9th Circuit Uses Yvanova Reversing Trial Court

It seems obvious that if a complete stranger to the transaction (see the wording from the San Francisco study), is attempting to enforce a debt or seek a foreclosure, they should have no rights at all. And if a party accepts a modification application, they are making several representations about their authority and what they will do with the application. But the courts have resisted all such notions until very recently.

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

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see 9th Circuit Quotes Yvanova13-17297

This is the stuff that  makes lay people crazy.

Plaintiff Newman filed a lawsuit in California to stop a foreclosure claiming BONY didn’t have the right to foreclose. The trial court dismissed his case because he supposedly didn’t have standing to raise that issue. Then he filed an appeal. During his appeal, the Yvanova decision was released.

So the 9th Federal Circuit applied Yvanova to the pending appeal and reversed the trial court, adding that there could be an action, as Newman had brought, to hold parties responsible for handling of a modification request. That should be a no-brainer but the courts keep getting twisted up in the idea that the banks need to be protected when it is the homeowners who need protection.

Of course for good measure the decision is announced as not to be used for precedent — but it is difficult to see how it could not be precedent.

The bottom line, I think, is that the Courts are very reluctantly coming around to the view that they will allow those actions or defenses that they must allow while they allow wide latitude to pretender lenders. It’s another step toward equality under the law but we are a still quite some distance to a level playing field.

It seems obvious that if a complete stranger to the transaction (see the wording from the San Francisco study), is attempting to enforce a debt or seek a foreclosure, they should have no rights at all. And if a party accepts a modification application, they are making several representations about their authority and what they will do with the application. But the courts have resisted all such notions until very recently.

The trend over the last decade is giving rise to a new fraudulent industry. Posing as the creditor and even suing upon the debt is cloaked in presumptions that the fabricated documents are true, putting the burden on the average citizen to disprove a nonexistent fact. And accepting a modification application as part of a larger scheme to force the homeowner into foreclosure was and might still be OK, because servicers supposedly are under no duty to do anything — not withstanding Dodd Frank and other statutes and regulations.

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Rescissions and Preemptive Lawsuits by Borrowers — 2 Things the Courts Dislike the Most.

For short-term results it is absolutely essential that discovery be pressed as hard as possible and that attorneys prep for a punishing cross examination of the corporate representative of the company claiming to be the servicer for the company that claims to be the trustee or successor for a trust that by implication claims to own the loan but won’t allege that. Layers upon layers.

I have heard dozens of judges caution the “banks” that they better show up with someone who doesn’t need to place a call or wait to get authorization. But that is exactly what they do.

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Listen to Attorneys Neil Garfield and James Randy Ackley discuss this issue:

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

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Based upon reports coming in across the country it appears that we are actually receding from the application of law again. The two things that the Courts obviously don’t like and essentially refuse to enforce are preemptive lawsuits and TILA Rescission, even where they give it lip service approval. What are now known as preemptive lawsuits in which the borrower tries to head off their title and collections problem by demanding the real data on identification of a creditor who owns the debt, note and mortgage or deed of trust are a bridge too far although California looks like it is edging toward that the fastest amongst the states. See Yvanova decision

In both cases the Courts are grasping at straws because of the fear of undermining the entire banking system causing another financial collapse. As I did in 2008-2009 I am predicting that these cases will be decided in favor of the borrower. And again it might take more years to get there. Having examined pleadings and orders from across the country there is no doubt in my mind that everything we have said is true and these are useful tools for the borrower.

But for short-term results it is absolutely essential that discovery be pressed as hard as possible and that attorneys prep for a punishing cross examination of the corporate representative of the company claiming to be the servicer for the company that claims to be the trustee or successor for a trust that by implication claims to own the loan but won’t allege that. Layers upon layers.

In 2008 I had a conversation (previously reported) with one of the architects of this scheme and he predicted that the legal presumptions attached to the notes and mortgages and assignments would overcome any factual rebuttal regardless of how persuasive the rebuttal. I thought he was wrong. He was right, but back then I could tell he wasn’t as sure as he is today. It worked. Millions of foreclosures proceeded in favor of entities who had already stolen the money from investors and now were stealing their security.

Proof of all my basic premises is abundantly clear but well hidden by confidential settlements under seal. Cash offers to settle the case seem almost always to produce a settlement that includes damages for wrongful foreclosure.

