Our legal history has many examples of enormous errors committed by the Courts that were obvious to some but justified by many. The result is usually mayhem. The cause is a bias toward some underlying fact that was untrue at the time. Some examples include
  1.  the infamous Dred Scott decision where the Supreme Court ruled that a black man is not a person within the meaning of the constitution and therefore could not sue to protect his rights because he was not a citizen by virtue of the FACT that his ancestors had been brought to America as slaves. The underlying bias was considered axiomatically true: that “negroes” were fundamentally subhuman. It took a civil war that took 500,000 casualties and a constitutional amendment to change the results of that decision. We are still dealing with lingering thoughts about whether the color of one’s skin is in any way related to our status as humans, persons and citizens.
  2. the internment of Japanese Americans during World War II. The Supreme Court upheld that decision on the basis of national security. The underlying bias was considered axiomatically true: that people of Japanese descent would have loyalty to the Empire of Japan and not the United States. People of German descent were not interred, probably because they looked more like other Americans. As the war progressed and the military realized that people of Japanese descent were resources rather than enemies, the government came to realize that acknowledging these people as citizens with civil rights was more important than the perception of a nonexistent threat to national security. Americans of Japanese descent proved invaluable in the war effort against Japan.
  3. the Citizens United decision in which the Supreme Court gave the management of corporations a “Second vote” in the court of public opinion. The underlying bias was considered axiomatically true: that entities created on paper were no less important than the rights of real people as citizens. The additional underlying bias was that corporations are better than people.
  4. the hundreds of thousands of decisions from thousands of courts that relied on the fictitious power of the court to rewrite legislation that Judge(s) didn’t like. A current perfect example was reading common law (inferior, legally speaking) precedent to override express statutory procedures for the exercise and effect of statutory rescission under the Federal Truth in Lending Act. Over many years and many courts at the trial and appellate level the Judges didn’t like TILA rescission so they changed the wording of the statute to mean that common law procedures and principles apply — thus requiring the homeowner to file suit in order to make rescission effective, and requiring the tender of money or property to even have standing to rescind. This was contrary to the express provisions of the TILA rescission statute. Approximately 8 million+ people were displaced from their homes because of those decisions and the property records of thousands of counties have been forever debauched, likely requiring some legislative action to clear title on some 80+ million transactions involving tens of trillions of dollars. The underlying bias was considered axiomatically true: that the legislature could not have meant that individuals have as much power as big corporation and they should not have such power. Then the short Supreme Court decision from a unanimous court in Jesinoski v Countrywide made the correction, effectively overturning hundreds of thousands of incorrect decisions. A court may not interpret a statute that is clear on its face. A court may not MAKE the law.
  5. the millions of foreclosures that have been allowed on the premise that the “holder” of a note should get the same treatment as a “holder in due course.” More than 16 million people have been displaced from their homes as a result of an underlying bias that was and often remains axiomatically true: decisions in favor of homeowners would give them a free house and decisions that allow foreclosure protect legitimate creditors. Both “axioms” are as completely wrong as the decisions about TILA Rescission.
It is the last item that I address in this article. A holder in due course is allowed to both plead and prove only the elements of Article 3 of the UCC. Article 3 of the UCC states that a party who purchases negotiable paper in good faith without knowledge of the maker’s defenses and before the terms are breached is presumed to be entitled to relief upon making their prima facie case — which are the elements already listed here. Even if there were irregularities or even fraud at the time of the origination of the loan or at a later time but before the HDC purchased the paper, the HDC will get judgment for the relief demanded. A “holder” (on the other hand) comes in many flavors under Article 3 but they all have one thing in common: they are not holders in due course.
The fundamental error of the courts has been to treat the “holder” as a “holder in due course” at the time of trial. It is true that the holder may survive a motion to dismiss merely by alleging that it is a holder — but fundamental error is being committed at trial where the holder must prove its underlying prima facie case. It should be noted that the requirement of consideration is repeated in Article 9 where it states that a security instrument must be purchased by a successor not merely transferred. So regardless of whether one is proceeding under Article 3 or Article 9, no foreclosure can be allowed without paying real money to a party who actually owned the mortgage. The Courts universally have ignored these provisions under the bias that it is axiomatically true that the party seeking to enforce the paper is so sophisticated and trustworthy that their mere request for relief should result in the relief demanded. This bias is “supported” by an additional bias: that failure to enforce such documents would undermine the entire economy of the country — a policy decision that is not within the province of the courts. And deeper still the bias is that it is axiomatically true that the paper would not exist without the actual existence of monetary transactions for origination and transfer of the paper. These “axioms” are not true.
