What good are the reports and analyses?

If you have a medical problem do you want just one doctor to look at your lab results or a team of doctors each doing their own analysis? The same question applies if you are heading into litigation. The problem for homeowners is that having a deep bench of professionals costs money. That is the way our system works, for better or worse.

Let us help you plan for trial and draft your foreclosure defense strategy, discovery requests and defense narrative: 202-838-6345. Ask for a Consult.

I provide advice and consent to many people and lawyers so they can create a compelling defense narrative to foreclosures. If you have a foreclosure or a deal you want skimmed for red flags order the Consult and fill out the REGISTRATION FORM. A few hundred dollars well spent is worth a lifetime of financial ruin.

PLEASE FILL OUT AND SUBMIT OUR FREE REGISTRATION FORM WITHOUT ANY OBLIGATION. OUR PRIVACY POLICY IS THAT WE DON’T USE THE FORM EXCEPT TO SPEAK WITH YOU OR PERFORM WORK FOR YOU. THE INFORMATION ON THE FORMS ARE NOT SOLD NOR LICENSED IN ANY MANNER, SHAPE OR FORM. NO EXCEPTIONS.

Get a Consult and TERA (Title & Encumbrances Analysis and & Report) 202-838-6345. The TEAR replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).

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

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Today I was copied on an email sent by a client who was frustrated by having to pay his attorney to do his own analysis of the status of the loan and litigation in addition to reports of Bill Paatalo and myself. The client regarded the work done by the lawyer as the same as reports done by forensic analysts, and the same as the work that I do at www.lendinglies.com. Here is my answer:

Although it may seem the same, it isn’t. Bill and I are even different. He does a factual report produced by research and investigation. As a lawyer and expert witness on the securitization of debt, etc, my reports are different from Bill’s.

The lawyer is doing something else entirely — making strategic and tactical decisions that will result in a homeowner winning the case — not just being “right.” The lawyer not only uses his unique knowledge of local laws, rules and procedures, he/she will only pursue those issues, claims and defenses that have the highest likelihood for traction and the lawyer makes the difficult decision of selecting 2-3 issues out of dozens because he knows the local bar and can make the best judgment on which tip to put at the end of the spear.

The “bench” for the financial industry is very deep involving as many as 20 people, most of whom are not seen by you because they want it to appear as a “standard foreclosure.” You need to understand that because of finances you are limiting your bench to one person (a lawyer or consultant) when what you need is a full bench.
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For your lawyer to use any specific strategy or tactic he/she needs to believe in it. If not, it will not play well in the courtroom even on motions. If the lawyer wants to do further analysis to bring himself/herself up to that level of confidence then that is what it costs. If the lawyer is satisfied to direct the work of Bill Paatalo or myself to provide “second sight”, then that is what should happen.
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The Justice system is based upon rationing out decision making where there is a dispute. It boils down to a vetting process based upon available resources. In other words it is about money. Lawyers, forensic analysts, and consultants, have spent years, even decades accumulating knowledge, skill and intuition. They have a right to get paid for that when it is applied to your benefit.
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In an event like the past and current tidal wave of foreclosures based upon questionable and fraudulent business practices sometimes law enforcement gets involved; but the real benefit of winning and stopping the foreclosure can only be achieved through direct action by the homeowner and not some agency. That takes money from people who were wiped out by Wall Street banks who are propped up by an executive branch and legislative branch that not only doesn’t help homeowners but actually pass and enforce laws directly opposite to the legitimate interests of homeowners.
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The system, particularly nonjudicial foreclosure, is rigged to favor devious parties who use fraud as their business plan. They have very deep pockets. For a homeowner who wants to win a case, the homeowner must be willing to commit resources required by the effort. Each professional has their own contribution to make, if you let them. Even if they are performing what appears to be identical work you will get a better decision based upon better interpretation.

Falling Into the Traps Set By the Banks

For the past 15 years there has been a huge chasm between what a document says and what actually occurred. In foreclosure settings, the conscious decision has been made to ignore the Truth and proceed on the falsehoods promulgated by the banks. This arises from the “national security” fear that if the banks are not allowed to continue their fraudulent behavior, the entire financial system will collapse taking the entire society down with it. This myth is promulgated by the Banks, who supply the government with people to regulate the banks. Even as a theory it is untested, and unsupported by any real evidence. Unfortunately for Americans, too many people believe it.

Listen to the last Last Neil Garfield Show at http://tobtr.com/s/9673161

Get a consult! 202-838-6345

https://www.vcita.com/v/lendinglies to schedule CONSULT, leave message or make payments.
 