Mediations continue to proceed almost exclusively with “representatives” who lack full settlement authority and truth to be told, they lack any settlement authority. This point is getting under the skin of many judges and should be pressed. I even said to one judge who ordered mediation that I questioned when his orders “meant anything at all.” He was upset but he started entering other orders that required real action by my opposition.

Mediations by definition under Supreme Court rules require the presence of the parties with full settlement authority. Instead the alleged servicer shows up with representative that has only one duty — handover an application for modification without any discussion or authority to settle. That is the stuff of motions for sanctions. I have heard dozens of judges caution the “banks” that they better show up with someone who doesn’t need to place a call or wait to get authorization. But that is exactly what they do and frequently they get away with it. Don’t expect sanctions to be ordered until the “bank” fails to “show up” more than twice.

Usually the attorney represents the servicer and if pressed, sometimes you can get an admission that the attorney is not able to assert they represent the plaintiff. The representative also might admit that he is there on behalf of the servicer but not the Plaintiff. In those cases I think you are well on your way to getting sanctions, but not until you are ordered back into mediation multiple times.

The problem remains the same — the servicer derives its alleged authority from the Plaintiff who derives its power to enforce from legal presumptions derived from possession and its declaration that it is the “holder.” The Plaintiff rarely alleges that it owns the debt, loaned the money or anything like that and they never allege that they are holders in due course which would mean, by definition, that the trust paid for the loan. The trusts did not pay for the loan and the creditor is, at least according to some live testimony I got in court, a group of unnamed investors. By definition then in hearings for sanctions relating to mediation, you can elicit admissions that defeat the foreclosure.

Once you get to the fact that the Trust never was in operation and was never funded it goes without saying that as an inactive business with no history it could not possibly have paid for the debt or even accepted the assignment. Having cut the chain (the hip bone is connected to the thigh bone etc) the strawman figure must collapse. NO authority flows from such an entity —especially when the representative says the creditors are the investors.

My prediction is that while it may still take some time, the courts are eventually going to routinely require real proof instead of relying exclusively upon legal presumptions arising from fabricated, forged, robo-signed documents. Real proof means real transactions — something that will unwind claims by the servicer and Trustee or successor like pulling a thread from a poorly made sweater.

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Realities of Rescission Litigation

Since it appears that Judges around the country are finding wiggle room where none exists, it may be wise to add the fraud charges to the initial complaint seeking enforcement of rescission, injunction, and quiet title.

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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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Just a short note on why people should have us analyze their situation before they get into rescission litigation. It is true that there should not be any litigation where the rescission was sent, received and the “creditor” did nothing for more than 20 days and frequently more than 1 year and even several years. But Judges are continuing to resist the application of the procedure clearly set forth in TILA rescission slamming the door, where they can, based upon a presumptive finding of fact that the loan contract was consummated, and presuming it was consummated when the documents were apparently signed. Once again we are dealing with presumed facts that are most likely untrue.

And once again, despite Jesinoski, the courts are reading into the statute on procedure and saying that various conditions apply when the statute and the Supreme Court say otherwise. All rescissions are effective when mailed regardless of whether or not they are disputed.

So after due consideration I am inclined to say that even though it goes against what I think is correct procedure, it might be wise to consider filling the complaint with your allegations of fraudulent concealment etc that might equitably toll the 3 year expiration of rescission, and might convince the judge that there are questions of fact that need to be raised and just possibly might force the defendants to answer instead of relying on their motion to dismiss.

And this would enable the filer to argue against the use of common legal presumptions because the documents are not trustworthy when they are backdated, fabricated, forged, robo-signed etc. If the Judge agrees with that proposition then there is no basis on which the Judge can say the three year expired, the loan was purchase money, etc. It’s all thrown back on the “lending” side to allege the facts and prove them with legal standing — i.e., without the use of the note and mortgage.

Their singular problem might be revealed — that they don’t have an identified creditor and they have no way of finding the creditor because the money for the loans actually came from a dynamic dark pool.

Comments welcome.

https://livinglies.wordpress.com/2016/05/09/how-to-prepare-for-a-consult-with-neil-garfield/

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Unanimous Montana High Court Affirms $426,000 Damages Against Bayview

the “mistakes” of “lenders” are neither mistakes nor are the parties seeking foreclosures “lenders” or “servicers.”
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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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see http://helenair.com/news/state-and-regional/montana-high-court-upholds-award-over-mortgage-foreclosure/article_29fd6721-27a7-59f1-b3d3-6b5da1077d1d.html

In yet another case of illegal conduct in a foreclosure the high Court of Montana affirmed an award of $427,000 against Bayview who will undoubtedly get the money from CitiMortgage for whom they were fronting the foreclosure. As these cases increase in their frequency, judicial attitudes will change — specifically that the “mistakes” of “lenders” are neither mistakes nor are the parties seeking foreclosures “lenders” or “servicers.”