As a result, courts have regularly rubber-stamped the extreme equitable remedy of foreclosure in favor of a party who has no financial interest in the alleged paper, nor any risk of loss or actual loss. The foreclosures are part of a scheme to make money at the expense of the actual people who are losing money. If this was not true, there would have been thousands of instances in which the “holder” presented the money trail that supposedly was the foundation for the paper that was executed and delivered, destroyed or lost. They never do. If they did, the volume of litigated foreclosure cases would drop to a drizzle. And these parties fight successfully to avoid not only the burden of proof but even the ability of the homeowner to inquire (discovery) about the “transactions” about which the paper is referring — either at origination or in purported transfers. Backdating assignments and endorsements would be unnecessary. “Robo-signing” would also be unnecessary. And the constant flux of new servicer and new trustees would also be unnecessary. Many of these events consist of illegal acts that are routinely ignored by the courts for reasons of bias rather than judicial interpretation.
A holder in due course proves their prima facie case by
a) proffering a witness with personal knowledge
b) proffering testimony that allows the commercial paper to be admitted as evidence (the note). This evidence need only be to the effect that the witness, or his company, physically has possession of the original note and presents it in court.
c) proffering testimony and records showing that the paper (the note) was purchased for good and valuable consideration by the party seeking to enforce it. This means showing proof of payment for the paper like a wire transfer receipt or a cancelled check.
d) proffering testimony and records showing that the mortgage, which is not a negotiable instrument, was purchased withe the note.
e) proffering testimony and records that the transactions were real and in good faith
f) proffering testimony that the purchaser of the paper had no knowledge of the maker’s defenses
g) proffering testimony that no default existed at the time of purchase of the paper.
Because of bias, the Courts, just as they did with TILA rescission, have mostly committed fundamental error by allowing to alleged “holders” a lesser standard of proof than the party who is legitimately in a superior position of being a holder in due course. It starts with a correct decision denying the homeowner’s motion to dismiss but ends up in fundamental error when the court “forgets” that the enforcing party has a factual case to prove beyond mere possession of an instrument they say is the original note.
The holder, in contrast to the holder in due course, is not entitled to any such presumptions at trial, except that they hold with rights to enforce. They don’t hold with automatic rights to win the case however.
A holder proves its prima facie case by
a) proffering a witness with personal knowledge
b) proffering testimony and records that allow the commercial paper to be admitted as evidence (the note). This evidence need only be to the effect that the witness, or his company, physically has possession of the original note and presents it in court.
c) proffering testimony and evidence as to the chain of custody of the paper the party seeks to enforce.
d) proffering testimony and records together with proof of payment of the original transaction (a requirement generally ignored by the courts). This means proof that the original party in the “chain” relied upon by the party seeking to enforce actually funded the alleged “loan” with funds of its own or for which it is responsible (e.g., a real warehouse credit arrangements where the originator bears the risk of loss).
e) proffering testimony and records showing that the paper (note) was purchased for good and valuable consideration by the creditor on whose behalf the party is seeking to enforce it. This means showing proof of payment for the paper like a wire transfer receipt or a cancelled check.
f) proffering testimony and records showing that the mortgage was also purchased by the creditor for good and valuable consideration. This means showing proof of payment for the paper like a wire transfer receipt or a cancelled check.
g) proffering testimony and records that the transactions was real and in good faith
h) proffering testimony that no default existed at the time of purchase of the paper. Otherwise, it wouldn’t be commercial paper and the party seeking to enforce would need to allege and prove  its standing and its prima facie case without benefit of the note or mortgage.
It should be added here that the non-judicial foreclosure states essentially make it even easier for an unrelated party to force the sale of property. Those statutory procedures are wrongly applied leaving the burden of proof as to UCC rights to enforce squarely on the homeowner who in most cases is not even a “borrower” in the technical sense. Such states are allowing parties to obtain a forced sale of property in cases where they would not or should not prevail in a judicial foreclosure. The reason is simple: the procedure for realignment of the parties has been ignored. When a homeowner files an action against the “new trustee” (substituted by virtue of the self proclaimed and unverified status of a third party beneficiary under the note and mortgage), the homeowner is somehow seen as the party who must prove that the prima facie case is untrue (giving the holder the rights of a holder in due course); the homeowner is being required to defend a case that was never filed or alleged. Instead of immediately shifting the burden of proof to the only party that says it has the rights and paperwork to justify the forced sale. This is an unconstitutional aberration of the rights of due process. The analogy would be that a defendant accused of murder must prove he did not commit the crime before the State had any burden to accuse the defendant or put on evidence. Realignment of the parties would comply with the constitution without changing the non-judicial statutes. It would require the challenged party to prove it should be allowed to enforce the forced sale of the property. Any other interpretation requires the the homeowner to disprove a case not yet alleged, much less proven in a prima facie case.

