Tonight! How to Defend Against a Claim of “Holder” Status to Discredit Standing

“Holder” vs “Agency”

Thursdays LIVE! Click in to the The Neil Garfield Show

Or call in at (347) 850-1260, 6pm Eastern Thursdays

Tonight I will discuss the central point of of false claims of authority to enforce the note, and inferentially the authority to enforce the mortgage.

In 2008, I called to confront a lawyer about the false claim of being authorized to enforce the note and mortgage, his reply to all my questions was “We’re a holder.”

No matter what I said or asked, that was his answer. He was relying upon a carefully thought out strategy of taking the term “holder” and stretching it to unimaginable lengths. And in that conversation it became clear that he — and the rest of the investment banking industry — were essentially “banking” on a single fact, to wit: that Judges are lawyers who went to law school and for the most part slept through classes on negotiable instruments. He was right.

TONIGHT! Aggregation and Assignments on the Neil Garfield Show

Are Assignments Based Upon Aggregated Pools Real?

Thursdays LIVE! Click in to the The Neil Garfield Show

Or call in at (347) 850-1260, 6pm Eastern Thursdays

East-West: Charles Marshall California Attorney co-hosts the discussion

 

The bottom line is that the courts are not accepting denials of assertions or allegations by the foreclosing party. The courts are requiring the homeowner to file an affirmative defense rather than simply denying everything in the complaint. This forces the burden of proof and burden of persuasion onto the homeowner to come up with facts supporting their denial. These facts are within the sole care, custody and control of the party initiating foreclosure.

Through the magic of writing things down on paper anyone can make anything seem like it might be real. Of course in the legal system it goes further than that. If it is written there are many assumptions and presumptions that arise simply because a piece of paper was produced with some writing on it. But nobody ever intended such writing to be used in lieu of facts that are contrary to the truth.

The first place you see this scheme in operation is in the supposed aggregation of loans. The truth is that the DATA for the loans was aggregated, which only means that information ABOUT the supposed loans was taken from several spreadsheets and combined into one.

This is done all the time when a PROPOSED deal is in the works. The aggregation of the data is known as a pro forma presentation — with all parties knowing that it isn’t real, but here is what it might look like if we really did it.

The banks have elevated pro forma spreadsheets into the illusion of actual deals. The reason nobody has ever come up with a money trail showing that the aggregation took place and was sold to a trust is that no such money trail exists.

The truth is that no actual aggregation took place and there was no sale to the trust. In fact probing the trusts, there is never a time that the trust is actually created by entrusting money or property to the named Trustee. Without that there is no Trust because nothing is held “in trust.”

The money from investors is never held by the Trustee. The loan debt is never owned by the Trustee or the Trust. There is no sale. And that is because the Broker Dealers funded the loans in the first place using the money of investors.

So there was nobody to pay for purchase of the underlying debt except the investors and the banks certainly were not going to pay for the underlying debt by handing the investors a check or wire transfer.

How did they do it? Through the illusion of Assignments and endorsements by entities and people who have no ownership interests or other rights to the underlying debt. Even servicing relies upon authority from a trust that does not exist and which neither owns the paper nor the underlying debt.

Let’s go back to the beginning. For ANY deal to be legally binding you need the following elements:

  1. An offer of terms by A to B.
  2. Acceptance of those exact terms by B.
  3. Now you have an agreement but not a contract (yet).
  4. Memorialization of the contract in writing.
  5. The contract is not enforceable until the parties sign
  6. The Closing: Reciprocal consideration is exchanged.
  7. Now you have an enforceable contract.

The only thing we get with assignments and endorsements on supposed “allonges” is #4 — Memorialization in Writing. There is no evidence or even assertion that any of the other things happened. Hence the foreclosing party is using an unenforceable false memorialization of a transaction (transfer of loan paper and no transfer of the underlying debt) that never occurred in order to create the illusion of a foreclosure by a real party in interest.