Some quotes from the case that are self-explanatory:

The total award includes damages and attorney’s fees awarded because Bayview Loan Servicing LLC of Coral Gables, Florida — despite losing their case — notified Robin and Kathleen Jacobson that it was adding over $50,000 of its attorney’s fees to their mortgage.

“We do not find error with the District Court’s damage award because it is reasonable compensation for the substantial injury and financial detriment suffered by the Jacobsons,” state Supreme Court Justice Michael Wheat wrote in the 5-0 ruling Wednesday.

The Jacobsons’ problems with Bayview haven’t ended, the couple’s attorney, Ray Kuntz, said Thursday. They can’t determine from county records to whom they should be making their mortgage payments and on Tuesday, Bayview sent them another default notice, Kuntz said.

Over the next several years Bayview encouraged the Jacobsons not to make mortgage payments so they could qualify for a loan modification, made false promises to them about modifying their loan and then misinformed them about their rights, court documents said.

Call now for our special on 1/2 hour consult with Neil Garfield, expert in the securitization of alleged mortgage loans. 954-495-9867 or 520-405-1688.

The Mortgage Loan Schedule: Ascension of a False Self-Serving Document

At no time were the Trusts anything but figments of the imagination of investment banks.

As an exhibit to the alleged Pooling and Servicing Agreement, the Mortgage Loan Schedule” appears to have legitimacy. Peel off one layer and it is an obvious fraud upon the court.

The only reason the banks don’t allege holder in due course status is because nobody in their chain ever paid anything. The transactions referred to by the assignment or endorsement or any other document never happened — but they are  wrongly presumed to be true.

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

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

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I’m seeing more and more cases where once again the goal post keeps moving, in order to keep the court and foreclosure defense counsel off balance. Now it is the attachment of a “Mortgage Loan Schedule” [MLS] to the PSA. As an exhibit to the alleged Pooling and Servicing Agreement, the “Mortgage Loan Schedule” appears to have legitimacy. Peel off one layer and it is an obvious fraud upon the court.

Here is my thought. The MLS supposedly attached to the PSA never has any proof as to when it was attached. It has the same problem as the undated endorsement on the note only worse. It is not a facially valid document of transfer. It relies, derivatively on the PSA that was created long before an MLS existed even if they were telling the truth (which they are not — the trusts are empty).

The securitization process is described in the Pooling and Servicing Agreement along with the parties who are involved in the purchase, Sale and ownership of the alleged loans that were “purchased” by the Trust. But there was no purchase. If there was a purchase the bank would assert status as a holder in due course, prove the payment and the borrower would have no defenses against the Trust, even if there were terrible violations of the lending laws.

First you create the trust and then after you have sold the MBS to investors you are supposed turn over the proceeds of the sale of mortgage backed securities (MBS) to the Trustee for the Trust. This never happened in any of the thousands of Trusts I have reviewed. But assuming for a moment that the proceeds of sale of MBS were turned over to the Trust or Trustee THEN there is a transaction in which the Trust purchases the loan.

The MLS, if it was real, would be attached to assignments of mortgages and bulk endorsements — not attached to the PSA. The MLS as an exhibit to the PSA is an exercise in fiction. Adhering strictly to the wording in the PSA and established law from the Internal Revenue Code for REMIC Trusts, and New York State law which is the place of origination of the common law trusts, you would THEN sell the loan to the trust through the mechanism in the PSA. Hence the MLS cannot by any stretch of the imagination have existed at the time the Trust was created because the condition precedent to acquiring the loans is getting the money to buy them.

The MLS is a self serving document that is not proven as a business record of any entity nor is there any testimony that says that this is in the business records of the Trust (or any of the Trust entities) because the Trust doesn’t have any business records (or even a bank account for that matter).

They can rely all they want on business records for payment processing but the servicer has nothing to do with the original transaction in which they SAY that there was a purchase of the loans on the schedule. The servicer has no knowledge about the putative transaction in which the loans were purchased.