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
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We are constantly analyzing the documentation that is produced by the banks or their surrogates. But we are failing our clients when we say that something actually occurred just because a piece of paper says it occurred.
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“Prepared by” is just a hearsay statement that the document was prepared by the entity identified after those words. It does not mean that the document was in fact prepared by that entity — usually a title or closing agent — nor does it necessarily mean that the identified entity actually even handled the document.
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Too often, and virtually the rule, is that facially valid documents are telling the truth about what occurred. In the present context of “lending” the facially valid documents relied upon by foreclosing parties are usually fabricated, forged, robosigned and prepared by entities who create and maintain the records upon which the foreclosure proceeds — separate and apart from the alleged “Trust” or other “owner” and separate and apart from the party identified as the servicer but who actually do nothing except lend its name for use in a foreclosure.
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We don’t want to be saying (and therefore admitting) that the title or closing agent DID prepare the document — but rather admit the obvious: that the document says that they prepared it. It is the same with other documents.
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We don’t want to say that an assignment was made; in our reports we say that the document labeled “assignment” says there was an assignment. It is easy to fall into the trap of assuming that basic references are truthful when in fact they are not. We do a disservice to our customers if we submit a report that plays right into the hands of the banks. It also misdirects the lawyer or pro se litigant into failing to object to the references within a facially valid document because then those defenses are probably waived.
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But looking at the “prepared by” and “return to” instructions on an instrument may give you another lead to a witness who is unwilling to lie about the the alleged transaction.
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The closing agent or escrow agent may be willing to state that they received money, as they were instructed, and that they dispersed the money as instructed. They might be willing to admit that they did not prepare the documents but rather received them from a source that also might not have prepared them. And they might be willing to admit that they have no knowledge of from whence the money came for the alleged “closing.” Thus their testimony could be that they can provide no foundation to the assertion that a loan was made by the named mortgagee or beneficiary.
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A facially valid document, particularly if it is recorded in the public records, normally carries with it a presumption of truthfulness unless there is evidence to suggest that the document was fabricated, forged, robosigned or that there are other indications that the document is just a self-serving fabrication. But the admission of such a document into evidence should be the start of the argument not the end.
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Once the document is admitted into evidence, hopefully over the timely objection of foreclosure defense counsel (lack of foundation), the statements within the documents are hearsay unless the hearsay objection is waived. Those statements, without foundation testimony cannot be used as foundation for other testimony about the authority of the “servicer”, the “trustee,” or anyone else posing as owner or servicer of the DEBT.
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A simplified example: A warranty deed executed by John Doe, executed with the formalities required by statute is a facially valid instrument. The recipient Jane Roe received title ownership of the property according to the provisions stated on the face of the deed. If the deed is then recorded in the County records, it establishes notice to all the world that Jane Roe is the owner of the property described in the deed.
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But if John Doe never owned the property then the deed conveys nothing. It is a wild deed. It can be ignored by the world and everyone else. It can be removed from chain of title generally by a quiet title action (lawsuit in local jurisdiction) or simply an affidavit saying that John Doe mistakenly executed the deed describing the wrong property or whatever situation arose to cause the recording of a false deed in the chain of title to someone else’s property.
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But if Jane Roe insists that she does own the property described in the false deed and acts on that assertion, that is where things get messy. If Jane Roe files a quiet title or other lawsuit and presents the facially valid warranty deed from John Doe, the deed will be admitted into evidence, probably over the objections of the real property owner. It is admitted to prove only that the document exists in the county records and NOT to prove that the truthfulness of representations on the deed (“Grantor is full seized and owner of the property”), which is still the burden of proof for Jane Roe. There is also generally a representation as to the payment of good and valuable consideration, which we will presume Jane Roe never paid and obviously can’t prove. And THAT is where Jane Roe’s case should fail.
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The mistake made by pro se litigants and lawyers defending foreclosures is that they don’t go back to these basics. The original note and mortgage may indeed have been signed by the present homeowner. But the representations concerning payment of good and valuable consideration by the party named as mortgagee (or beneficiary under the deed of trust) are untrue as to most of the original “transactions” and therefore all succeeding documentation purporting to “sell’ grant bargain and deed” the note and mortgage to another party. Even where the originator does fund the initial “loan” (a small minority of originated documentation) the assignments are mysteriously missing any actual payment and therefore there can be no proof of payment of good and valuable consideration.
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In plain language, the fact that the homeowner owes SOMEBODY doesn’t mean that they owe just ANYBODY.
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For the past 15 years there has been a huge chasm between what a document says and what actually occurred. In foreclosure settings, the conscious decision has been made to ignore the Truth and proceed on the falsehoods promulgated by the banks. This arises from the “national security” fear that if the banks are not allowed to continue their fraudulent behavior, the entire financial system will collapse taking the entire society down with it. This myth is promulgated by the Banks, who supply the government with people to regulate the banks. Even as a theory it is untested, and unsupported by any real evidence.
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It is this policy of presumptive national security that has sacrificed the lives of 20 million people thus far.
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Questionable Documents: Investigation and Discovery Required
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NOTE: Analytical reports on title or securitization are not evidence without foundation testimony and/or affidavit, as the court permits. Our analytic summaries represent our observation and opinion as to issues regarding Chain of Title, Authenticity, Forgery, Fabrication or Robo-signing. Actions to be considered include sending a Qualified Written Request (QWR) under RESPA, Debt Validation Letter (DVL) under FDCPA, letters/complaints to State Attorney General and Consumer Financial Protections Board, and legal claims and defenses as to Legal Standing.

Most Mortgage Closings Were Sham Closings

“Powers of attorney are fraught with problems. Title attorneys and title insurance companies are reluctant to accept them, and will insist on making sure that the proper form and correct language is included in the document. You should not use the forms that can be obtained free of charge (or even for a fee) on the internet. If you need to provide a power of attorney for your real estate transaction, get the proper form from the settlement attorney that will be handling the closing.” Benny L Kass, realtytimes.com see link below

If you are seeking legal representation or other services call our South Florida customer service number at 954-495-9867 and for the West coast the number remains 520-405-1688. In Northern Florida and the Panhandle call 850-765-1236. Customer service for the livinglies store with workbooks, services and analysis remains the same at 520-405-1688. The people who answer the phone are NOT attorneys and NOT permitted to provide any legal advice, but they can guide you toward some of our products and services. Get advice from attorneys licensed in the jurisdiction in which your property is located. We do provide litigation support — but only for licensed attorneys.
See LivingLies Store: Reports and Analysis

Editor’s Analysis: Consider this. You walk in off the street and apply for a loan. The Bank confirms the loan and a closing date and place is set up — usually at a closing agent or title agent (who is also a closing agent). But your friend shows up and wants the loan and says he is willing to sign the papers. What do you think the Bank would do? What do you think the closing agent would do? It’s obvious. The closing is cancelled and the loan never happens.

But suppose your friend has a friend in the bank and that person is in charge of preparing the papers for closing. The friendly bank person switches out the name of the borrower from you to your friend. The closing agent collects the money from the bank and gives your friend the loan. When the loan goes into default the bank finds that it loaned the money to the wrong person. Having no rights against you they are limited to pursuing your friend who by now is long gone. Unless they prove you had something to do with it, they have nothing on you.

Next, assume your friend goes to the closing for you and he has a power of attorney from you, saying you are out of town or whatever excuse he can think of. The closing agent will most likely not accept the power of attorney unless told to do so by the Bank. The Bank will most likely refuse because powers of attorney are subject to cancellation by death or disability.

If your friend adds that he is your successor because you died and he is the personal representative of your estate, there are even more problems and fewer chances that the bank will accept the successor argument or the power of attorney. The assumption would be that something screwy is going on and the Bank wants no part of it. Suppose the power of attorney is a forgery? What if you are not really dead?