Focus for Political Candidates: SHOW ME YOUR KNOWLEDGE About the Mortgage Crisis and the Economic collapse!

see West Coast Workshop Northern California


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


I’ve been receiving emails from many candidates for public office, including one recent email calling for the break-up of the big banks — a theme picked up from Elizabeth Warren. They are right. But Bernie isn’t telling the people why that should happen and he isn’t taking the opportunity to resonate with what tens of millions of people already know about our economy, about Wall Street and about government. The system is rigged and people who run against the banks will win if they get specific and demonstrate their knowledge such that the people who are voting have actual confidence that the candidate knows what he or she is talking about and will actually do something to bring this nightmare to an end, restore the American middle class that is the engine of the US economy, and restore social order.


Dear Bernie,

This message is too vague. You are underestimating the knowledge and intelligence of the American Public. More than 17,000,000 people have been displaced by the process of foreclosure. And there are another 17,000,000 people who will be displaced over the next 5-8 years. In order for that to happen the banks hide the real transactions and have been submitting documents that are fabricated, forged, robo-signed and supported by robo-testimony from people whose only job is to testify — thus insulating the the real players from committing perjury.

Talk about how and why millions of black, Hispanic and under-educated, unsophisticated borrowers were targeted for absurd loan products that ‘reset” to payment levels higher than their household income has ever been. You will cut across all demographic lines from far left to far right and everything in between.

Tens of Millions of people know this. You don’t need to do much teaching. If you want to touch a nerve, talk about how the mortgage process jumped from 4-5 loan products in in the 1970’s to around 450 loan products in the mortgage meltdown period. Talk about how disadvantaged people were targeted for loans because the failure of those loans made the most money for the banks.

Talk about the Miami suit where the city was stuck with brunt of the cost of ZOMBIE HOUSES — phenomenon throughout American cities where hundreds of thousands of homes have bull dozed because the same banks that interfered with a modification, forced the foreclosure then abandoned the property.

Talk about how no prospective borrower could understand the intricate lending process that emerged and that the Federal disclosure laws were inadequate to alert borrowers that they were being lured into loans they could never repay. Talk about how borrowers were lured into “default” with the hope of modifications by the famous “You must be 90 days behind to be considered for modification”, and lured into bankrupting their lives and households by spending every penny they could get their hands on to save their home — all to pay banks who had no interest in their loan and who had no actual authority.