And we keep coming back to the same point that is inescapable. If a party pays for the negotiable instrument (assuming it qualifies as a negotiable instrument) then THAT purchasing party becomes a holder in due course, unless they were acting in bad faith or knew of the borrower’s defenses. It is a deep stretch to say that the Trustee knew of the borrower’s defenses or even of the existence of the “closing.”By alleging and proving the purchase by an innocent third party in the marketplace, there would be no defenses to the enforcement of the note nor of the mortgage. There would be no foreclosure defenses with very few exceptions.

There is no rational business or legal reason for NOT asserting that the Trust is a holder in due course because the risk of loss, if an innocent third party pays for the paper, shifts to the maker (i.e., the homeowner, who is left to sue the parties who committed the violations of lending laws etc.). The only reason the banks don’t allege holder in due course status is because nobody in their chain ever paid anything. There were no transactions in which the loans were purchased because they were already funded using investor money in a manner inconsistent with the prospectus, the PSA and state and federal law.

Hence the absence of a claim for holder in due course status corroborates my factual findings that none of the trusts were funded, none of the proceeds of sale of MBS was ever turned over to the trusts, none of the trusts bought anything because the Trust had no assets, or even a bank account, and none of the Trusts were operating entities even during the cutoff period. At no time were the Trusts anything but figments of the imagination of investment banks. Their existence or nonexistence was 100% controlled by the investment bank who in reality was offering false certificates to investors issued by entities that were known to be worthless.

Hence the bogus claim that the MLS is an attachment to the PSA, that it is part of the PSA, that the Trust owns anything, much less loans. The MLS is just another vehicle by which banks are intentionally confusing the courts. But nothing can change the fact that none of the paper they produce in court refers to anything other than a fictional transaction.

So the next question people keep asking me is “OK, so who is the creditor.” The answer is that there is no “creditor,” and yes I know how crazy that sounds. There exists a claim by the people or entities whose money was used to grant what appeared to be real residential mortgage loans. But there was no loan. Because there was no lender. And there was no loan contract, so there is nothing to be enforced except in equity for unjust enrichment. If the investment banks had played fair, the Trusts would have been holders in due course and the investors would have been safe.

But the investors are stuck in cyberspace without any knowledge of their claims, in most instances. The fund managers who figured it out got fat settlements from the investment banks. The proper claimant is a group of investors whose money was diverted into a dynamic commingled dark pool instead of the money going to the REMIC Trusts.

These investors have claims against the investment banks at law, and they have claims in equity against homeowners who received the benefit of the investors’ money but no claim to the note or mortgage. And the investors would do well for themselves and the homeowners (who are wrongly described as “borrowers”) if they started up their own servicing operations instead of relying upon servicers who have no interest in preserving the value of the “asset” — i.e., the claim against homeowners for recovery of their investment dollars that were misused by the investment banks. An educated investor is the path out of this farce.

 

PRESUMPTIONS, PLEADING, PROCEDURE AND PROOF REALLY MATTER IN FORECLOSURE ACTIONS

In the final analysis nearly all foreclosures have been rubber-stamped based upon facts that are presumed to be true but which are untrue.
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In my opinion every case lost by homeowners has been the result of the court using legal presumptions and shifting the burden of persuasion onto the homeowner who has been stonewalled, with the court’s help, during discovery and stonewalled before there was any foreclosure when the homeowner submitted qualified written requests and debt validation letters. Hence the court shifts the burden to the homeowner and then helps the bank by not allowing access to information that would prove that the presumed fact is rebutted by competent evidence.
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THE FOLLOWING ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.

