Garmin factors: Proving Your Need to Force the Opposition to Respond to Discovery Requests

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

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see Garmin Factors to Justify Order Compelling Discovery

Lawyers Practice Note: Compelling discovery is the most important part of foreclosure defense. The current strategy of the banks is to object to practically everything. Set down their objections for hearing and file a motion to compel. But in your motion to compel you need to establish both facts and law entitling you to the answers to interrogatories, production of documents and answers to requests for admissions. The last thing these banks want is to open up their books and show there was no consideration for any of the paperwork that pretends there was funding of the original loan or that there was no consideration for any alleged sale — because in the absence of that there was no loan and there was no sale. That would make them strangers to the transaction clearly lacking standing.

The first Garmin factor requires that the party requesting discovery should already be in possession of evidence showing, beyond mere speculation, that something useful will be uncovered by the discovery requests. Here, the patent owner had only established the “mere possibility” that something useful would be found, which was not enough.

[Editor’s Note: If no holder in due course has been alleged or there is an absence of documentation proving the essential elements of a party entitled to enforce, that might be enough to convince a judge to compel discovery. If you can show conflicts in the documentation already provided by your opposition, that should close the deal.]

the third Garmin factor, provides that it is not in the interest of justice to require a party to produce information the other party can reasonably figure out or assemble on its own without additional discovery of the opposite party.

[Editor’s Note: The actual best evidence of the existence of a true transaction is the canceled check, wire transfer receipt or ACH confirmation. This is solely within the care, custody and control of a party seeking to foreclose — and if it isn’t available, they should not be in court because they cannot prove standing]

the fifth Garmin factor, which provides that any additional discovery should be “sensible and responsibly tailored according to a genuine need.”

[Editor’s Note: Since most defenses are predicated on the real ownership of the debt, the real status and identity of the creditor, and the real rights to the note and mortgage, if you state your narrative in your motion it is apparent that this goes to the core of your defense. By denying the request to compel discovery the court is effectively denying your defense even after it has survived legal attack by your opposition when they moved to strike your affirmative defenses.]

Livinglies Recalibrates Forensic and Litigation Support Services

Responding to specific requests from lawyers and homeowners, the livinglies store has changed its offering. Www.livingliesstore.com

You can still get the old Combo of just a title and securitization report, but we have added some levels and services to meet the demand for our services. Of course pricing has been adjusted to reflect the increased workload. Actual litigation support is provided throughout the country to any attorney by Garfield, Gwaltney, Kelley and White (GGKW) with offices now in Broward County and Leon County. We will soon have offices in the Florida Panhandle and Dade County. I’ll be posting separately on each office and the attorneys we have selected to litigate in accordance with our requirements.

GGKW represents homeowners throughout the state of Florida. Do not ask us to provide the full range of litigation support if you are a pro se litigant, even if your case is in Florida. You would be asking us to provide services that might be the unauthorized or unethical practice of law in states where we are not licensed. It would also be a bad idea because you cannot expect an attorney from another state to know the laws of your state, how they are applied in your courts, and the differences between individual judges. Sometimes local rules are dispositive of cases. Florida homeowners can get some additional assistance from GGKW or the livinglies store, but there is no good substitute for an attorney who knows and can argue rules of procedure and laws of evidence as they relate to your case.

The first additional the Combo offering is the Qualified Written Request and Debt Validation Letters. These are rising in importance and an increasing number of lawyers are asking us to prepare these. We can’t send them out but we can prepare them for the signature of the homeowner. We ask more pointed questions about whether the originator actually loaned money to the homeowner — that is, whether there was any transaction between the homeowner and the party stated on the note and mortgage (or deed of trust). This has grown in importance because of the absence of a fundamental allegation by the pretender lenders — that someone in their chain of paper actually entered into an actual transaction (offer, acceptance, consideration and execution) with the alleged borrower. It appears in many cases that the actual funding of the loan was a stranger to the paperwork and that the parties on the paperwork are strangers to the actual transaction.