Talk about the great shift (theft) of wealth from the American middle class to the banks who now have the money parked off-shore. Question why the banks supposedly suffered huge losses but are now bigger than ever with reporting earnings that are out-sized compared to any other activity in the our economy —a sure signal that they are cooking the books. Wall Street’s job is to make capital available for business activity. We have had our great recession where GDP for actual goods and services was reduced from 84% of GDP to only 52% of GDP — with the entire balance going to financial services. How could there be a need for more paper (securities) for business activity that declining? Talk about the nearly $1 Quadrillion in the shadow banking market where the illusion of economic activity is kept alive.

And why are the banks going to court relying on paper instruments that talk about transactions that never existed? If the transactions were real, then why don’t they show it? Why do they stonewall easy questions like “who is my creditor?” Why are they winning? Why are judges saying that they don’t care whether the borrower owes money to the party suing him; all that matters, say the judges, is that the borrower stopped paying. Really? If I mistakenly pay you $100 per month for a debt that doesn’t exist TO YOU, under what theory of law, morality or ethics can I be sued for withholding payment when I realize my mistake?

The all inclusive message should be that all the players should be forced to the table and all of them must share in the losses and risks that arose with the tactics employed by banks. Nearly all requests for workouts and modifications are being rejected by banks who have no authority to reject them. But the banks stand to gain billions, perhaps trillions of dollars by forcing homeowners into foreclosure because THEY, not the investors, get the proceeds of the sale through “recovery” of “servicer advances” that (a) completely eviscerate the false claim of default on the loan (the creditor was paid) (b) were never “advanced” by any authorized “servicer” (The money for servicer advances came from the investors’ money in a slush fund accessed by the servicer).

Talk about how virtually all borrowers who have applied for modifications have had their paperwork “lost” or “never received” or “incomplete” and how when the paperwork is sent again, it is now too stale and the process must be started over again — all the while the bank is forcing the homeowner deeper and deeper into a default that does not and never did exist. Talk about the tens of thousands of modifications that were approved and then ignored in order to force the foreclosure of a home that the bank would then abandon..


Northern California Workshop, CLE Credits

There is a seminar worth attending for both lawyers and homeowners in Northern California. The presenters are Dan Edstrom, senior forensic analyst for LivingLies, together with Jim Macklin and Attorney Charles Marshall, all veterans of the foreclosure war. I might make an appearance via SKYPE. They will cover as much as possible for a one day seminar.

To register click on this link: Northern California Workshop

SERVICER ADVANCES: The Big Modification—> Foreclosure Scam by Wells Fargo and Others — “Better be 90 days behind”

See West Coast Workshop Northern California

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

This is not a legal opinion on any specific case. Get a lawyer.



The Big Question:

How can there be a declaration of default

when the creditor is showing no default and no loss on its books?

I have been through the ringer myself, as the homeowner in the article linked above said about himself. We have a steady policy of the banks luring homeowners into default or luring them into deeper defaults. The reason is clear. They want the foreclosure — not the house and definitely not the money owed. As one BOA manager said “we are in the foreclosure business not the modification business.” The facts are always the same: the homeowner is faced with two choices based upon the information that comes from the only source he or she knows about — the party claiming to own the loan or claiming the authority to service the loan. In nearly all cases neither representation is true.

The two choices are to find another way to get help from friends and relatives (i.e., forget about modification) or go into a default. The message is perfectly clear that the “customer representative” is inviting them to go into default. But they have a script that carefully avoids the direct words of “I am telling you to go into default.” And so nearly all judges say that this is not illegal legal advice and not fraudulent misrepresentation, even though the homeowner is told that there is nobody else they can talk to about their loan.