But in the modern era of foreclosures the very same succession and powers of attorney are accepted without question FROM the same banks who would turn it down if it were offered TO them. THIS is why you need forensic auditors to give you a report on where the weaknesses are in the chain of title and the money trail. The best way to determine if an assignment is actually valid is to look at the consideration. Who paid how much to whom? And that is the heart of aggressive discovery. The Banks don’t want to get into that because they would be shown to be strangers to the transaction and that the assignment or transfer never actually occurred.

When you went to your loan closing or your client went to their loan closing, there was an assumption that was not true in most cases —- that the payee on the note and the mortgagee on the mortgage was giving the borrower a loan of money. But they didn’t. The money came from investors rather directly through the investment bank that acted as a depository for the funds until they withdrawn for their own fees or to fund mortgages like yours. The party that SHOULD have been on the documents was the actual lender — i.e., the investor or a group of investors in a REMIC trust if indeed the trust was ever funded, which we are finding is increasingly unlikely.

Now the Banks are saying that just because they had their own reasons not to write the right parties and terms on the loan in violation of their duties to the investors, that the Bank is entitled to foreclose! AND if you look closely you see all the succession language and powers of attorney, endorsements, and mergers, all of which lack consideration for any transfer of any loan because the loan was funded from the beginning by the investors who were forced out of the room.

In Court when the judge enters a final judgment of foreclosure or allows the sale to proceed the Judge is unintentionally stripping the investors of their security rights and stripping the investors of any claim for payment against the borrower — which was the ONLY reason they advanced money in the first place. This in turn gives the borrower nobody to talk to to find out the real balance of the account receivable, or to address issues of modification.

If the Judiciary wants to see this bulge of foreclosure cases go away, then enforce the mortgages the same you did when there was no securitization. They will vanish in a flash.

 

Powers of Attorney: A Potential For Fraud
http://realtytimes.com/rtpages/20130828-powersofattorney.htm

 

Using UDCPA Fair Debt Collection Acts to get Money, Information and Fees

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COMBO Title and Securitization Search, Report, Documents, Analysis & Commentary CLICK HERE TO GET COMBO TITLE AND SECURITIZATION REPORT

RIPE AREA FOR STEADY INCOME FOR LAWYERS REPRESENTING HOMEOWNERS

Editor’s Comment: One small step for a man, one giant leap for mankind. You have both a private right of action against the debt collector and the right to apply to the FTC to set up administrative hearings, where these cases should probably be heard by experienced hearing officers who know what they are looking at.

The practice of playing the numbers on debt collection has been around for a long time. Whether the debt is real or not, there is a statute of limitations, bankruptcies and other obstacles to collection. A lot of times the debt is now owed at all, but byb pestering customers, the collection agency gets some money out of them, which they keep because they have already bought the portfolio at pennies or less on the dollar.

This is where servicers and other intermediaries in the fake securitization chain are going to get into hot water. The debt was created when the investor loaned the borrower the money. The intermediaries are by definition debt collectors under the UDCPA and they are, and have been banged for fines many times on individual cases.

This is an instance where the Obama administration is attacking the practice head-on and taking away their toys. So when the pretender lender comes knocking, it isn’t just a RESPA 6 (Qualified Written Request) that you send out, it is a UDCPA letter you send demanding to know both the identity and contact information for the creditor. As you can see from this article, failure to provide you with that information  plus the balance due and how it was computed, is a violation of that Federal Statute.

It might also be a shortcut way of identifying the pretender not as holder of the note but as agent for an undisclosed principal seeking to collect on a note that was defective in the first place because they did not identify the correct creditor (in violation of TILA) and it did not provide you with a proper accounting showing exactly what this “creditor” received that would reduce your loan balance.

The MAIN point here is that the servicer might well be the one sending you the notice of delinquency swhen they have performed zero due diligence as to the creditor’s accounting. Where the servicer itself or some other party is keeping the account current, as is often the case, the loan is neither delinquent nor susceptible to being declared in default — but they do it anyway.

Now that the FTC has declared war on debt collectors who perform illegally, and banged them with this fine, we can invoke the same administrative procedures and grievances with the FTC as to the collection efforts on mortgages where the “collector” is not the creditor and where the money demanded is not actually shown as due.

There is a presumption that if you didn’t make the payment as set forth in the note, then you must be delinquent and you must be declared (at some point) in default. But that is not true in most cases. There can only be a delinquency or default under the mortgage loan if the borrower has failed to make a payment or cure a payment that is actually due. If the payment has been made already, then no such payment is due, regardless of whether it came from the borrower or not.

This is why you need to know the four legs of the stool in order to object, sue, defend, and present genuine issues of fact before a trial court that will have no choice but to allow you to proceed to discovery. Discovery is where these cases settle because the pretenders know they didn’t fund the loan, they didn’t pay for the loan and the creditor has been paid in whole or in part, with a lower or zero balance remaining.

Just for reminders, the four legs of the stool are:

  1. The loan closing papers with the investors under which he agrees to advance funds into a pool in exchange for a note or bond from a REMIC (which is never properly constituted). Here the investors expects that the money advanced will be used for funding mortgages conforming with the standards set forth in the prospectus and pooling and servicing agreement. Note that there is no nexus or connection between the investor and the borrower because the borrower usually does not even exist at that point in time. If a nexus ever arises, it is when the loan is transferred into the pool, something which we all now know was never done until the loan went into litigation or foreclosure — obviously in violation of the cut-off date required by the IRS REMIC statute, and the concurrent cut-off date in the PSA. But more importantly is the money angle — the investors didn’t advance money for loans that were delinquent or in default. They invested their money for good quality performing loans. Thus there is no way that the loans could be transferred into the pools if they were already declared problematic, delinquent, or non-performing. The failure to provide a nexus between borrower and lender (investor) is fatal to the enforcement of the mortgage lien. The creditor has no interest in the loan and doesn’t want one. Any claim from third parties who also have no nexus with the borrower would be on causes of action that are separate or apart from the mortgage lien. (SEE COMBO TITLE AND SECURITIZATION REPORT ABOVE)
  2. The loan closing papers with the borrower(s), which are subject to roughly the same analysis with identical result. There is no nexus between the borrower and the investor because neither one knows the other, despite requirements in the TILA and RESPA laws that require disclosure of parties and their compensation. (SEE FORENSIC ANALYSIS TILA+ REPORT on Livinglies-store.com) The note does not describe the actual monetary transaction between the investor lender and the borrower. Instead it inserts a straw-man as “lender” and a straw-man as “beneficiary”. This usually takes the form of a new animal in mortgage lending called an “originator” who is a paid fee service provider whose sole duty is to pretend to be the lender, even though they never funded the loan, never bought the loan and never had any interest in the debt, the note or the mortgage. This is deemed by many in the title industry as a corrupted document that breaks the chain of title if any action was taken on such a loan in foreclosure. 
  3. The actual money trail which varies from both the requirements set forth in the paperwork with the investor lender and the paperwork with the homeowner borrower. A full accounting would show that the parties in the middle without any interest in the loan, bought, sold, transferred and used those fabricated, forged documents to initiate foreclosure and eviction proceedings. Under the investor documentation, the pretenders are allowed to use a legal PONZI scheme in which the investors money is used to pay him his interest income, although it is not reported as such. The servicer also has the option of taking money from other revenue and pools and paying certain investors in complete  violation of the explicit requirements of any standard promissory note from a borrower requiring that payments be credited to the account of the borrower. Instead, they make the payment and do not credit the borrower or they receive the money and they pay neither the investors nor the give credit to the borrowers. (see Loan Level Accounting REPORT on Livinglies-store.com). The servicers and intermediaries and attempting, with some success to take over the position of the investor without an assignment from the investor, and enforce a mortgage to which they are not a party.
  4. The Fourth legal of the stool arises from the false representations made in court or foreclosure proceedings. These representations made by people who purport to be authorized to substitute trustees, or file notice of defaults, notice of sales, notice of evictions, or lawsuits for all of those in judicial states, turn out to be at variance with all three of the other legs of the stool — the investor paperwork, the borrower’s paperwork and the actual money trail. 

Using a service like Elite Litigation Management services or others to present the matrix, which we also offer at livinglies-store.com, dial 480-405-1688, and you can present a poster-size board that shows a number of the discrepancy between all four legs of the stool, thus giving rise to the question of fact necessary to get to the next step in litigation. remember, if you go in thinking you have a magic bullet that will end your case, you are dreaming of a better worked than the one we have.

F.T.C. Fines a Collector of Debt $2.5 Million

See Full Article on New York Times and Firedoglake.com
By

The Federal Trade Commission signaled on Monday that it would continue to crack down on debt collectors who harass consumers for money they may not even be legally obligated to pay.

In the second-largest penalty ever levied on a debt collector, the F.T.C. said that Asset Acceptance, one of the nation’s largest debt collection companies, had agreed to pay a $2.5 million civil penalty to settle charges that the company deceived consumers when trying to collect old debts.

The settlement is part of a broader effort to patrol the industry, agency officials said.

“Our attention to debt collection has increased over the past couple of years because the complaints have been on the rise,” said J. Reilly Dolan, assistant director for the F.T.C.’s division of financial practices.

Consumer complaints about debt collection companies consistently rank as the second-highest category among all complaints at the agency, behind identity theft. But in 2010, complaints jumped 17 percent to 140,036, which represented 11 percent of all complaints in the commission’s database, up from 119,540, or about 9 percent of complaints, in 2009.

Asset Acceptance, based in Warren, Mich., was charged with a variety of complaints, including failing to tell consumers that they could no longer be sued for failing to pay some debts because the debts were too old. The company’s collectors also failed to inform consumers that paying even a small portion of the amount owed would revive the debt — in other words, making a payment would extend the amount of time the collector could legally sue.

Debt collectors have only a certain number of years to sue consumers. The statute of limitations varies by state, but typically ranges from two to 15 years, Mr. Dolan said, beginning when a consumer fails to make a payment. But borrowers often do not realize that making a payment on the old debt may restart the clock.

Among other things, the complaint also contended that the company — which buys unpaid debts for pennies on the dollar from credit card companies, health clubs and telecommunications and utility providers and tries to collect them — reported inaccurate information about the consumers to the credit reporting agencies. It also said that Asset Acceptance failed to conduct a reasonable investigation when it was notified by one of the credit agencies that a debt was being disputed. Moreover, the complaint says that the company used illegal collection practices and that it continued to try to collect debts that consumers disputed even though the company failed to verify that the debt was valid.

The proposed settlement with Asset Acceptance requires the company to tell consumers whose debt may be too old to be collected that it will not sue. It also requires the company to investigate disputed debts and to ensure it has a reasonable basis for its claims before going after the consumer. It is also barred from placing debt on credit reports without notifying the consumer.

The penalty “is certainly a slap on the wrist and probably a little bit more, but it really depends on what the F.T.C. does to enforce this in the coming months and years,” said Robert Hobbs, deputy director at the National Consumer Law Center and author of “Fair Debt Collection” (National Consumer Law Center, 1987). But “it is a great step forward. It is not self-enforcing, and it has a mechanism for the F.T.C. to follow up.”

Still, while the settlement requires the company to take more responsibility for checking the statute of limitations before it contacts consumers, he said most states did not require debt collectors to do that. That means it is up to consumers to know the rules on the statute of limitations, which, he said, can be “an enormously complex legal question.”

In a statement, Asset Acceptance said that the settlement ended an F.T.C. investigation that began nearly six years ago, and that the company did not admit to any of the allegations. “We are pleased to have this matter behind us, and to have clarity on the F.T.C.’s policies and expectations of the debt collection industry,” said Rion Needs, president and chief executive of Asset Acceptance.

In March, another leading debt collection company, West Asset Management, agreed to pay $2.8 million, the largest civil penalty ever levied by the F.T.C., to settle charges that its collection techniques violated the law. The commission charged that West Asset’s collectors often called consumers multiple times a day, sometimes using rude and abusive language, about accounts that were not theirs. The Consumer Financial Protection Bureau and the F.T.C. now share enforcement authority for debt collection companies, though the new bureau has a power that the F.T.C. did not: it can write new rules for debt collectors. But F.T.C. officials said that debt collection enforcement would remain a top priority.