We also are offering affidavits and declarations from the auditors or experts, including myself, together with a consultation to answer questions on the methods used and the conclusions to be drawn. Where an attorney for the homeowner is available during the consult, the homeowner will hear suggestions on specific strategies and tactics for the battle in court.

We are also just now adding to the package, Freedom of Information requests to the FDIC, OTS, OCC and the Federal Reserve, where applicable. In all likelihood the request you make about the results of their investigations against the banks that led to the Consent Orders and any filings after those orders were entered will be met with some sort of stonewalling. After all, the investigator grilled by Senator Warren admitted to finding thousands of wrongful Foreclosures but refused to tell her or anyone else in Congress which mortgages were effected or the names of homeowners who were illegally thrown out of their homes. It is important to note that these investigations, like the San Francisco study, found serious defects in which the foreclosure should never have happened.

The the response to FOIA requests will undoubtedly require you to push the agency in court to make the disclosures. And interrogatories directed at compliance with the Consent Orders may reveal the actual findings and the names of homeowners who are living outside the homes they still should ow and possess.

We recommend that the other companies providing these services follow our lead. We believe it will lead to better results and a more comprehensible presentation in Court.

Of course I need to remind you that nothing in this article nor the services and products on the store are a substitute for a licensed attorney. You should take no action at all without consulting with a licensed attorney, hopefully one that is familiar with the issues of securitized loans. Most of these cases are being resolved on the basis of the the rules of civil procedure and the laws of evidence. This is above the head of most pro se litigants. Failure to at least consult with an attorney licensed interest state in which your property is located could well result in losing a case you could have otherwise won.

A New Set of Interrogatories:

GET A CONSULT WITH NEIL GARFIELD

DENY AND DISCOVER!!

INTERROGATORIES: FOLLOWING THE MONEY

PLEASE!!! CONSULT WITH ATTORNEY LICENSED IN YOUR JURISDICTION OR THE JURISDICTION IN WHICH THE PROPERTY IS LOCATED BEFORE YOU ACT ON ANYTHING ON THIS BLOG. These need to tweaked to fit your case, but they are a decent first step at getting to the truth:

Interrogatories:

  1. Please identify the financial institution, contact information and account manager and contact information for any accounts maintained in any checking, savings, or investment account in a demand deposit account or otherwise in the name of U.S. Bank as Principal Trustee for any entity claiming an interest in the subject loan, on behalf of the holders of any certificated or uncertificated interests in J.P. Morgan Acquisition Trust 2–6-CH1, Asset backed Pass-Through Certificate series 2006-CH1 (hereinafter the Pool) with sufficient specificity that fulfills the requirements for you to identify and produce documents or witnesses related to such account(s) upon subpoena.
  2. Please state whether the Pool is a trust and if so, under the laws of which state the trust was created, registered or otherwise lawfully created.
  3. Please state the address and phone number for the Pool or its manager.
  4. Please identify the original document by which U.S. Bank claims to be Trustee for the Pool, including the current location of said documents and the name of the party, person or entity that has current possession of said document with sufficient specificity.
  5. Please state and identify the source documents that reflect the transactions relating to the Pool as to all receipts and disbursements.
  6. Please identify all parties or entities that engaged in any transaction in which a guarantor, co-obligor, or other third source of payments was created in any way related to the subject loan or the subject Pool.
  7. Please identify the person or persons, including contact information, telephone number, address, employer, and email who provided any information that was used to compute the claim of the amount due on the subject alleged loan.
  8. Please identify the source documents utilized by any party or person who participated in computing the amount claimed as due for the subject loan.
  9. Please identify the person or persons serving as the record-keeper and bookkeeper for the Pool, including contact information, phone number, address and employer.
  10. Please identify the name of the auditing firm that reviewed or audited the financial information relating to the subject loan or the Pool.
  11. Please identify the documents by which the closing agent on the subject loan received instructions, wire transfer receipts, or any other documents or instruments that would show the source of funding for the loan, including the location of such documents, the person who serves as record keeper of those documents, their contact information, address and phone number.
  12. Please state whether or not the payee on the promissory note proffered by Plaintiff was the source of funding of the loan. The source of funding means the party or parties who provided the actual money that was sent to the closing agent for the closing of the loan.
  13. Please state whether the source of funding and the payee on the alleged note were the  same parties.
  14. Please state whether the source of funding and the mortgagee on the alleged note were the same parties.
  15. Please state whether the party identified as the “lender” on the promissory note in the subject alleged mortgage loan transaction performed due diligence in accordance with industry standards for the underwriting of the loan.
  16. If Your answer is in the affirmative to the previous question please identify the persons who were responsible or who provided services or performed any tasks with respect to performing said due diligence including their contact information, telephone number, address and employer.
  17. Please state the name and contact information of the person or persons in possession, care custody or control of the underwriting file for the subject loan.
  18. Please state whether the underwriter, Master servicer, subservicer or any other party relating to the pool received or disbursed any funds relating to the pool, and if so identify the receipts or disbursements by generic type — i.e., payments from borrower, funding from from lending source, insurance, credit default swaps, buyouts, buy-backs,, insurance premiums, fees or costs.
  19. Please state the name of the person or persons who decided how such third party payments or disbursements should be allocated to or against the pool.
  20. Please state the policy for treatment of receipts of proceeds from the above-stated third party payments and disbursements as to how such money was or was not allocated to the pool.
  21. Please describe any insurance policy issued with respect to the pool or the securities issued by the pool including the location, person in custody of said policy and their contact information, phone number, address and employer.
  22. Please describe any credit default contract issued with respect to the pool or the securities issued by the pool including the location, person in custody of said contract and their contact information, phone number, address and employer.
  23. Please describe any other contract, policy or instrument that resulted in payments or disbursements with respect to the pool or securities issued by the pool including the location, person in custody of said policy and their contact information, phone number, address and employer.
  24. Please state whether a current loan receivable account has been maintained by any party with respect to the subject alleged loan other than the subservicer who received payments from the borrower.
  25. Please state the party or parties to whom payment was directed by the subservicer, when such payments started, and when such payments stopped.

 

 

New Workshop on Motion Practice and Discovery

why-you-should-attend-the-discovery-and-motion-practice-workshop

VISIT LIVINGLIES STORE FOR FREE VIDEOS AND OTHER RESOURCES

START WINNING CASES!!

May 23-24, 2010 2 days. 9am-5pm. Neil F Garfield. CLE credits pending but not promised. Register Now. Seating limited to 18. INCLUDES LUNCH AND EXTENSIVE MANUAL OF FORMS, NARRATIVE AND CASES. An in-depth look at securitized residential mortgages and deeds of trust. Latest cases on standing, nominees, splitting note from security instrument, bankruptcy strategies, expert declarations, forensic analysis reports.

Lawyers, paralegals, experts, forensic analysts will all benefit from this. This workshop includes monthly follow-up teleconferences and continuing on-going support with advance copies of articles, cases and analysis.

