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MISSION STATEMENT: I believe that the mortgage crisis has produced manifest evil and injustice in our society. I believe our recovery will never reach the majority of struggling Americans until we restore equal protection for all citizens and especially borrowers in our debt-ridden society. LivingLies is the vehicle for a collaborative movement to provide homeowners with sufficient resources to combat bloated banks who are flooding the political market with money. We provide thousands of pages of free forms, articles and discussion of statutes, case precedent and policy on this site. And we provide paid services, books and products that enable us to maintain an infrastructure to provide a voice to the victims of Wall Street corruption.

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RECOMMENDED READING:

CHAIN OF TITLE by David Dayen. Available on Amazon

LISTEN LIBERALS! by Thomas Frank. Available on Amazon and Kindle.

Pretender Lenders: How Tablefunding and Securitization Go Hand in Hand” By William Paatalo and Kimberly Cromwell. CLICK: http://infotofightforeclosure.com/tools-store/ebooks-and-services/?ap_id_102

California Supreme Court Rules in Yvanova, “The borrower owes money NOT TO THE WORLD at large but to a particular person or institution.”

Yvanova v New Century Mortgage 02182016 Supreme Court of California opinion

By William Hudson

Last week the California Supreme Court ruled in Yvanova v. New Century Mortgage Corporation (Case No. S218973, Cal. Sup. Ct. February 18, 2016) that homeowners have standing to challenge a note assignment in an action for wrongful foreclosure on the grounds that the assignment is void. Obviously if the court had ruled differently, the banks would have had absolute carte blanche to forge mortgage assignments with wild abandon. In fact, without a system of endorsements and assignments it would be almost impossible to determine what party has a legitimate interest in a property and chaos would have ensued (sound familiar?).

 
The Yvanova ruling puts to rest the prior assumption by most California courts that a homeowner lacks standing to challenge a void assignment. This decision has the potential to open the litigation floodgates by borrowers who were improperly foreclosed on due to fraudulent or improper assignments. In fact, you can bet that homeowners who lost their homes due to the court’s resistance to follow established law will be filing suit.

 
In Yvanova, she complained that the bank had resorted to the use of fraudulent documents in order to foreclose. First she identified that a bankrupt entity called New Century assigned a deed of trust years after the company ceased to exist. The mortgage assignments demonstrated that even though New Century was dissolved in 2008, New Century allegedly assigned Yvanova’s deed of trust to Deutsche bank in 2011. It was also discovered that Yvanova’s note could not have been delivered to the Morgan Stanley trust pool because the trust had a cutoff date of January 2007. Deutsche Bank, the servicer, claims to have transferred the deed of trust to that pool in December 2011. Thus, 3 years and 11 months after the trust had closed.

 
By law, and to ensure tax-free pass-through status by the REMIC (Real Estate Mortgage Investment Conduit) notes placed in trusts must be placed into the pool by a certain date. The Morgan Stanley trust had a cutoff date of January 2007 but Deutsche Bank claims the note they received by a zombie assignment was placed in the pool in 2011. Thus, a nonexistent company called New Century transferred a note to a closed trust.

 
Up until Yvanova was settled, the California courts rejected hundreds of similar claims over the years stating that borrowers were not a party to or holder of the debt (see Jenkins f. JP Morgan Chase). The California courts essentially ruled that homeowners may now challenge wrongful foreclosures on the grounds that the assignment of the note was invalid or the chain of assignment was faulty. In securitized trusts, it is fairly common for the endorsements and assignments to be either inaccurate or downright fraudulent (photoshopped, robosigned, etc.). The big securitizing banks like Ocwen, Deutsche, Morgan Stanley and Wells Fargo better prepare for a tsunami of wrongful foreclosure suits in California.

 
The California Supreme Court, by ruling in favor of Yvanova, effectively confirmed the 2013 California Appellate ruling Glaski v. Bank of America, which held that a homeowner facing a non-judicial foreclosure has standing to challenge violations of the pooling and servicing agreement. One of the most insightful quotes in Yvanova states, “The borrower owes money not to the world at large but to a particular person or institution, and only the person or institution entitled to payment may enforce the debt by foreclosing on the security.”

 

The California Supreme Court got it right when they elaborated that, “A homeowner who has been foreclosed on by one with no right to do so has suffered an injurious invasion of his or her legal rights at the foreclosing entity’s hands. No more is required for standing to sue.” Could it be that the California courts are tired of the 9 years of fraudulent banking games that have clogged the court system with no end in sight?