 

FORENSIC FILES: CARBON DATING THE PAPER AND THE SIGNATURE TO PROVE FORGERY

ONE ON ONE WITH NEIL GARFIELD ONE ON ONE WITH NEIL GARFIELD

COMBO ANALYSIS TITLE AND SECURITIZATION

EDITOR’S NOTE: We have received reports of using radioactive carbon-dating and microscopy proving the age the paper and the age of the signature differ by a matter of years. Dating the other writing on the paper further corroborates the allegation of forgery. Sources have reported that in Atlanta, the procedure has been used on the “original” note produced in court by the pretender lender, proving the document was a forgery even though the borrower conceded the signature was authentic.

There are several ways to reproduce an authentic signature on a new document making it appear to be an original document. And there are several conclusions, each leading to proof of forgery:

  1. If the document is dated 5 years ago, and the signature, indorsement or assignment execution is dated on paper that is more recent, or the actual signature is more recent than the rest of the document (the paper, the other writing etc.) then the signature was not on the document at or near the time of the document’s creation.
  2. If it is the borrower’s signature that has been technologically reproduced and introduced as an original it means that the the actual original note is somewhere else. It also raises the possibility that more “originals” are circulating in those fictitious “Trusts” or “pools” purporting to claim the obligation, note or mortgage.
  3. If it is the signature or paper that is presented as an assignment dated at or near the time of closing with the borrower but either the paper, the signature, the witness signature or the notary signature or stamp does not coincide with the date of the purported document, the same analysis holds: it is a forgery. This also raises the possibility that the “original” note or mortgage has been reproduced more than once and has been sold more than once to more than one “Trust” or “Pool.” This will frequently occur where the originator of the loan misrepresenting itself as a lender is said to have executed an indorsement, delivery and assignment of the note and mortgage at the time of the loan transaction as required by the REMIC statute and the Pooling and Services Agreement.
  4. If the originator is out of business or bankrupt and the person signing, executed the instrument a few days before an evidentiary hearing they must prove their authority to execute the instrument on behalf of what is now a defunct company. The document that is produced to enable the “Limited Signing Officer” to execute will also show that it was recently produced, contrary to the requirements of the REMIC statute and the requirements of the Pooling and Servicing Agreement. This raises the additional possibilities mentioned above, but more importantly the probability that the transfer instrument is void.
  5. Even if the originator of the “loan” transaction is still in business and even if the signor was authorized to sign on behalf of the originator (doubtful in most cases) if the alleged transfer documents took place outside of the 90 day window provided by the REMIC statute and the Pooling and Servicing Agreement, the transfer is void without an additional document showing acceptance by the transferee “trust” or “pool” and waiving the requirements of statute and the PSA. [In order to prove this you might need discovery or testimony from the alleged “trustee” that he would accept a non-performing loan or this loan without consent of the investors or that he had consent of the investors in which case he would need to identify the investors, each of whom would be required to authenticate a document that does not exist].
  6. In order to execute such a waiver, the signature of the investors would be required. Since these events inevitably occur long after the loan is declared in”default” (even if the investor continued to receive payments) it is highly unlikely that an investor would agree to accept a non-performing loan or even a loan which on which payments are being made by a third party but where the borrower  has ceased making payments.
  7. In all such events the original note described a transaction that did not occur and the obligation (that arose when the money was received by borrower or paid to a third party on behalf of the borrower) is not documented. Hence the mortgage, unless it identifies the correct parties and the correct obligation, secures an invalid note. This the obligation is not secured and the note which purports to be secured is evidence of a transaction that never occurred.  Thus the mortgage that is incident to the note described in the mortgage is void, in effect a “wild deed.”
  8. The result is that the obligation still exists, although undocumented and unsecured, owed to an unidentified third party who actually funded the loan. In most cases this is the investor who purchased bogus mortgage backed securities or synthetic derivatives based upon MBS.
  9. The investor probably has a right to sue the homeowner claiming unjust enrichment and perhaps an equitable lien in favor of the investor. The risk to the investor is choosing that remedy is that they would be opening the door to defenses and counterclaims for fraudulent acts and violations of statutes committed by their agents at the closing. Thus instead of pursuing an unsecured undocumented obligation from a homeowner whose wealth is tied up in a largely depreciated home, the investors have elected to sue the investment banking houses for selling bogus bonds.

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Document Forgery

Information can serve as evidence in a forensic investigation. Paperwork, computer files, notes, and more can help piece together the incident under study. However, it is not always guaranteed that the information is genuine. Identifying a deliberately altered document or identifying the manufacture of a fictitious, but convincingly real, document or file is a challenge for the forensic investigator.

Forensic scientists examine paper manufacturers’ marks and, if necessary, use radiocarbon dating techniques to verify the age of a document. Handwriting and linguistic style analysis can help determine the document’s author. Forgery specialists also make use of ultraviolet lighting and spectography equipment to determine whether a document contains evidence of tampering through erasure or added characters. Inks and dyes are examined through chemistry, and paper fibers are examined microscopically in order to validate or determine their source. When criminals create elaborate forgeries, such as counterfeit currency, sophisticated computerized printers are often used, and examining their encrypted computer files and printer cartridges can help determine the source of the forgery. Evidence from criminal cases of suspected forgery are probed by the Federal Bureau of Investigation’s Questioned Documents Unit; the United States Secret Service investigates counterfeit currency.

On September 8, 2004, CBS News anchor Dan Rather aired a news report questioning the service record of President George Bush in the Texas Air National Guard during the Vietnam War. Several weeks later, when the authenticity of one of the key documents used by CBS News was called into question, Rather publicly apologized. CBS News has since been criticized for failing to follow basic journalistic principles; in essence by failing to properly conduct a forensic investigation.

The CBS debacle is one of literally hundreds of examples of forged documents passing scrutiny as the authentic item. On September 17, 1980, White House press spokesman Jody Powell announced that an unidentified group had sought to sow racial discord by circulating a forged Presidential Review Memorandum on Africa that suggested a racist policy on the part of the United States. The first surfacing of the forgery appears to have been in the San Francisco newspaper, Sun Reporter (September 18, 1980). The Sun Reporter’s political editor, Edith Austin, claims in that issue of the paper to have received the document from an “African official on her recent visit on the continent.” The forgery was replayed by the Soviet news agency TASS on September 18, 1980, and distributed worldwide.