  1. STRATEGIC REVIEW: WHY THESE CASES ARE BEING WON AND LOST IN MOTION PRACTICE.
  2. SECURITIZATION REVIEW
  3. USE OF FORENSIC REPORTS AND EXPERT DECLARATIONS
  4. RAISING QUESTIONS OF FACT IN CREDIBLE MANNER
  5. SETTING UP AN EVIDENTIARY HEARING
  6. FOLLOW THE MONEY
  7. OBLIGATION, NOTE, BOND, MORTGAGE, DEED OF TRUST ANALYSIS
  8. TILA, RESPA, QWR, DVL AND RESCISSION — WHY JUDGES DON’T LIKE TILA RESCISSION AND HOW TO OVERCOME THEIR RESISTANCE.
  9. NOTICE OF DEFAULT, TRUSTEE, STANDING, REAL PARTY IN INTEREST EXAMINED AND REVIEWED
  10. INVESTORS, REMICS, TRUSTS, TRUSTEES, BORROWERS, CREDITORS, DEBTORS, HOMEOWNERS
  11. FACT EVIDENCE ON MOTIONS
  12. FORENSIC EVIDENCE ON MOTION
  13. EXPERT EVIDENCE ON MOTION
  14. ORAL ARGUMENT
  15. WHAT TO FILE
  16. WHEN TO FILE
  17. EMERGENCY MOTIONS — MOTION TO LIFT STAY, MOTION TO DISMISS, TEMPORARY RESTRAINING ORDERS, MOTION TO COMPEL DISCOVERY
  18. DISCOVERY: INTERROGATORIES, WHAT TO ASK FOR, HOW TO ASK FOR IT AND HOW TO ENFORCE IT. REQUESTS TO PRODUCE. REQUESTS FOR ADMISSIONS. DEPOSITIONS UPON WRITTEN QUESTIONS.
  19. FEDERAL PROCEDURE
  20. STATE PROCEDURE
  21. BANKRUPTCY PROCEDURE
  22. ETHICS, BUSINESS PLANS, AND PRACTICAL CONSIDERATIONS

Sample Interrogatories

SUPERIOR COURT OF NEW JERSEY

CHANCERY DIVISION – ESSEX VICINAGE

——————————————————————X                Civil Action

Deutsche Bank National Trust Company, As Trustee Of

Argent Securities, Inc. Asset Backed Pass Through Certificates, Series 2004-PW1

Docket Number: XXX

REQUEST FOR

INTERROGATORIES

Plaintiff(s),

vs.

XXX; John Doe,

Husband Of XXX                                                                            XXX Avenue

Rosedale, NY 11422

Defendant(s)/Pro Se ——————————————————————X

REQUEST FOR DISCOVERY: INTERROGATORIES

i). Defendant, XXX, serves these interrogatories on Deutsche Bank National Trust Company, as authorized by Case Management Order dated September 30, 2009, and by the Federal Rule of Civil Procedure 33. Deutsche Bank National Trust Company must serve an answer to each interrogatory separately and fully, in writing and under oath within 30 days after service to: XXX, XXX Ave., Rosedale, NY 11422.

INSTRUCTIONS

ii). These requests for interrogatories are directed toward all information known or available to Deutsche Bank National Trust Company – not its lawyer, Ralph F. Casale, Esq. – including information contained in the records and documents in Deutsche Bank National Trust Company’s custody or control or available to Deutsche Bank National Trust Company upon reasonable inquiry.

iii). Each request for interrogatory is to be deemed a continuing one. If, after serving an answer, you obtain or become aware of any further information pertaining to that request, you are requested to serve a supplemental answer setting forth such information.

iv). As to every request for interrogatory which an authorized officer of Deutsche Bank National Trust Company fails to answer in whole or in part, the subject matter of that request will be deemed confessed and stipulated as fact to the Court.

v). Kindly attach additional sheets as required identifying the Interrogatory being answered.  You have a continuing obligation to update the information in these Interrogatories as you acquire new information. If no such update is provided in a reasonable period of time that you acquired such information, it may be excluded at trial or hearing.

DEFINITIONS

vi). “You” and “your” include Deutsche Bank National Trust Company and any and all persons acting for or in concert with Deutsche Bank National Trust Company.

vii). “Document” is synonymous in meaning and equal in scope to the usage of this term in Federal Rule of Civil Procedure 34(a) and includes computer records in any format. A draft or non-identical copy is a separate document within the meaning of this term. The term “document” also includes any “tangible things” as that term is used in Rule 34(a).

viii). Parties. The term “plaintiff” or “defendant”, as well as a party’s full or abbreviated name or a pronoun referring to a party, means the party and, where applicable, (his/her/its) agents, representatives, officers, directors, employees, partners, corporate parent, subsidiaries, or affiliates.

ix). Identify (person). When referring to a person, “identify” means to give, to the extent known, the person’s full name, present or last known address, telephone number, and when referring to a natural person, the present or last known place of employment. Once a person has been identified in compliance with this paragraph, only the name of that person needs to be listed in response to later discovery requesting the identification of that person.