This is all basic Black Letter law. Yet the courts have routinely ignored several very specific laws governing loans, notes, mortgages and assignments and endorsements. Judges have routinely assumed and even presumed that the paper memorialization was all they needed. The door to moral decay and hazard was opened wide. And we all experienced the shock of seeing our economy nearly turn on its belly.

Now Congress is in the process of rolling back the safeguards so that the investment banks can return to business as usual — transforming the role of banks from being financial intermediaries into some multi-headed hybrid creature that can steal money and homes. The banks can do this by using ordinary deposits by its customers, or by soliciting new deposits with the false promise that the money is actually going into a Trust where a big name bank like US Bank will watch over it.

How do you stop it? By litigating on the strategy and narrative that there is no meat in the sandwich, no deal that ever occurred in real life and no authorized intermediary whose claim is solely based upon the existence of a nonexistent trust and nonexistent transactions in which the underlying debt was bought and sold.

 

Now Playing! 6pm Eastern! The West Coast Foreclosure Show with Charles Marshall: Sanctions & Motions directed at the Litigant and/or their Attorney

Charles Marshall Logo Southern California

Thursdays LIVE! Click in to the The Neil Garfield Show

Or call in at (347) 850-1260, 6pm Eastern Thursdays

This edition of the West Coast Foreclosure Hour features California attorney Charles Marshall who will address sanctions and motions directed at you as litigant and/or your attorney including:

 – removing lis pendens;

– supposed failure to respond properly to discovery;

– maintaining a ‘frivolous’ lawsuit, such as where there has been a possible res judicata issue

Charles Marshall who specializes in wrongful foreclosure, will discuss why homeowners should reconsider taking their foreclosure attorney to the Bar and the potential ramifications for you as a litigant or would be litigant.  He will cover why doing so can result in a decision that can hurt all homeowners and others trying to take on the Big Banks.

Charles Marshall serves the state of California.  Please contact him to discuss your foreclosure issue:

Charles Marshall, Esq.

Law Office of Charles T. Marshall

415 Laurel St., #405

San Diego, CA 92101

cmarshall@marshallestatelaw.com

Phone 619.807.2628

The West Coast Foreclosure Show with Charles Marshall: The Power of FOIA requests to uncover Foreclosure Data with Eric Mains

Thursdays LIVE! Click in to the The Neil Garfield Show

Or call in at (347) 850-1260, 6pm Eastern Thursdays

Tonight Southern California attorney Charles Marshall will host the new West Coast Radio Show with Attorney Charles Marshall with guest Eric Mains, former FDIC Team Leader.

The West Coast Radio Show will run the first and third Thursday of each month, while Neil Garfield will continue to host the second and fourth Thursday.  This change will allow us to bring more relevant foreclosure news from both Coasts, and in-between.

Neil Garfield has been working diligently on his technological platform that he hopes will empower both attorneys and pro se litigants facing foreclosure to access automated court documents.  He will also publish his latest foreclosure defense book in the Fall.

This episode features Eric Mains, a former FDIC Team Leader who resigned when he discovered the federal government was unwilling to go after banks that were participating in illegal conduct.  Mains studied to be a lawyer, but ended up as a banker with large regional firms like PNC and National City. He was a vice president of special assets, dealing with commercial loans for multifamily housing units.  If anyone knows how this game is played it is Eric Mains.

For more information about Eric Mains and his foreclosure battle see Vice article here.

Eric Mains currently has a writ of cert that has been submitted to SCOTUS appealing a recent decision in his 7th circuit court of appeals case where the federal court ruled that it lacked jurisdiction to hear his case under the Rooker Feldman doctrine.  Eric is using the FOIA laws to obtain data in his own case. He was recently able to stop a sheriff’s sale on his own home just 5 hours after he issued a complaint to the Indiana State Attorney General’s office supported by an FOAI request submitted just weeks before.

The Power of FOIAs to uncover Foreclosure Data

By Eric Mains, former FDIC Team Leader

Read about Eric Mains here.