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

As if it isn’t hard enough to defend foreclosure actions, pro se litigants and lawyers alike get caught up in a spiral of presumptions that are said to apply because of state law.
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Florida Statute 90.302 makes it clear that if there is credible evidence to sustain a finding of nonexistence of the presumed fact then the existence of nonexistence of the presumed fact shall be determined from the evidence without regard to the presumption. In other words the banks must plead the facts upon which they want relief and not rely upon presumptions of fact that are clearly untrue or at least debatable. After they plead those facts they must prove those facts. In other words the burden of persuasion is on the banks to show the fact is true instead of being on the hapless homeowner to show that the fact is untrue. The only party who actually knows, and the only party that has access to the information that would prove it one way or the other is the bank or entity that is initiating foreclosure.
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This provision is often overlooked — especially when arguing to compel discovery. Patrick Giunta, Esq. (Ft. Lauderdale)  has had success in demanding discovery that would rebut the rebuttable presumption. The bank responded with alarm.
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For example, the promissory note that is facially valid (complies with statute to be a negotiable instrument) enables the bank to invoke the legal presumption that everything in the note is true. That in turn gives rise the presumption that the Payee in that note is a lender.
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But that is also a rebuttable presumption. So discovery requests for information that might lead to the discovery of admissible evidence showing that the Payee was not a lender, but rather a broker would be appropriate. Courts have almost uniformly used the rebuttable presumptions as though they were conclusive presumptions. During discovery they will most often deny requests for information about one instrument or another and the underlying presumption of a real transaction for which the note is evidence.
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The note is evidence of the debt, not the debt itself. Theoretically at least, demanding information about that underlying transaction should produce no prejudice to the bank. But he fight on presumptions is so intense that it leads one to conclude that the banks are winning cases based upon facts that are not true but taken to be true as a result of the application of legal presumptions.
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It isn’t enough to know that the loans and foreclosures are fraudulent generally. It must be specific to the case. But I am leading the attack now on legal presumptions. I am attempting to use the information in the public domain and, where possible, inconsistencies in specific case filings, to show that the rebuttable presumptions that are normally applied should not be applied because of the common wording in the statutes that say if there are circumstances that show lack of trustworthiness about what appears to be a facially valid document then the party who proffers that document must prove their case without the benefit of legal presumptions. This, if accepted, would shift the burden of proof squarely on those attempting to use the vehicle of foreclosure, requiring them to prove the actual loan from a specific party, and the actual ownership of the debt by a specific party.

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The argument from the banks should be interesting. On its face there is obviously no prejudice requiring the banks to prove a fact that is true. What if the presumed fact is untrue? The banks will fight it because without the presumption they cannot prove the truth of  the matter asserted in the “facially valid” document. My proposition is this: they can’t prove those facts because they are not true. In the final analysis nearly all foreclosures have been rubber-stamped based upon facts that are presumed to be true but which are untrue. In my opinion every case lost by homeowners has been the result of the court using legal presumptions and shifting the burden of persuasion onto the homeowner who has been stonewalled, with the court’s help, during discovery and stonewalled before there was any foreclosure when the homeowner submitted qualified written requests and debt validation letters.
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Hence the court shifts the burden to the homeowner and then helps the bank by not allowing the homeowner to access information that would prove that the presumed fact is rebutted by competent evidence.
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Whether this attack will be allowed is another story. The underlying bias is that regardless of the malfeasance of the banks, the homeowner shoulders the entire burden of the wrongdoing. As stated in Yvanova while legally it matters whether the homeowner owes any money or anything else to the initiator of a foreclosure, in practice this is NOT followed in most court actions. The simple truth is that the courts are allowing the banks to bend, break or twist the rules and laws — until the bank wins. This obviously is wrong on many levels. The decisions being made during this 10 year holocaust will come back to haunt us on a variety of levels. These cases will be cited to enable fraudsters of all stripes and colors to escape liability and even accountability in civil and criminal courts.

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I have marveled, for example, at how the small fish have been convicted of white collar crime for issues relating to “mortgage fraud” when in fact they were doing exactly what their “victims” had wanted them to do. They were merely tossed under the bus to make it appear that a mega bank would never have sanctioned such behavior. In truth, they not only allowed continuous violations of lending laws, they invented most of the ways that lending laws were ignored. And the violations continue because the banks are obviously immune from serious prosecution.
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Both political parties are responsible for that and thus all three branches of government are infected with what has repeatedly been shown to be a fatal virus — fatal to the middle class who make up the vast majority of the consumer driven economy. We are undermining ourselves every time another foreclosure is allowed. In each foreclosure we remove another family from the ranks of consumers whose purchases normally make up 70% of GDP.  Look that up — the economists have replaced consumer purchases with the movement of paperwork linked to worthless financial instruments. Where the financial industry pretty much had an important place at 16% of GDP, it is now reported as just under 50%. But Wall Street is allowed to exist because it is a conduit for capital. How could the currently reported figures be right if the middle class has been indisputably decimated? What is so valuable on Wall Street that it now makes up half of our GDP? What are they measuring — inflated salaries and bonuses?
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As long as this bias remains true, the continuing epic financial fraud revealed in 2007-2009 will dominate our legal and living landscape.
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Hunter vs Aurora: Fla 1st DCA Business Records Gets Tougher

Show me any other period in American history where banks lost so many cases.
https://www.vcita.com/v/lendinglies to schedule, leave message or make payments.
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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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see http://caselaw.findlaw.com/fl-district-court-of-appeal/1664754.html

The heat on the banks has been steadily increasing for the last three years and has increased at an increasing rate during the past 18 months. More and more banks are losing in what the bank lawyers call a “Simple, standard foreclosure action.” Show me any other period in American history where banks lost so many cases. There is obviously nothing simple and nothing standard about these foreclosures that have caused ruination of some 25 million people living in around 9 million homes.