x). Identify (document). When referring to a document, “identify” means to give, to the extent known, the following information: (a) the type of document; (b) the general subject matter of the document; (c) the date of the document; (d) the authors, address, and recipients of the document; (e) the location of the document; (f) the identity of the person who has custody of the document; and (g) whether the document has been destroyed, and if so, (i) the date of its destruction, (ii) the reason for its destruction, and (iii) the identity of the person who destroyed it.

xi). Relating. The term “relating” means concerning, referring, describing, evidencing, or constituting, directly or indirectly.

xii). Any. The term “any” should be understood in either its most or its least inclusive sense as necessary to bring within the scope of the discovery request all reasons that might otherwise be construed to be outside of its scope.

REQUEST FOR INTERROGATORIES

1. Please identify each person who answer these interrogatories and each person (attach pages if necessary) who assisted, including attorneys, accountants, employees of third party entities, or any other person consulted, however briefly, on the content of any answer to these interrogatories.

ANSWER:

2. For each of the above persons please state whether they have personal knowledge regarding the subject loan transaction.

ANSWER:

3. Please state the date of the first contact between Deutsche Bank National Trust Company and the borrower in the subject loan transaction, the name, address and telephone number of the person(s) in your company who was/were involved in that contact.

ANSWER:

4. Please identify every potential party to this lawsuit.

ANSWER:

5. Please identify the person(s) involved in the underwriting of the subject loan. “Underwriting” refers to any person who made representations, evaluations or appraisals of value of the home, value of the security instruments, and ability of the borrower to pay.

ANSWER:

6. Please identify any person(s) who had any contact with any third party regarding the securitization, sale, transfer, assignment, hypothecation or any document or agreement, oral, written or otherwise, that would effect the funding, closing, or the receipt of money from a third party in a transaction that referred to the subject loan.

ANSWER:

7. Please identify any person(s) known or believed by anyone at Deutsche Bank National Trust Company who had received physical possession of the note and allonges, the mortgage, or any document (including but not limited to assignment, endorsement, allonges, Pooling and Servicing Agreement, Assignment and Assumption Agreement, Trust Agreement,  letters or email or faxes of transmittals  including attachments) that refers to or incorporates terms regarding the securitization, sale, transfer, assignment, hypothecation or any document or agreement, oral, written or otherwise, that would effect the funding, or the receipt of money from a third party in a transaction, and whether such money was allocated to principal, interest or other obligation related to the subject loan.

ANSWER:

8. Please identify all persons known or believed by anyone in Deutsche Bank National Trust Company or any affiliate to have participated in the securitization of the subject loan including but not limited to mortgage aggregators, mortgage brokers, financial institutions, Structured Investment Vehicles, Special Purpose Vehicles, Trustees, Managers of derivative securities, managers of the company that issued an Asset-backed security, Underwriters, Rating Agency, Credit Enhancement Provider.

ANSWER:

9. Please identify the person(s) or entities that are entitled, directly or indirectly to the stream of revenue from the borrower in the subject loan.

ANSWER:

10 Please identify the person(s) in custody of any document that identifies the loan servicer(s) in the subject loan transaction.

ANSWER:

11. Please identify any person(s) in custody of any document which refers to any instruction or authority to enforce the note or mortgage in the subject loan transaction.

ANSWER:

12. Other than people identified above, identify any and all persons who have or had personal knowledge of the subject loan transaction, underwriting of the subject loan transaction, securitization, sale, transfer, assignment or hypothecation of the subject loan transaction, or the decision to enforce the note or mortgage in the subject loan transaction.

ANSWER:

13. Please state address, phone number, and employment history for the past 3 years of Tamara Price, Vice President, Argent Mortgage Company, LLC, “designated as the Assignor” of the mortgage loan to Deutsche Bank National Trust Company (Assignment of Mortgage recorded in Essex County Register’s Office on June 25, 2008).