Former United States Ambassador to the United Nations Jeanne Kirkpatrick was the target of more than one Soviet forgery. On February 6, 1983, the pro-Soviet Indian weekly, Link published the text of a supposed speech by U.N. Ambassador Kirkpatrick outlining a plan for the Balkanization of India. The speech was never given, but this forgery was replayed many times by Soviet-controlled propaganda outlets. Its most recent appearance was in the book, Devil and His Dart, published in 1986. The author, Kunhanandan Nair, was the European correspondent of Blitz, another pro-Soviet publication.

On November 5, 1982, the British magazine, New Statesman published a photostat of a letter supposedly from a South African official to Kirkpatrick. He was allegedly sending her a birthday gift. The U.S. Mission to the U.N. wrote the magazine on November 19, branding the letter a forgery. The New Statesman countered this by printing another photostat of the forgery with entirely different spacing between the lines. The magazine claimed that the letter was authentic and that they had received it from a source in the U.S. Department of State. A comparison of this forgery with a letter sent by the South African official to a number of U.S. journalists announcing his appointment as Information Counsellor at the embassy revealed that this letter was the exemplar. The real letter had been typed on a computer. The forgery based on it was typed on a typewriter and contained a number of misspellings.

In a particularly bizarre incident, two leaflets were mailed to African and Asian participants in the 1984 Los Angeles Summer Olympics, which were boycotted by the Soviets. Signed by the Ku Klux Klan, they threatened the lives of the athletes. These leaflets later proved to be Soviet forgeries, written in poor English. When the U.S. government exposed them and pointed out that there is no organization in the United States called simply the Ku Klux Klan (the organizations bear individual names like White Knights of the Ku Klux Klan or Invisible Empire of the Ku Klux Klan), TASS, the Soviet official news agency, responded on July 12, 1984, by claiming that the leaflets were signed “the Invisible Empire, The Knights of the Ku Klux Klan.” TASS attempted unsuccessfully to correct the error on the leaflets made by the KGB. The forgeries were intended to preoccupy African-American and Asian-American athletes with intimidation, and negatively affect their performance.

In the 1980s, before the downfall of the Berlin Wall in 1989 and the Soviet Union in 1991, President Ronald Reagan’s signature appeared on a number of forgeries. The last to appear was in May 1987. It was a supposed memorandum to the Secretaries of State and Defense, and the Director of the CIA. In this forgery, which bore the date March 10, 1983, the President was supposedly ordering the establishment of a U.S. military force called the “Permanent Peace Forces” to intervene in Latin America. This forgery received wide circulation in Latin America and was designed to inflame nationalist and anti-American feelings.

These and other examples serve to illustrate how effective a forgery can be. While a typical forensic investigation would likely not have such political ramifications, a forgery could undermine a legal case or lead the investigation in a wrong direction.

LivingLies UPDATED Plan of Engagement: What to Do

UPDATE: This is THE OUTLINE of a plan that is current in its evolution but by no means complete or the last word. It replaces the entry I made in February of this year. The assumption here is that even without taking mortgage foreclosure cases into consideration, the percentage of cases that actually go to trial is between 5%-15% depending upon how you categorize “cases.” On the other hand, if you are not prepared for trial and counting on settlement, your opposition will generally know it and have the upper hand in negotiating a settlement. They are going to play for keeps. You should too. Don’t assume that the note in front of you is the actual original. Close inspection often reveals it is a color copy.

And for heaven sake don’t stand there with your mouth hanging open when someone says you are looking for a free house. You are looking for justice. You had your purse snatched in this transaction, you know there is an obligation, but you also know that they didn’t perfect the security interest (not your fault) and they received multiple payments from multiple parties on these securitized loans. You want a FULL accounting of all such transactions to determine what balance is due after insurance payments, who is subrogated or substituted on claims, and an opportunity to negotiate a settlement or modification with someone who actually has advanced money on THIS transaction and can show it to be so.

WORD OF CAUTION: IF YOU ARE ALREADY IN PROCESS, YOU ARE REQUIRED TO ACT WITHIN THE TIMES SET FORTH BY STATE LAW, FEDERAL LAW, OR THE LAWS OF CIVIL PROCEDURE. FAILURE TO DO SO LEAVES YOU IN AN UPHILL BATTLE TO REVERSE ACTIONS ALREADY TAKEN. ON THE OTHER HAND ACTIONS ALREADY TAKEN “FIX” THE POSITION OF YOUR OPPOSITION, SINCE THEY CAN NO LONGER ASSERT CHANGES IN CREDITOR, LENDER OR TRUSTEE. THUS IT MIGHT BE EASIER, ACCORDING TO SOME SUCCESSFUL LITIGATORS OUT THERE, TO WAIT UNTIL THE SALE HAS OCCURRED AND THEN ATTACK IT AS A FRAUDULENT SALE, THAN TO TRY TO STOP IT WITH A TEMPORARY RESTRAINING ORDER ETC.

CONSIDER BANKRUPTCY, ESPECIALLY CHAPTER 13, WHERE THERE ARE MORE REMEDIES THAN YOU MIGHT THINK IF YOU FILL OUT YOUR SCHEDULES PROPERLY. WE ARE SEEING BETTER RESULTS IN SOME BANKRUPTCY COURTS THAN FEDERAL OR STATE CIVIL COURT PROCEEDINGS.