If things were simple, we wouldn’t be looking at musical chairs in servicing, plaintiffs and “holders.” If things were standard, the creditor would come forth with clear proof that it paid for this loan. Nobody I know has EVER seen that. I have written about why. Suffice it to say, if there was a real creditor who could come forward and end the argument, they would have done so.

Two years ago the Hunter case was decided. The court was presented with a panoply of the usual smoke and mirrors. The court took on the issue of the business records exception as a guide to the trial judges in the 1st District and to the trial lawyers who defend homeowners in foreclosure. This is a sample of the part of the analysis we do. Here are some quotes and comments from the case:

Aurora alleged in its “Complaint to Foreclose Mortgage and to Enforce Lost Loan Documents” that it owned and held the promissory note and the mortgage, [note that the allegation is never made that Aurora was the owner of the debt or was the lender. Why not? Who is the actual creditor?]
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original owner of the note and mortgage was MortgageIT, and that MortgageIT subsequently assigned both to Aurora. A letter dated January 27, 2007, from Aurora to Mr. Hunter entitled, “Notice of Assignment, Sale, or Transfer of Servicing Rights,” directed him to remit mortgage payments to Aurora beginning February 1, 2007. The “Corporate Assignment of Mortgage” executed on June 11, 2007, and recorded on January 8, 2008, showed MortgageIT as the assignor and Aurora as the assignee. [MortgageIT was a thinly capitalized originator/ broker who could not have made all the loans it originated. Hence the presumption should be that it didn’t loan money to Hunter. Logically it follows that it never owned the debt and should not have had its name on the note or the mortgage. Nor did the source of funds ever convey ownership to MortgageIT. So what value or validity is there in looking at an assignment or endorsement or even delivery from Mortgage IT? And given that behavior (see below) do we not have circumstances in which the paperwork is suspect? Should that be enough to withhold the statutory presumptions attendant to “holding” a note?]
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To establish that it held and had the right to enforce the note as of April 3, 2007, Aurora sought to put in evidence certain computer-generated records: one, a printout entitled “Account Balance Report” dated “1/30/2007,” indicating Mr. Hunter’s loan was sold to Lehman Brothers—of which Aurora is a subsidiary and for which Aurora services loans—and payment in full was received on “12/20/2006;” the second, a “consolidated notes log” printout dated “7/18/2007” indicating the physical note and mortgage were sent—it is not readily clear to whom—via two-day UPS on April 18, 2007. Neither document reflects that it was generated by MortgageIT. -[Interesting that Aurora is identified as a subsidiary of Lehman who was in bankruptcy in October of 2008. Aurora usually represents itself as a stand-alone company which is obviously not true. Equally obvious (see discussion above) is that the reason why Mortgage IT was not identified on the printout is that it had nothing to do with the actual loan money — neither payment of the loan as a lender nor payment for the loan from the homeowner. Mortgage IT, for all intents and purposes, in the real world, was never part of this deal.]

Section 90.803(6) provides one such exception for business records, if the necessary foundation is established:

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinion, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make such memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or as shown by a certification or declaration that complies with paragraph (c) and s. 90.902(11), unless the sources of information or other circumstances show lack of trustworthiness. (e.s.) – [THIS is the point of my article. Under current circumstances both in the Hunter case and in the public domain the court should have considered the fact that the parties were well known to have fabricated, forged and otherwise misrepresented documents, together with outright lying about the existence of underlying transactions that would track the paperwork upon which courts have heaping one presumption after another. My argument is that Aurora should not have been given the benefit of the doubt (i.e. a presumption) but rather should have been required to prove each part of its case. My further argument is that virtually none of the foreclosure cases should allow for presumptions in evidence after the massive and continuing settlements for fraud relating to these residential mortgages. If this doesn’t show lack of trustworthiness, then what would?]

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