ANSWER:

14. Please state the date on which Argent Mortgage Company, LLC (originator) sold the mortgage loan to Ameriquest Mortgage Company (Seller and Master Servicer).

ANSWER:

15. Please state the date on which Ameriquest Mortgage Company (Seller and Master Servicer) sold the mortgage loan to Argent Securities, Inc. (Depositor).

ANSWER:

16. Did Argent Mortgage Company, LLC (originator) or previous servicers of this account receive any compensation, fee, commission, payment, rebate or other financial considerations from Ameriquest Mortgage Company (Seller and Master Servicer) or any affiliate or from the trust funds, for handling, processing, originating or administering this loan?

ANSWER:

17. If yes, please describe and itemize each and every form of compensation, fee, commission, payment, rebate or other financial consideration paid to Argent Mortgage Company, LLC, the originator or previous servicers of this account by Ameriquest or any affiliate, or from the trust fund.

ANSWER:

18. Please identify any party, person or entity known or suspected by Deutsche Bank National Trust Company or any of your officers, employees, independent contractors or other agents, or servants of your company who might possess or claim rights under the subject loan or mortgage and/or note.

ANSWER:

19. Please identify the custodian of the records that would show all entries regarding the flow of funds for the subject loan transaction prior to and after closing of the loan. (Flow of funds, means any record of money received, any record of money paid out and any bookkeeping or accounting entry, general ledger and accounting treatment of the subject loan transaction at your company or any affiliate including but not limited to whether the subject loan transaction was ever entered into any category on the balance sheet at any time or times, whether any reserve for default was ever entered on the balance sheet, and whether any entry, report or calculation was made regarding the effect of this loan transaction on the capital reserve requirements of your company or any affiliate.)

ANSWER:

20. Please identify the auditor and/or accountant of your financial statements or tax returns.

ANSWER:

21. Please identify any attorney with whom you consulted or who rendered an opinion regarding the subject loan transaction or any pattern of securitization that may have effected the subject loan transaction directly or indirectly.

ANSWER:

22. Please identify any person who served as an officer or director with Deutsche Bank National Company or Argent Mortgage Company LLC commencing with 6 months prior to closing of the subject loan transaction through the present. (This interrogatory is limited only to those people who had knowledge, responsibility, or otherwise made or received reports regarding information that included the subject loan transaction, and/or the process by which solicitation, underwriting and closing of residential mortgage loans, or the securitization, sale, transfer or assignment or hypothecation of residential mortgage loans to third parties.)

ANSWER:

23. Did any investor/certificate holder approve or authorize foreclosure proceedings on XXX’s property?

ANSWER:

24. Please identify the person(s) involved or having knowledge of any insurance policy or product, plan or instrument describing over-collateralization, cross-collateralization or guarantee or other instrument hedging the risk of default as to any person or entity acting as an issuer of any securities or certificates. (Such instrument(s) relate to the composition of a pool, tranche or other aggregation of assets that was created, included or referred to the subject loan and the pool or aggregation was transmitted, transferred, assigned, pledged or hypothecated to any entity or buyer. A person who “transmitted, transferred, assigned, pledged or hypothecated” refers to any person who suggested, approved, received or accepted the composition of the pool or aggregation made or confirmed representations, evaluations or appraisals of value of the home, value of the security instruments, ability of the borrower to pay.)

ANSWER:

25. Please identify the person(s) involved or having knowledge of any credit default swap or other instrument hedging the risk of default as to any person or entity acting as an issuer of any securities or certificates. (Such instrument(s) relate to the composition of a pool, tranche or other aggregation of assets that was created, included or referred to the subject loan.)

ANSWER:

Submitted by:  XXX

XXX  Ave

Rosedale, NY 11422

CERTIFICATE OF SERVICE

I, I, XXX certify that on this 29th day of the month of October, 2009.

1. A true copy of the 10-page Request for Interrogatories was served on The New Superior Court of New Jersey, Chancery Division – Essex Vincinage, at 212 Wasington Street, Eighth Floor, Newark, New Jersey.