  1. Get your act together, stop fighting amongst the members of your household and make a decision as to what you want to do — fight or flight?
  2. GET SOME HELP NO MATTER WHAT YOU DECIDE. GET THE LOAN SPECIFIC TITLE SEARCH, GET A SECURITIZATION SEARCH, AND GET A LAWYER LICENSED IN THE COUNTY WHERE YOUR PROPERTY IS LOCATED AND MAKE SURE HE/SHE IS NOT STUCK ON THE PROPOSITION THAT YOU SHOULD LOSE.
  3. If you choose flight, then by all means try the short-sale or jingle mail strategies that have been discussed on this blog. Do not try to make money on the short-sale, since nobody is going to give it to you. You can make a few dollars by riding out the time in foreclosure without making payments (and hopefully saving the money you would have paid) and by negotiating as high a price (a few thousand dollars)  as you can in a deal known as “cash for keys.” Even for this, you should employ the services of a local licensed attorney — at least for consultation. There are several short-sale options that have evolved. Google Edge Simonson or Prime financial. I’ve been working on a short-sale-leaseback option that seems to be picking up steam.
  4. STRATEGIC DEFAULTS RISING: More and more people of all walks of life including those that have some considerable wealth, are walking away from these properties that were the subject of transactions in which the presumed value of the property was preposterous. This is an option that scare the hair off the pretender lenders because it pouts the power in your hands. They in turn are trying to scare the public with threats of deficiency judgments etc and collections. It is doubtful that many or indeed any deficiency judgments would be awarded, even if they were allowed. But in many cases, particularly in non-judicial states, deficiency judgments are NOT allowed. A version of the strategic default that many people like is to stay as long as possible without paying and then walk. If you are smart about it, you raise your own capital by socking away the payments you would have made.
  5. If the decision is fight — then the second decision to make is to answer the question “fight for what?” If you want to buy time, there are many strategies that can be employed, which basically are the same strategies as those used if you are fighting for real. And you might be surprised by the result. Some people get a year or two or even more without payments. You are going to take a FICO hit anyway so why not put some cash in your pocket while you hold back payments.
  6. AVOID crazy deals where you give your property or share your property with a stranger. If you persist in engaging such people at least call references and make sure the references are real. Ask questions about their situation and how they feel it worked out to them. Get as much detail as possible.
  7. AVOID mortgage modification firms. If you persist in engaging such people at least call references and make sure the references are real. Ask questions about their situation and how they feel it worked out to them. Get as much detail as possible. My opinion is that if they don’t pursue an aggressive litigation strategy the statistical probability of you accomplishing anything by going to them is near zero.
  8. In all cases, if at all possible:
  9. (a) Get all your information together along with a short executive summary of your “journal” (even if you create the journal now). That means all closing documents, any information you have on title, recording in the county recorder’s office, the names of all parties who were “at” closing (that means not just the actual people who were there, but he names of companies that were represented or mentioned at closing). Also, include in the file any notices of default(NOD) or notice of Trustee sale (NOTS) or summons from a court.

    (b) Get a MORTGAGE ANALYSIS of the loan transaction itself. THIS INVOLVES THREE PARTS — (1) LOAN SPECIFIC TITLE SEARCH AND CHAIN OF TITLE, EXAMINATION OF THE DOCUMENTS, SIGNATURES, AND DATES OF DOCUMENTS PURPORTING TO BE REAL, (2) SECURITIZATION SEARCH THAT CHASES THE MONEY TRAIL AND WILL PROBABLY LEAD YOU TO SOME IMPORTANT ISSUES LIKE THE VERY EXISTENCE OF THE “TRUST” ASSERTING IT HAS THE RIGHT TO FORECLOSE AS WELL AS MONETARY ISSUES SUCH AS APPLICATION OR ALLOCATION OF PAYMENTS RECEIVED BY THE INVESTOR WHO ADVANCED THE FUNDS FOR THE LOAN AND (3) COMMENTARY AND ANALYSIS THAT IS USABLE BY AN ATTORNEY IN COURT SUCH THAT HE/SHE CAN ARGUE THAT THERE ARE QUESTIONS OF FACT ENTITLING YOU TO PURSUE DISCOVERY. IF YOU WIN THAT POINT YOU ARE ON YOUR WAY TO A SUCCESSFUL CONCLUSION. BUT NOBODY IS GOING TO MAKE IT EASY FOR YOU.

    (c) Who is your creditor? The TILA Audit alone does nothing without taking further steps. The Trustee’s “Take-down” report should be demanded in non-judicial states and if the house is in foreclosure, your written objection should be sent to the Trustee.

    (d) If someone tells you they are “pretty sure” or can “definitely”  stop your foreclosure or promises a favorable outcome, and asks for money up front, then run like hell. This is a scam. IF THEY TELL YOU THEY WILL DO WHAT THEY CAN, AND THEY GIVE YOU SOME EXAMPLES OF WHAT THEY WILL BE DOING FOR YOU THEN LISTEN AND GET REFERENCES.

    (e) Only a Court order stops foreclosure or a Trustee Sale. No letter of any form or substance will stop it unless the other side is intimidated into stopping the action, which sometimes happens when they know their paperwork is “out of order.”

    (f) Get a Forensic Mortgage Analysis Report OR AN EXPERT DECLARATION that summarizes in a few pages the potential issues that you should be investigating AND WHICH LENDS SUPPORT TOY OUR DENIAL OF THE DEFAULT, DENIAL OF THE RIGHT OF THE OPPOSING PARTY TO CLAIM A DEFAULT, DENIAL OF THE RIGHT OF THE OPPOSING PARTY TO FORECLOSE.

    (g) Get an Expert Declaration that uses the forensic report and the expert opinions of specific experts (like appraisers, title analysts) and which identifies the probable chain of securitization and the money trail. You’ll be surprised when you find out there were two yield spread premiums not disclosed to you and that they can total as much or more than the “loan” itself. GET EXPERT OPINION ON PROBABLE DAMAGES INCLUDING RETURN OF UNDISCLOSED FEES, INTEREST, ETC. (SEE LAWYER’S WORKBOOK FROM GARFIELD CONTINUUM).

    (h) Send the Forensic Report and expert declaration to the known parties, with an instruction to forward it to all other parties known to them in the securitization chain. Include a Qualified Written Request(QWR) AND a Debt Validation Letter(DVL) (which is really a debt verification letter). Don’t be surprised if your pretender lenders will come back and tell you your QWR is defective or improper in some way, but that’s OK, you have followed statutory procedure and they didn’t. With the help of an attorney and with consultation with your experts decide on what resolution you will demand — damages, rescission, etc.

    (i) Don’t believe a word about modification. Practically none of them go through. They are leading you into default so they can collect more service fees, and get money out of you that you think is stopping the foreclosure.

    (j) Don’t believe a word that any pretender lender or representative says or represents, even if they are a lawyer, particularly verbal communications that they refuse to confirm in writing. Challenge everything.