LPS Consent Judgement

In the fight for discovery of information related to wrongful foreclosure actions, many attorneys and consumers find that they run into a gamut of obstacles preventing them from garnering basic facts about what happened with their loan transactions. This ranges from the cost of trying to conduct discovery, willful non-disclosure by opposing parties, judges who either hinder needed discovery or bounce cases on motions to dismiss before discovery can be obtained, and of course, the often-heard objection from opposing counsel that items requested in discovery are somehow “privileged” or contain non-disclosable data.

Many cases are withdrawn or settled based solely on the impending threat of discovery actually being allowed by the few judges who side with homeowners to pursue the disclosure of relevant information in their cases.

While discovery in individual cases can be complex, burdensome, and costly, one simple and easy resource that can lead to potentially large benefits on a mass scale outside of traditional discovery is the use of Freedom of Information Act (FOIA) requests to seek data held by government institutions.

Many consumers and their attorneys may scoff and assume FOIA requests are not relevant to their individual cases, so why bother? There are a few reasons for bothering. First, depending on the players involved in your individual case, there may be data that is held by governmental agencies that can be obtained by FOIA requests more cheaply and easily than can be obtained otherwise, and who knows what you may find? It may be relevant to you, it may not, BUT don’t assume anything!

Second, the State agencies such as the Attorney General’s offices have already done the legwork of squeezing the servicers and obtaining potentially useful and relevant information for prosecuting offenders.  Why not use it if it’s there? There could be names, dates, and other data of use, and who knows where that information may lead or if it may become of use later.

Lastly, the information you uncover may not just save you, it may save someone else…and even if it doesn’t help you specifically, you may save hundreds of other people’s homes with the data you uncover. What if someone else a few months down the road doing a similar FOIA request/research uncovers data that saves you? This goes to a “crowd funding” concept of data mining…but more on that in a bit.

While it is true that the federal government has been inclined to do everything in its power to try and block documentation related to large bank misconduct and settlements it has reached with national banks, not all useful and relevant information is held solely by federal agencies or regulators.

In the case of mortgage loan servicers, such as Ocwen, LPS/Black Knight, Green Tree, Caliber, etc., State AG’s were also very active in litigation that reached various settlements. Unlike federal entities, State entities who have data relevant to wrongful actions committed against consumers may not be as tight lipped, or as able and willing to avoid the release of information under their various FOIA/Open Records statutes. A good list of the various State FOIA laws can be found at this website: http://www.nfoic.org/state-freedom-of-information-laws .

The good news is that with a little detective work, if relevant information is suspected to be held by any of your state governmental agencies, a simple fax/letter you can send for a few dollars requesting said information is all that it takes to get the ball rolling. Most turn around periods for a response on such requests is around 30 days.

So, what if they refuse to release the records you request citing various privileges? What if they say they only can release a few of the records?  Without going into long detail, just the response from the agency in and of itself may confirm that they do indeed hold suspected information of use to yourself (or other homeowners) whether they are willing to release the records or not. Even a partial release of records from the governmental agency involved may leave a bread crumb trail leading to other records that may become useful. If an agency does unlawfully or unreasonably withhold records, it may turn out that going to court to force release of the relevant records receives a much more consumer friendly response under FOIA laws as well.

Another potentially beneficial side effect- the results of the FOIA may also get the attention of local news agencies/other consumer advocacy groups if brought to their attiention. Nothing garners attention like smoke, and other interested parties may be inclined to file FOIA request of their own when they find out that there appears to be something…. some records, some data, that appears to be inherently newsworthy and publicly disclosable…but that it is being unreasonably withheld for some strange reason…..hmmmmm. If it’s one thing banks and uncooperative political entities are afraid of, it’s the nations true highest court–that of public opinion and its instantly damaging spotlight.

One last point to remember is that in an age of crowd sourcing, crowd funding, and social media driven group campaigns, something as cheap and powerful as a mass group FOIA campaign to release and share information should be central in helping to fight against wrongful foreclosures. The banks and servicers are unendingly willing to go into court and lie and produce false documentation, while the courts turn a blind eye most times…. but keeping up a lie and producing false documents leaves a trail, and it’s a hundred times harder to keep up a lie and cover for it than to simply be armed with facts and the truth.