2. A copy of the foregoing was mailed on October 28, 2009 to

Dated: Queens New York

This _________ day of ___________ 2009    XXX

XXX Ave

Rosedale, NY 11422

Florida Orders All Homestead Property Foreclosures into Mediation

See AOSC09-54_Foreclosures.

A good step in the right directions.

I would add that you should be very careful that you don’t get trapped into the “lender narrative.” The Judges are going to very receptive and even enthusiastic about referring these cases to mediation, so don’t annoy them with motions, pleadings or hearings that attempt to circumvent the mediation process. As for whether the order will be applied to existing cases, it remains to be seen how Florida Judges react to this Administrative Order.

CAUTION: The “Lender narrative” tries to focus attention exclusively on when you made your last payment and whether the obligation was created when you purchased the financial product (Mortgage Loan). It avoids all issues as to who is the creditor and how you could get a FULL accounting of all financial transactions in the securitization chain that either were or should have been allocated to your loan or the pool to which your loan was assigned. (Their tactic has been to keep the focus on the small window in which one servicer was receiving payments from the homeowner, ignore payments made on behalf of the homeowners, and to effectively bar you from inquiring as to whether they received any money from bailouts, AIG, or even if they turned over the payments you DID make to the creditor).

In order to avoid getting trapped into the “Lender narrative” I would suggest a number of possible steps. First, of course is get all your information together. There is an intake form on this blog that gets you to create a narrative of your own mortgage transaction. Second, get a forensic audit or review/analysis or TILA audit. Third, get a declaration from an “expert witness”. Consult with local counsel as this administrative order might be augmented by local rules. Several Circuits have issued their own administrative orders that have not yet been revoked or suspended.

If you are permitted to do so by the Judge, file a motion to dismiss the foreclosure suit and if that is denied then file your defenses, affirmative defenses and counterclaims. You don’t want to put yourself in the position where you are are effectively in default and give the plaintiff an opportunity to petition the court for entry of a default final judgment.

Lastly, in ALL events, I would seek answers to the basic questions: the identity of the creditor and the full accounting for ALL transactions allocated or could be allocated to your loan or the pool that your loan was alleged assigned. The QWR and DVL ought to accomplish this but it is rarely regarded seriously by the Plaintiff and Judges seem reluctant to enforce it because of their unfamiliarity with RESPA, TILA, UCPA etc. So you might need to file interrogatories that are limited to (I think) 25 questions including sub-parts. A Request to produce would also be needed.

Preliminary discovery (Interrogatories, Request to Produce, possibly Request for Admissions) should be directed at the single issue of identifying the decision-maker who could attend mediation for the “lender” side of the case.

Your position should be that as a result of the forensic review and the advice of your expert, an issue of fact exists — conflicting representations between those proffered or plead by Plaintiff’s counsel and the information you have obtained from experts. At this stage you should not try to win your case by having the Judge agree with you that the foreclosure is a fraud. Stay away from that assertion until you can really back it up.

The point is simply that an issue of fact exists that affects the mediation. Only true parties  to the dispute can be decision-makers. Only the creditor is a true party with that power unless it has been legally and irrevocably delegated to another party. Either way you need the idenity of the creditor(s), their contact information and the documentation that shows that the Plaintiff is empowered to make final decisions regarding this loan.

You need to conduct limited EXPEDITED discovery to either confirm the Plaintiff as the creditor or identify the creditor. Recent news reports of suits against intermediaries by bondholders and instructions from bondholders to fire servicers and other intermediaries who breached their fiduciary duties to the investors indicate a question of fact as to whether the party who filed this suit is a creditor, representing a creditor with authority to do so, whether they have decision-making authority and even whether the attorney appearing represents the Plaintiff or any other party.

Your point is that there is a question of fact that must be answered in discovery in order to proceed with compliance with the Supreme Court’s Order and that you are only asking for information the Plaintiff should already have if they properly field the foreclosure suit. You want the creditor’s name and contact information so you can (a) attempt to settle privately (b) comply with Federal mandate on seeking modifications, and (c) comply with Florida mandate on mediation. How can you do this if the creditor is not present? How can you enter into any agreement with a party whose authority to bind the creditor is in question?