 
It wasn’t the homeowner who got sloppy, greedy and decided to start forging and photoshopping legal documents. It was the banks that engineered this complete fiasco from the top to bottom. Maybe now the banks will clean up their act, or they will be forced to find a more efficient and convincing way to forge and falsify endorsements and assignments. To date, the left hand doesn’t know what the right hand is doing- and the banks only hope that the homeowner doesn’t discover their deception.

 
I will reiterate again, if a bank claims to own a debt then why not simply show the documentation and prove it? This entire mess could be cleaned up very quickly if the banks would simply show the court evidence of ownership- but the courts know the banks don’t have it. By now we know that this entire debacle was engineered under the premise of plausible deniability and the screws are coming loose.
It is evident that the courts have had enough. The Supreme Court in Yvanova stated that:

 

“… California borrowers whose loans are secured by a deed of trust with a power of sale may suffer foreclosure without judicial process and thus ―would be deprived of a means to assert [their] legal protections if not permitted to challenge the foreclosing entity‘s authority through an action for wrongful foreclosure. (Culhane, supra, 708 F.3d at p. 290.)

A borrower therefore ―has standing to challenge the assignment of a mortgage on her home to the extent that such a challenge is necessary to contest a foreclosing entity‘s status qua mortgagee‖ (id. at p. 291)— that is, as the current holder of the beneficial interest under the deed of trust.”
The decision goes on to state that:

 

“In seeking a finding that an assignment agreement was void, therefore, a plaintiff in Yvanova‘s position is not asserting the interests of parties to the assignment; she is asserting her own interest in limiting foreclosure on her property to those with legal authority to order a foreclosure sale. This, then, is not a situation in which standing to sue is lacking because its ―sole object . . . is to settle rights of third persons who are not parties. (Golden Gate Bridge etc. Dist. v. Felt (1931) 214 Cal. 308, 316.)”

Apparently the California Supreme Court just grew a pair and the remaining 49 states might want to listen up. With all of the fraud settlements that have occurred over the past seven years, it is evident that what is occurring isn’t simply sloppy paperwork or unintentional oversight but blatant fraud, theft and criminal conspiracy if you want to be honest. It is a sad day in America when a homeowner must go all the way to the Supreme Court in order to obtain a fair and just ruling. If the courts had ruled in favor of the banks (and I am sure the judges in Yvanova knew what was on the line), there is no doubt in my mind that banks would have had a foreclosure feeding frenzy.

The court states the obvious, that there is an investor or entity who may suffer an unauthorized loss of its interest in the note if the foreclosure proceeds, “when an invalid transfer of a note and deed of trust leads to foreclosure by an unauthorized party, the ―victim‖ is not the borrower, whose obligations under the note are unaffected by the transfer, but ―an individual or entity that believes it has a present beneficial interest in the promissory note and may suffer the unauthorized loss of its interest in the note.”

And finally, the court gets to the meat of the matter- the issue of standing. “As it relates to standing, we disagree with defendants’ analysis of prejudice from an illegal foreclosure. A foreclosed-upon borrower clearly meets the general standard for standing to sue by showing an invasion of his or her legally protected interests (Angelucci v. Century Supper Club (2007) 41 Cal.4th 160, 175)—the borrower has lost ownership to the home in an allegedly illegal trustee‘s sale. (See Culhane, supra, 708 F.3d at p. 289 [foreclosed-upon borrower has sufficient personal stake in action against foreclosing entity to meet federal standing requirement].)  Moreover, the bank or other entity that ordered the foreclosure would not have done so absent the allegedly void assignment. Thus- [t]he identified harm—the foreclosure—can be traced directly to [the foreclosing entity‘s] exercise of the authority purportedly delegated by the assignment.”

In conclusion, the court clarifies who is allowed to enforce the note without showing overt favoritism to the bank. Please note the eloquence of the last line in this paragraph in the Yvanova decision:

“Nor is it correct that the borrower has no cognizable interest in the identity of the party enforcing his or her debt. Though the borrower is not entitled to object to an assignment of the promissory note, he or she is obligated to pay the debt, or suffer loss of the security, only to a person or entity that has actually been assigned the debt. (See Cockerell v. Title Ins. & Trust Co., supra, 42 Cal.2d at p. 292 [party claiming under an assignment must prove fact of assignment].) The borrower owes money not to the world at large but to a particular person or institution, and only the person or institution entitled to payment may enforce the debt by foreclosing on the security.