    (k) Don’t accept any document as authentic. Many documents are being fabricated or forged, including affidavits. This is why you need a lawyer and an expert and a Forensic mortgage analysis — to determine what documents and parties are suspect and what you should be asking for in discovery and in the QWR and DVL.

    (l) YOUR FIRST STRATEGY IS TO RAISE NOT PROVE ISSUES OF FACT. BY PRODUCING A FORENSIC REPORT AND EXPERT DECLARATION, NEITHER YOU NOR YOUR LAWYER NEEDS TO ACQUIRE EXPERTISE IN SECURITIZED LOANS. YOU ONLY NEED TO RAISE THE ISSUE OF FACT BY SHOWING THE COURT THAT YOU HAVE EXPERTS WHO SAY THE PRETENDER LENDERS/TRUSTEES ETC. ARE NOT CREDITORS AND NOT AUTHORIZED AGENTS WORKING FOR THE CREDITORS. THEY SAY THEY ARE IN FACT THE CREDITORS OR HAVE SOME AUTHORITY GRANTED BY AN ALLEGED CREDITOR. IT IS NOT FOR THE COURT TO ACCEPT ONE VIEW OR THE OTHER, BUT RATHER TO ALLOW DISCOVERY AND AN EVIDENTIARY HEARING ON THE ISSUE OF STANDING (SEE MANY RECENT CASES REPORTED SINCE FEBRUARY ON THIS BLOG).

    (m) Be very aggressive on discovery. They will argue that even if they are not the creditor and even if they refuse to disclose the identity of the creditor, they are still entitled to disclose because they are the holder of the note and/or mortgage. Your argument will probably be that they still have a duty to disclose the identity of the creditor and the source of the their authority to represent the creditor, along with proof that the creditor has received notice of these proceedings.

Moral Hazard in Non-Judicial Sale: Trustee commits violations of FDCPA and other statutes!

From Eaine B

Editor’s Note: I have long advocated sending letters, objections to sale and complaints against “trustees” named (or substituted) on deeds of trust who initiate foreclosure proceedings. Indeed, it is highly probable that because of statutes attempting to protect the trustee from liability, the trustee is at best usually named only as a nominal party in a lawsuit challenging the legality of the non-judicial sale, demanding the identity and contact information of the creditor and getting a full accounting from the real creditor.

I would argue that this reader’s comment is more on target than they even know. Because that is the point — knowledge. If the “trustee” knowingly proceeds when it KNOWS there is a question of title, a question of who is the creditor, and knows that this loan was sold to third parties that have not been disclosed to the Trustor nor the Trustee, then the trustee is more than a nominal party, to wit: they are a co-venturer in a  fraudulent scheme.

Typically non-judicial action commences under a “substitute trustee”.  One would ask why it was necessary to call in a “substitute trustee” from the bullpen, when the current one is just fine. The only possible answer is that the old trustee either doesn’t want any part of this, or won’t do it without following industry standards to confirm ownership etc. It would seem fairly obvious that if the existing trustee is still in business and continues to qualify as a trustee, the only rational reason to change trustees is because the actors wish to do business with people who won’t ask questions.

Often the “substitution of trustee” is backdated, undated or dated after the notice of sale, notice of default etc., so there is a simple procedural angle to set back the sale if you are actually reading the documents, and getting a title report.

More substantively, the “substitute trustee” is granted that position by a party who in all probability does not have the power to grant it — but that requires a forensic analysis, title report, and probably a lawsuit to establish. For example, if some person unknown to MERS assumes the title of “assistant Vice president of Mortgage Electronic Registration Systems” and signs the substitution of trustee or any other document, they probably lack the power to do so, or they lack the documentation showing they have the power to do so.

This actually runs to the core of moral hazard in non-judicial states. Anyone who knows you have missed payments, could file a “substitution of Trustee” document in the county records, send you a notice of default, notice of sale and sell your property to the highest bidder — all BEFORE your real servicer (who we know is only a pretender lender) even knows about it. It is a scam waiting to happen. The scammer then takes the money and runs. Meanwhile you have most likely given up and left the house so it is now abandoned. This scenario can only happen in non-judicial states, where the statute authorizing a non-judicial foreclosure sale ASSUMES that the right party is doing the right thing under proper authority.

When mortgages were simple, and securitization was only an idea, the opportunity for abuse in non-judicial states was present but generally controllable because your true lender had control of the loan, they knew when you were delinquent, and they would be in touch with you, during which time it might come out that you had already received a notice of sale from a “substitute trustee.”

In the world of securitization where the potential real parties in interest are almost infinite in number, where the credit report is used rather than the title report, and where various layers of companies are used to create plausible deniability, insulation from liability and the ability to move things around “off-balance sheet” or “off record” at the county recorder’s office, the potential for abuse is practically infinite. And true to form, my experience is that virtually every foreclosure in a non-judicial state contains at least the taint of this abuse and often facially shows the failure to use proper documentation.

Comment submitted by Eaine B—–

Trustee commits violations of Fair Debt Collections Practice Act!
A good cause of action against Northwest Trustee Services Inc, Routh Crabtree Olsen PS is that I have found they sell your private information to the public. Go to http://www.usa-foreclosoure.com and find your foreclosure….then buy for $39.00 a copy of the title report that is supposed to be private between the trustee and the beneficiary. Any public person can order your report online. This is mail and interstate violations. Make a complaint to the Bar association, and the FTC and your state Attorney General.
Call the title company on the top of the form and ask them. Then perhaps you can file a suit against Routh Crabtree Olsen and Northwest Trustee Services Inc for violations of 15 USC 1692 Fair Debt Collection Practices Act violation. It’s triple damages. Most likely they will have sent you a letter from Routh Crabtree Olsen. One I got even quotes the 15 USC 1692. So obviously THEY know about it. The owner of Routh, Crabtree and Olsen is Stephen Routh and Lance Olsen. Routh has various companies in AK, MT, AZ, CA etc. Just look at the list on the various web sites. http://www.usa-foreclosure.com has the same address as Routh Crabtree Olsen and Northwest Trustee Services and as Routh in AK.
Also, the process serving company that they use is owned by them.

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