Millions of homeowners were looking for modification rather than a free house — mostly on loans that had reset to unaffordable monthly payments that were not properly disclosed at closing and which should never have been approved by any legitimate underwriting process. In fact, such loans were never approved prior to the era of the illusion of securitization in the secondary markets where mortgage loans are bought and sold. Industry practices, rules and regulations preventing banks from approving loans in which it was obvious that some or all of the terms would be breached based upon current information. So if a borrower is approved for a mortgage with a teaser payment of $500 per month in a household that grosses $50,000 per year, it is obvious what will happen when the payment resets to $5,000 per month ($60,000 per year) — $10,000 more than their entire income.

The ONLY reason why such loans were approved is that the banks were not putting the bank at risk in such loans and were making money hand over fist in the “secondary” markets that were completely under the control of the same banks. They sold that loan as though the $5,000 per month would be paid — and even had ratings and insurance indicating that the loan was “low risk” when the bank knew for sure that default was imminent due to the reset  of the amount of payments. And in fact, payments were made to the investor creditors just as expected —> but paid by the investment bank as “Servicer advances.”

But were they really paying the certificate holders in REMIC Trusts? Yes, but they were paying investors out of their own money which was hijacked into a commingled slush fund. But since they were called “servicer advances” that are now being bundled as derivatives and sold to the same investors as securitized debt, it is the SERVICER who has a claim for the advanced money even though it wasn’t their money that funded the “advances” which were really refunds out of the money paid by the investors themselves.

The banks created this scheme so that investors would remain ignorant that anything was wrong with the portfolio despite mountains of delinquencies that were DECLARED BY THE SERVICER to be “defaults.” And so the investors would buy more “mortgage backed” securities they were neither mortgage backed nor securities because the Trust never saw a penny of the offering of mortgage backed bonds and never operated nor purchased nor received ownership of the loans.

Those “advances” or refunds or whatever you want to call them can be “recovered” (I would say stolen) by the investment banks masquerading as the Master Servicer of a REMIC Trust that existed only on paper and not in the real world. But they can only “recover” those advances (that they are quickly selling to investors through new securitization schemes) if the property goes into foreclosure. If the property is foreclosed then the servicer no longer needs to make advances although in many cases it continues to do so in order to keep the investors in the dark. But more importantly it is ONLY when the property is sold that the “Master Servicer” can “recover” those servicer advances.

It’s complicated. But if you stop for a moment and put pencil to paper suddenly the reason for those long delays in prosecuting foreclosures becomes crystal clear. The investment bank is using the investor money to make “advances” to the investor to make good on the expectations of the investor in receiving income from their “investment.” Since the investment bank is not actually making the advances, the “receivable” due to the investment bank under this convoluted scheme increases with each passing month (without any corresponding liability or expense). So the investment bank that controls the slush fund where investor money is kept, makes payments to the investor for the amounts due regardless of whether the borrowers are paying.

In the example above, they want to keep that time running as long as possible. By making advances of $5,000 per month, that is $60,000 per year and over an 8 year period, for example, the receivable is now $480,000 without the bank having to spend one dime and in fact, actually collecting fees during the entire time at a premium rate for those loans that are distressed. So they have a $480,000 asset waiting. But there is a catch. They can only get the $480,000 if the property is foreclosed and the property is sold. It is only out of the sale proceeds that the bank as “master Servicer” can lay claim for its $480,000. Of course in the end the investors get screwed because that $480,000 was their money and THEY should have received it. But they didn’t and they don’t. Just read the prospectuses on the bundling of “servicer advances.”