Again, “The borrower owes money NOT TO THE WORLD at large but to a particular person or institution, and ONLY the person or institution entitled to payment may enforce the debt by foreclosing on the security.” The court isn’t magically creating case law- this is exactly what the promissory note entitles the bearer to do- collect on a debt. The note does not say, “If you have a forged document you randomly printed a copy off the internet or photoshopped- you have standing.”

Only the individual or entity with actual STANDING can foreclose on a home. The fact that the homeowner defaulted on an alleged contract (that probably didn’t happen the way the contract reflects the transaction) doesn’t mean any party claiming to be a note holder can foreclose on the home. Like Jerry McGuire said, “SHOW ME THE MONEY.” Until the mortgagee shows up with actual evidence of ownership- no servicer, “lender” or unknown party should be able to randomly foreclose on a home simply by saying they own the note.

Again, this is the beauty of rescission. By precluding the servicer from walking into court with a forged note, mortgage and alleged contract- and forcing this party to demonstrate contractual standing- many fraudulent foreclosures would be prevented. It is tragic that so many people have lost their homes because the courts permitted a pretend lender with no standing to waltz in and take a home simply by showing fraudulent documents and making false claims.

Finally, the Yvanova ruling leaves us with the crowning glory of this decision, “A homeowner who has been foreclosed on by one with no right to do so has suffered an injurious invasion of his or her legal rights at the foreclosing entity‘s hands. No more is required for standing to sue.” Thank you California Supreme Court justices for ruling according to law instead of the banking lobby.

Banks Targeting LivingLies?

There is an old expression which I may have used on this site before says “you know that you are over the target when you start getting flack.”

In a variety of ways, we have uncovered a number of strategies being employed by the large banks on Wall Street directed at discrediting the discussion on this blog and making it as difficult as possible for us to do business. One of the ways that they do this is by planting articles in various periodicals which make it seem as though the housing crisis is behind us and that the banks are doing everything possible to alleviate the suffering of homeowners who are under the gun of wrongful foreclosures that amount to nothing less than outright theft.

Another way they do it is by posting “comments” on the blog that are designed to take up a lot of space and interfere in serious discussion between the readers. The latest round of spamming from the banks has been pointed out to us by a reader and the way that we are handling this is by eliminating the comments from those people who are clearly interfering in intelligent conversation and bona fide research that appears in the comment section in each blog article. To those whom we suspect are paid spammers from the banks, we are sending the following email:

“We received numerous complaints from other followers of the blog  regarding comments that you have posted. We are now blocking any comments from you and we will be watching for any variations used by you to post comments that are designed to confuse and chase people away from the blog. We are very much aware of the effort of banks to interfere with our operations and we must be extremely careful to stop any activity on the site that appears to be spawned by people who are paid by the banks to discredit the blog. If you wish to appeal this decision please send an email to NeilfGarfield@Hotmail.com.”

As for the attempts to interfere in our business I will not give any details here nor will I state how we are staying one step ahead of the banks who would like to see the blog taken down in the business destroyed. I am no stranger to fighting with these banks. And they are no stranger to losing the fight when the issues finally appear on the radar screen.

For my part I will continue to provide increasing depth, suggestions, strategies and tactics for lawyers to use against these banks. There is no doubt in my mind that these banks will eventually fall despite all attempts by government and central bankers to create the illusion of strength when in fact both the financial condition of the banks and the financial condition of the economy continued to be bankrupt beyond repair.

There is only so far that you can kick the can down the road. Now that I have so much company in this effort in the form of attorneys, government officials, and pro se litigants, it can be fairly said that my efforts have spawned  a cottage industry in which these banks will find themselves the target as real people represented by real lawyers seek money damages and other relief. The outcome of this is very clear to me. There are many economists who have seen and recently made comments based upon their analysis of government issued economic statistics; in particular there are concerned that financial services was at equilibrium with the rest of the economy when it accounted for only 16% of economic activity.

Now at a time when unemployment and underemployment combined with those people who have given up completely may have reached an all-time high, it is apparent to those economists that the alleged growth of our gross domestic product is in large measure due to our willingness to treat the trading of worthless paper as economic activity. The proof is in the pudding. The only way we can say that our gross domestic product is improving at a low rate of 2.5% is by ignoring the fiction of economic activity in the financial sector.

