova decision.

The institutional defendants had their best appellate firm at the ready, Severson Werson, and put forward a shallow but superficially credible case. I ‘marshalled’ (you’ll forgive the pun) my extensive network of resources, putting forward my considerably more credible Neil Garfield-inspired and ready arguments, and awaited the decision which just came down May 20: Gieseke Appellants win summarily, without even having to go to oral argument, which hearing was vacated upon the remand of the case to District Court, where it is to be reconsidered in light of Yvanova and Keshtgar.

Keep in mind that while Yvanova and Sciarratta are both post-auction cases, Keshtgar, and now Gieseke, are pre-auction, post-NOD cases. Which means at this point in California, through the California Supreme Court and now the 9th Circuit, all post-NOD lawsuits will have at least persuasive authority battering the opposition from the moment of filing. Strategically for once, Californians litigating non-judicial foreclosure matters have real options in choosing venue.

Where the focus of a case is directed to wrongful foreclosure and quiet title, state courts may be the better venue, since Yvanova and Keshtgar are controlling authority in all State Courts at this point. On the other hand, where rescission is an important cause of action in a compliant, a Federal venue using Gieseke for non-rescission state-based claims litigated in the same Federal venue may be the best way to frame a case.

Remember, Federal authority is persuasive, not mandatory, when applied to state claims. On the other hand, the breakthrough case of Jesinoski v. Countrywide Home Loans is controlling authority throughout the US on the issue of rescission (always a Fed-based issue vis a vis the TILA Federal law), as the decision came out of the US Supreme Court.

One might reasonably anticipate at this juncture to wonder what might one expect in light of the above cases, in trying to move a given plaintiff’s foreclosure case forward. Here follows a primer: For starters, from case inception, when facing a sale date, TROs will be much more readily granted. Be mindful that the standard applied to granting a preliminary or permanent restraining order, and derivatively a TRO, is whether the movant for an injunction is likely to prevail on the merits in the litigation at issue.

Before Yvanova, getting TROs in foreclosure-related matters was fraught with difficulty, though still doable in a number of cases, depending upon the district, the court, etc, although winning the preliminary injunction hearing to follow was another matter typically. With Keshtgar and Gieseke (pre-auction holdings), a TRO and preliminary injunction movant is likely to find getting the relief requested is much more straightforward and readily available. Also take note that TROs and their kindred hearings are much more easily brought, procedurally, in state courts, as opposed to Federal courts, at least in California.

As a still-relatively new lawsuit moves forward in the new dispensation of our post-Yvanova foreclosure world, plaintiffs will likely face as before, a surfeit of demurrer filings from the usual-suspect institutional servicers and sales trustees, such as Chase and Quality Loan Service Corp. Do not be feint of heart. New playing field, to which our opposition will have trouble adjusting much more than our side will. The new field largely benefits us, and will doubtless delimit and one hopes eventually demoralize our opposition. Can’t wait for the role reversal.

If California courts, state or Federal, are working properly, demurrers in this new litigation climate should routinely be overruled where the proper causes of action are pled, such as wrongful foreclosure, various Homeowner Bill of Rights statutory sections such as California Civil Code 2924.17 and 2923.55, and quiet title—this latter cause of action I believe will see a great revival with our side finally getting standing to present our arguments.

Equally important in this new terrain, is of course to plead void not voidable, when it comes to addressing the broken chain of assignments, the front-dating, back-dating, and robo-signing associated with same assignments.

Expect to see many motions for summary judgment, and the occasional judgment on the pleadings, from our not-so-friendly and often ruthless defendants, who will resort to these at present little-used devices to try and get out of a case they are no longer able to exit via a demurrer.

So yes, be heartened as a plaintiff when you see the opposition file an Answer as opposed to a demurrer (State level) or motion to dismiss (Fed). Do be cautious though, as a motion for summary judgment may soon follow.

Which brings us to discovery: This aspect of our litigation will grow dramatically, as our cases move to trial, instead of being snuffed in a proverbial litigation crib. More about the useful tool of discovery in a future blog post. Also on deck for a future blog post: Trial practice in our foreclosure cases, and appellate practice.

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California-licensed attorney Charles T. Marshall (CA Bar # 176091) earned his Juris Doctorate in 1992 from the University of San Diego School of Law. His practice includes Foreclosure Relief, Civil Litigation, Bankruptcy, Immigration, Estate Planning and all facets of Personal Financial Management.

Charles Marshall can be contacted at:

415 Laurel Street, Suite 405 San Diego CA 92101 US
+1.530.888.9600
Charles@MarshallLawCa.com

Website:  http://www.marshalllawca.com/home.html

 

 

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