So Wells Fargo and other banks adopted strategies that lure homeowners into default and get them believing and hoping they will get a modification when in fact they don’t give the modifications at all. In truth they are neither authorized to collect the money nor enforce the obligation because their so-called authority comes from the PSA for a REMIC Trust that was never used, never funded, never in operation. And they do it in a variety of ways—

Here are some excerpts from the article in the above link from about a year ago: Article

Wells Fargo put them “through the ringer”. “We were happy living in a rural-suburban area. Time went by quickly. One thing that we always did was pay our bills on time. We took pride in our credit score, which were 760 each. We were so proud when we needed a new car we could just “walk” off the lot with it. [I’m] not sure what happened, where everything went wrong. I actually believe it was President Obama telling Americans to apply for a Home Affordable Modification Program (HAMP) loan. When job loss occurred in our family, I was aware that we would qualify for that loan and I called Wells Fargo to inquire. They put us through the ringer. That is what started our tumble down the credit hole. Wells Fargo approved a forbearance agreement, while we submitted a HAMP application in 2009.” – See more at:

[HAMP had been introduced by the Obama administration as a tool to help homeowners keep their homes. It turned out that the yellow brick road led many into foreclosure disasters – a prolonged disaster that kept homeowners’ hope alive while chipping away their savings, their equity, and ruining their credit scores. Americans were watching in disbelief while the servicers and banks didn’t comply with the HAMP requirements, continued with dual tracking (processing modifications and foreclosing at the same time), pushing homeowners towards in-house modifications even when they qualified for HAMP, and many other irregularities.] – See more at:

This is when the games began,” continued J.S. “The forbearance ruined my credit score. Every fax I sent to Wells Fargo has not been received – that’s what their representatives claimed. Week after week, always [with] a two-week lag. Always something missing. Then I started my Internet research on “lost paper work” and I found Living Lies website, which led to Foreclosure Hamlet, and now Facebook. My search for answers brought many wonderful people in my life together with the answers and they helped me through the darkest moments of my life. [Editor’s note: Ruining the credit score of the homeowner is key to insuring a foreclosure. If their credit score remained high they would be able to refinance and the investment bank as Master Servicer would have no claim for “servicer advances.”]

“In 2009 I was informed by a Wells Fargo representative that I may not be approved because someone moved my application out of the review folder from her computer! Their incompetence was limitless. Eventually I was approved for a modification, but it was more than my original mortgage. However, I wanted to save my house at all costs. At this time I had a good job. [But] after the BP oil spill my salary was cut in half and I re-applied for the HAMP loan in 2010. – [Editor’s Note: I have personal knowledge and tape recordings of Wells Fargo employees speaking without realizing they were being recorded by their own system. In those recordings they acknowledged that images and data from one borrower was mixed in with another. They agree that they shouldn’t admit that to the borrower. Then Wells Fargo blames the borrower for not having sent the required documentation which they have had all along or destroyed. Evidence in a case involving BOA and other banks shows that on a periodic basis the banks simply destroy all applications and submissions by borrowers.]

“I was told by Wells Fargo that we had to be 90 days late before they would consider my HAMP loan application. At that time, I still had a great credit score, and now they were telling me to actually STOP PAYING MY MORTGAGE. I think that I literally freaked out then. I didn’t want to lose my home.” [This is the big one. And up till now it has been foolproof. Most homeowners are unaware of the news or history of other borrowers. So when they are told about the “90 day” requirement, they think they don’t qualify for relief unless they withhold payments for 90 days. But that isn’t true for two reasons — the bank is only telling them about the policy of Wells Fargo, not the investors (sometimes Fannie or Freddie).  The bank is creating the impression that they are a reliable source of information when in fact they are lying to the borrower in order to get them into default, foreclosure, sell the property and then claim “Servicer advances.”]