Financial services are now counted in gross domestic product at around 48% versus the 16% when financial services were at equilibrium with the volume of actual production of products and delivery of services. While unemployment grows and while wages continue to stagnate and even decline, we invite a social catastrophe caused by graphic economic inequality supported by fictitious numbers and arrogant policies controlled by those who have received the largest benefit from the largest crime in human history.

Thus the question being answered by this blog and others like it is how long we will listen to government statistics showing an increase in economic activity of 2.5% which is a complete illusion, and when will we start acting on the fact that comparable economic activity has declined by 32%. Think about it.

And by the way, those people who think that they can earn easy money by acting on behalf of the banks should realize that they are extremely expendable and will definitely be thrown under the bus once the plan of action has been disclosed. To the extent that you have any written confirmation of instructions from the banks as to how to interfere with this blog and other discussion sites, I suggest you make copies and have them distributed in different geographic locations. Otherwise, in the event of a lawsuit for interference in our contractual relations with customers and prospective customers, you might end up being the lead defendant.

 

I’m Back

Thanks once again to all those who wished me well. Your wishes worked. Publication of articles will resume as early as today. I was released from the Hospital on Saturday night and I am well on the way to being mended.

As an aside and without going into details if anyone is taking or has taken the injectable drug Victoza (for Type 2 Diabetes) and has experienced symptoms uncharacteristic of their health profile I ask that you send me an email at neilfgarfield@hotmail.com. Anyone taking that drug should consult with their physician after reviewing (Google it) the side effects.

LIVINGLIES NEWSLETTER PROVIDES MORE STRATEGIC INFO

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SUBSCRIBE TO LIVINGLIES FOR DISCOUNTED SERVICES, NEWSLETTER AND FREE TELECONFERENCES

A lot of people are signing up for the newsletter. More than I imagined would do so. I found out quickly why. They were looking for strategies that drilled down more deeply into their cases. And they liked the teleconferences that go with it. The discounts on services were welcomed but it was the latest and best info I could give on what is working and what isn’t that they were looking for. It all comes down to what Beth Findsen, Esq. (Scottsdale) is fond of saying “You can be right as rain on the law but if the Judge won’t apply it, you lose!” Jon Lindeman, Esq. (South and Central Florida), with his military background, has impressed on me the need to concentrate our firepower on the areas we can identify as their vulnerabilities and press the point to win, not justify a fee. April Charney, Esq. (Jacksonville) has criticized my work as spawning some bad results and she has a point.

As you can imagine, some of my regular readers are not necessarily singing from the same prayer book as I am. They just want a preview of the song so they can confront anyone who uses the information with an answer. I really don’t have any problem with the opposition reading my material nor with them “preparing” to meet us in the battlefield we call court. The problem I have is that many homeowners and their lawyers are making bad law by misapplication of the suggestions contained on this website. It’s not that the pretender lenders are beating these homeowners and lawyers, it’s that these homeowners and lawyers are beating themselves by presenting this work as some kind of magic bullet. The Judge makes a not unreasonable assessment of their argument as complete crap and then goes on to assume that anyone else who sounds similar is also full of crap. This is making it more difficult for everyone. So what to do?

My answer is to migrate strategy and tactics to the newsletter and leave the general stuff on the blog. By charging a monthly fee, we hope to weed out those people looking for a quick fix and who are making it harder on everyone else. So I might have hints in the blog, but I won’t get into the details except in the newsletter, which will really focus on the prime strategies and tactics that show promise. Assuming I continue to get the support of subscribers on this, I will get into the down and dirty details as much as possible in the newsletter. It’s more work for me but worth it if we get the result of more lawyers and homeowners getting better results. By combining this with members only teleconferences, we know who is listening, and we have an opportunity for everyone to go out with the same message instead of variations on the message that might not make any sense to a Judge.

So this is another step in forming the movement, and concentrating our firepower. The hope is that we are creating the eye of the hurricane where all the action happens. By funneling the general information into direct strategies that are being used in common, and narrowing the focus even further by collaborating with investigation, discovery and motions (Title and Securitization Searches, Expert Witness Declarations, Affidavits etc), we hope to level the playing field. Remember they have the resources and the motivation to collaborate and they do with nationwide telephone conferences and shared research and strategies. It is up to us to do the same thing on our side. We have 20 million or more homeowners who are affected including those who think they lost their home but still have a right to reclaim title and possession. It seems to me that we have more than enough potential to level the playing the field and then some.

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