You might need to file a motion with the Court and notice it for motion calendar. The motion would simply ask that you be permitted to conduct expedited limited discovery to facilitate the mediation process.

How to Attack MERS and WIN!

 

NOW AVAILABLE OF AMAZON/KINDLE!

EDITOR’S NOTE:MY WIFE WILL KILL ME IF SHE FINDS OUT I’VE BEEN WORKING. SHHHHHHHHH.

This news is irresistible. MERS is all but dead with this single decision (see below). Here are the salient points:

 

  1. MERS is not a beneficiary even if the mortgage deed or deed of trust states otherwise.
  2. MERS lacks standing in bankruptcy to seek relief from stay.
  3. MERS lacks ANY financial interest in
    1. the obligation
    2. the note
    3. the mortgage
    4. any assignment, allonge (often misidentified as an assignment, indorsement etc.
  4. MERS cannot acquire rights to foreclose unless it acquires a REAL financial interest
    1. In a non-judicial state
    2. In a judicial state
  5. MERS’ Appearance on ANY instrument in the securitization chain clouds the homeowner’s title by extension of the reasoning set forth in the case decision reported below.
    1. MERS’ appearance on the deed of trust renders the mortgage deed or deed of trust invalid
    2. MERS’ appearance on the deed of trust renders the mortgage deed or deed of trust VOID
      1. This means there is no security instrument even if the obligation is still outstanding
      2. This means there is no security instrument even if the note is still outstanding
      3. This means the obligation arising from the funding of the “loan” or”security” to or for the benefit of the homeowner is UNSECURED.
      4. This means that there is no legal procedure to take property — real or personal, tangible or intangible — by virtue of using non-judicial procedure or judicial procedure — unless the creditor (i.e. — the one who advanced actual cash for the funding of the obligation) gets a money judgment against the homeowner — a process which by definition requires the creditor to use exclusively judicial procedures in which they must
        1. A Lawsuit properly served
        2. Allegations that if taken as true would entitle the creditor to a money judgment (e.g. “I gave money for the benefit of this homeowner and I never got the money back from anyone”). By the way this debt, even if they get ajudgment, is dischargeable in bankruptcy.
        3. Attachments to the lawsuit of ALL documents that conform to the allegations
        4. Your Defenses, affirmative Defenses and Counterclaims
        5. Discovery on both sides:
          1. Interrogatories — how they know, what they know, who they know, where did the person signing the interrogatories get their information — when were they hired, by whom, when did they work for MERS, how many paychecks did they get from MERS etc., what documents do they rely upon, what do THEY call those documents, where are those documents, who has them, what is the title of that person, by whom are they employed, what’s their telephone number address etc.
          2. Investigation: on any (AND ALL) signature follow the lead of one of our lead homeowners — find a mortgage or other document filed in the county recorders office and see if the signature matched the one in which they signed, notarized, or witnessed.
          3. Who prepared their website. Where is the source code? Who has the current source code, the prior source codes and any source codes or emails with meta data that will enable you to determine what parties were involved in the preparation of the website, where MERS, for example, advertises that you can use their name but they will never make a claim against the property or for the money.
          4. Request to produce using their answers to interrogatories
          5. Subpoena Third Parties for records with option to give you copies
          6. Request for admissions: VERY POWERFUL weapon when used properly
          7. Notice of deposition
          8. Request for access to their network servers and workstations for forensic examination
          9. Notice of deposition from the people identified in their answers to interrogatories
          10. Motions to compel
          11. Motions for Contempt
          12. Motions to Strike MERS pleadings
          13. Motions to Strike the pretender lender’s pleadings
          14. Motion to enter default after judge orders pleadings struck
          15. Motion to enter default final judgment
          16. Motion for Summary Judgment on your counterclaims including quiet title, money damages for violations of TILA, RESPA, SEC, etc.
          17. Recording final judgment in recorder’s office
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