One of the biggest traps by the servicers during the HAMP modification process was pushing homeowners into default without telling them that they would be reported by those same servicers to the credit agencies, thus ruining their credit.] – See more at:

“After reluctantly not paying my mortgage for 90 days, I was able to apply for a HAMP loan. Again every fax I sent was lost. I didn’t know what to do anymore. My frustration reached its limits and I realized that next time I will FedEx my documents, so they can’t lose it, since there will be a tracking number as a proof of delivery. The new HAMP application letter stated that paper work was due on or before Feb. 14, 2011. I gathered everything and sent on Feb. 3, 2011. It was received on Feb. 4, 2011, and signed via FedEx tracking. On Feb. 16, 2014, I received a letter from Wells Fargo that my documents were not received. WHAT? I called them right away. They say they never received my package. After I cried over the phone, their representative sounded very upset and finally told me, ‘We have some of your documents, but things are missing.’ – See more at:

“I called FedEx and spoke to the supervisor of the delivery person and she tried to call Wells Fargo but I was told no one would answer the phone and she never contacted me again. I had no choice but to wait for foreclosure proceedings. They obviously wanted to give me the run around. I was served Dec. 27, 2011. I was ready. – See more at:

OCC Finds 6 Banks Have Not Complied With Consent Orders

see OCC NR 2015-6 Servicers Actions Restricted and 3 Services Released 2015 06 17

The OCC also has determined that EverBank; HSBC Bank USA, N.A.; JPMorgan Chase Bank, N.A.; Santander Bank, National Association; U.S. Bank National Association; and Wells Fargo Bank, N.A., have not met all of the requirements of the consent orders. As a result, the amended orders issued today to these banks restrict certain business activities that they conduct. The restrictions include limitations on:

  • acquisition of residential mortgage servicing or residential mortgage servicing rights (does not apply to servicing associated with new originations or refinancings by the banks or contracts for new originations by the banks);
  •   new contracts for the bank to perform residential mortgage servicing for other parties;
  •   outsourcing or sub-servicing of new residential mortgage servicing activities to otherparties;
  •   off-shoring new residential mortgage servicing activities; and
  •   new appointments of senior officers responsible for residential mortgage servicing orresidential mortgage servicing risk management and compliance.


Related Links

FDCPA Claims May Extend Beyond 2 Year Statute of Limitations

And another analysis from one of my trusted “anonymous” contributors who really know what is going on:

FDCPA also has a 2 year SOL for most states, and most judges go back to the supposed transaction from which it stems (The supposed home loan, as to when clock starts ticking). Many homeowners can prove the claims of the Servicers having an interest in the loan is false, therefore the REMIC Trust is false, and therefore there was no 2 year lapse traceable back to a defined transaction, FDCPA claims should not toll either.

So what that means to me is interesting in two scenarios:

A.) Every letter you receive to Modify a loan from a “Servicer” (i.e, become indebted further to someone you never owed in the first place), is really a disguised new loan, because the original debt never existed with them. Therefore as a new loan, it falls back under TILA and REG Z, and they have violated it all over in a “mod”, starting the TILA clock ticking again, as well as violating the FDCPA all over again.

B.) If it is a straight collection notice, this, coupled with your monthly billing statement, violates a few things:

– The Servicer has already violated TILA’s payment processing requirements: Payment Processing—12 CFR 1026.36(c)(1)
– The Servicer has already violated Periodic Statements for Residential Mortgage Loans—12 CFR 1026.41
– Each new collection notice, since it is in fact not traceable back to a real world loan transaction, and is being sent by someone with no interest to collect from you, is in fact a separate and distinct “roll of the dice” or “fishing expedition” to extort money from a stranger fraudulently, with the threat of a debt that was never owed them. This seems to me that every notice is unique (you never know which one the person it is sent to will cave on and send the fraudster money for, they all are usually for ever increasing $ amounts, therefore the amounts they are trying to collect is unique) and much like a lottery ticket, the bogus bill collector is playing a numbers game to see which ticket might “hit”. In this sense, I don’t think you can claim the FDCPA ever tolls, which is important given the wide latitude of claims the FDCPA allows for.

Also important, look at which claims allow for Joint and Several liability. If you are just suing Chase that is one thing; But you sue Chase as Servicer, the Trustee of the REMIC, LPS as agent, and the Law firm they used to effectuate a scheme, you just quadrupled your claim amount (Not sure which claims allow for this, but you get a good $180K hit, quadruple it, your close to a Million right there)..