Things start to slip, documents come out, and the next thing you know you have a smoking gun and evidence of mass fraud that can’t be ignored or denied. The simple truth of the matter is we don’t know where some of the breadcrumbs discovered in FOIA requests might lead, or how they might help us all. There are plenty of angry consumers willing to yell at TV sets, send out angry Tweets or join blog communities, but not many that are willing to invest time in actually doing something that has potential mass benefit and a real potential impact. FOIA requests are one way to do that cheaply and effectively, and it FORCES the governmental agency involved to respond to YOUR demand, usually for under $5 on your end. Where else can you get that kind of bang for your buck in an age of unaccountable government, media, and courts?

The Neil Garfield Show LIVE at 6 pm Eastern Today! Call us with your foreclosure Questions!

Thursdays LIVE! Click in to the The Neil Garfield Show

Or call in at (347) 850-1260, 6pm Eastern Thursdays

MAIN NUMBER: 202-838-NEIL (6345).

Question and Answer Session  Live at 6 pm

During this episode Neil Garfield and California Attorney Charles Marshall take your questions.

This is a relatively short Q&A program lasting only 45 minutes. It is not an interview. Long narratives preceding the question only takes time away from others that have questions. Your questions should take the form of the following SHORT examples:

  • I just received a notice of default. What are my options?
  • Nobody will answer the questions in my QWR or DVL. What do I do now?
  • The bank is moving for summary judgment. What should I do?
  • Would an accountant be able to show that I wasn’t in default?
  • Why is it that I can sue for damages under Yvanova for wrongful foreclosure based upon a void assignment but I can’t sue for permanent introduction to stop them from using the void assignment?
  • Who is really in charge of all this fabrication and forgery of void instruments? 
  • Are any courts accepting TILA rescission as law?

This episode will also address what stops a foreclosure including TROs and preliminary injunctions, as well as obtaining a Lis Pendens through a mortgage-related lawsuit.

Charles Marshall, Esq.

Law Offices of Charles T. Marshall

415 Laurel St., #405

San Diego, CA 92101

cmarshall@marshallestatelaw.com

Phone 619.807.2628

 

Notice: This is a discussion about foreclosure and is not legal advice.  Please consult with a local attorney.

 

 

 

 

 

 

 

https://www.vcita.com/v/lendinglies to schedule, leave message or make payments.

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

The Neil Garfield Show: Challenge your Mortgage Servicer and Successors- Overcoming Legal Presumptions

Thursday Rebroadcast! Click in to the The Neil Garfield Show

Or call in at (347) 850-1260, 6pm Eastern Thursdays

NEW MAIN NUMBER: 202-838-NEIL (6345).

Tonight’s show is a rebroadcast from June 23, 2016.  The episode is still extremely relevant to fighting fraudulent foreclosure.

Neil Garfield and southern California attorney Charles Marshall discuss the recent Massachussetts case US Bank v. Bolling.  For years legal presumptions attached to “facially valid” documents and the banks and servicers were able to argue through their sham surrogates (“successors”) that any inquiry beyond the paper trail was irrelevant because the the issue had already been decided in the early motions of the case wherein those legal presumptions were used to sustain the implied perspective of the banks, servicers, and their surrogate successors. The tide has changed.

Charles Marshall, Esq. attorney in Northern California joins us again as the featured attorney. Charles has been a long time supporter of the livinglies blog and has contributed to the analysis and strategies that are reported on the blog. He has exceptional critical thinking skills and the ability to understand the strategic winds that are blowing. Things are changing rapidly. We’ll be talking about Yvanova, Keshtgar, Lundy, TILA Rescission and current trends.

Charles Marshall

Law Offices of Charles T. Marshall

415 Laurel St., #405

San Diego, CA 92101

cmarshall@marshallestatelaw.com

Phone 619.723.7071

Fax 866.575.7413

Get a Consult!

https://www.vcita.com/v/lendinglies to schedule, leave message or make payments.

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

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