Modification Minefields as Foreclosures Resume Upward Volume

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

Listen to Neil Garfield Show on Thursday February 26, 2015 at 6pm EDT., and each Thursday



New Jersey now has an upsurge of Foreclosure activity. It is on track to become first in the nation in the number of foreclosures. What is clear is that the level of foreclosure activity is being carefully managed to avoid attention in the media. Right now, foreclosure articles and the infamous acts of the banks in pursuing foreclosures is staying off Page 1 and usually not  anywhere in newspapers and other media outlets online and and in distributed media. The pattern is obvious. After one area becomes saturated with foreclosures, the banks switch off the flow and then move to another geographical area. This effectively manages the news. And it keeps foreclosures from becoming a hot political issue despite the fact that millions of Americans are being displaced by illegal foreclosures based upon invalid mortgage documents and the complete absence of any real creditor in the mix.

As foreclosures rise, the number of attempts at modification also rise. This is a game used by “servicers” to assure what appears to be an inescapable default because their marching orders are to get the foreclosure sales, not to resolve the issue. The investment banks need foreclosures; they don’t need the money and they don’t need the house —- as the hundreds of thousands of zombie foreclosures attest where the bank forecloses and abandons property where the borrower could and would have continued paying.

The problem with modifications is the same as the problem with foreclosures. It constitutes another layer of mortgage fraud perpetrated by the Wall Street banks, who are now facing increasingly successful challenges to their attempts to complete the cycle of fraud with a foreclosure.

The “servicer” whom nearly everyone takes for granted as having some authority to move forward is in actuality just as much a stranger to the transaction as the alleged Trust or “Holder”. The so-called servicer alleged authority depends upon powers conferred on it by the Pooling and Servicing Agreement of an unfunded Trust that never completed its mission to originate or acquire loans. If the REMIC trust doesn’t own the loans, the servicer claiming authority from the PSA is claiming vapor. If the Trust doesn’t own the loan then the PSA is irrelevant and the powers conferred in the PSA are pure vapor.

This brings us full circle to where we were in 2007-2008 when it was the banks themselves that claimed that there were no trusts and that there was no securitization. They were, as it turns out, telling the truth. The Trusts were drafted but never funded, never used as conduits and never engaged in ANY transaction in which the Trust had funded the origination or acquisition of loans. So anyone claiming authority from the trust was claiming authority from a fictional character — like Donald Duck.

Complicating matters further is the issue of who owns the loan when there is a claim by Freddie or Fannie. Both of them say they “have” the mortgage online when they neither “have it” nor “own it.” Fannie and Freddie were one of two things in this mess: (1) guarantors, which means they have no interest until after a creditor liquidates the property and claims an actual money loss and Fannie and Freddie actually pays off the loss or (2) Master trustee (and probably guarantor as well) for a REMIC Trust that probably has no greater value than the unfunded REMIC Trusts that are unused conduits.

Further complicating the issue with the former Government Sponsored Entities (Fannie and Freddie) is the fact that many banks have been forced to buy back or pay damages for violating underwriting standards and other types of fraud.

So how do you get or sign a modification with a servicer that has no authority and represents a Trust that has no interest in the loan? The answer is that there is no legal way to do it — BUT there is a way that would allow a legal fiction to be created if a Court issued an order approving the modification and declaring the rights of the parties. The order would say that XYZ is the servicer and ABC is the creditor or owner of the loan and that the homeowner is the borrower and that the modification agreement is approved. If proper notice (including publication) is given it would have the same effect as a foreclosure and would eliminate all questions of title. Without that, you will have continuing title problems. You should also request that the “Servicer” or “Trustee” arrange for a “Guarantee of Title” from a title company.

For the tricks and craziness of what is happening in modifications and the issues presented in New Jersey and other states click the link above.


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