“Get three months behind and you’ll get a modification”: The Big Lie That Servicers and Banks are Still Using

The bottom line is that millions of people have been told that line and most of them stopped paying for three months because of it. It was perfectly reasonable for them to believe that they had just been told by the creditor that they must stop paying if they want relief. Judges have heard this repeatedly from homeowners. So what is the real reason such obvious bank behavior is overlooked?

More to the point — what choice does the homeowner have other than believing what they just heard from an apparently authorized service representative?

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

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In the course of the last ten years I have personally interviewed homeowners, reviewed the documents and or received reports from homeowners that were duped into going to default by that famous line: “You must be three months behind.” It is patently true that every homeowner who had that conversation believed that they were being told to stop making payments. No, it didn’t make any sense; but it also was beyond comprehension that the servicers were in fact aiming at foreclosure instead of workouts that would have preserved the value of the alleged loan, and mitigated the rush into the worst recession seen in modern times.

On cross examination the point is always made that the “representative” did not use the words “Stop paying.” And thus the point is made that the announcement that a three month delinquency was necessary for a modification was simply that: just information. Yet the behavior of millions of homeowners shows that virtually every one of them believed they were told to stop paying in “code” language. If that is not reasonable reliance, I don’t know what is.

However there is much bigger point. The three month announcement was (a) false and (b) an intentional policy to lure people into default and foreclosure. It has been previously reported here and elsewhere that an officer at Bank of America said point blank to his employees “We are in the foreclosure business, not the modification business.”

The legal point here is (a) unclean hands and (b) estoppel. In most cases homeowners ended up withholding three months worth of payments, as they reasonably believed they had been instructed to do, many times faithfully paying on a three month trial or “forbearance” plan, and sometimes even paying for many months beyond the “trial” period, or even years. Then suddenly the servicer/bank stops accepting payments and won’t respond to calls and letters from the homeowners asking what is going on.

Then they get a notice of default, a notice of their right to reinstate if they pay a certain sum (which is most often miscalculated) and then they get served with a foreclosure notice. The entire plan was aimed at foreclosure. And now, thanks to recent court doctrine, homeowners are stuck with intensely complicated instruments and behavior, only to find out that despite all law to the contrary, “caveat emptor” (Let the buyer beware).

The trick has always been to make the non-payment period as long as possible so that (1) reinstatement is impossible for the homeowner and (2) to increase the value of servicer advances. Each month the homeowner does not make a payment the value of fraudulent claims for “servicer advances” goes up. And THAT is the reason why you see cases going on for 10 years and more. every month you miss a payment, the Master Servicer increases its claims on the final proceeds of liquidation of the home.

In the banking world it is axiomatic that a loan “in distress” should be worked out with the borrower because that will be the most likely way to preserve the value of the loan. In every professional seminar I ever attended relating to residential and commercial loans the main part of the seminar was devoted to workouts, modification or settlement. We have had literally millions of such opportunities in which people were instead either lured into default or unjustly and fraudulently induced to drop their request for modification or to go into a “default” period that they thought was merely a waiting period before the modification was complete.

The result: asset values tanked: the alleged loan, the alleged MBS, and the value of the subject property was crushed by servicers looking out for their real boss — the Master Servicer and operating completely against the interests of the investors who are completely ignorant of what is really going on. Don’t kid yourself — US Bank and other alleged Trustees of REMIC Trusts have not taken a single action as Trustee ever and the REMIC Trust never existed, never was an active business (even during the 90 day period allowed), and the “Trust” was never administered by any Trust department of any of the banks who are claimed to be Trustees of the “REMIC Trust”. Both the Trust and the Trustee are window dressing as part of a larger illusion.

My opinion as a former investment banker, is that this is all about money. The “three month” announcement was meant to steer the homeowner from a HAMP modification, which was routinely “rejected by investor” (when no contact was ever made with the investor). This enabled the banks to “capture” (i.e., steal) the alleged loan using one of two means: (1) an “in-house” modification that in reality made the servicer the creditor instead of the investor whose money was actually in the deal and/or (2) a foreclosure and sale in which the servicer picked up all or nearly all of the proceeds by “recovery” of nonexistent servicer advances.

It isn’t that the investors did not receive money under the label of “servicer advances.” It is that the money investors received were neither advances nor were they paid by the servicer (same as the origination or acquisition of the loan which is “presumed” based upon fabricated, forged, robo-signed documents). There is no speculation required as to where the money came from or who had access to it. The prospectus and PSA combined make it quite clear that the investors can receive their own money back in satisfaction of the nonexistent obligation from a nonexistent REMIC Trust that issued worthless and fraudulent MBS but never was in business, nor was it ever intended to be in business.

Servicer advances can only be “recovered” when the property is liquidated. There is no right of recovery against the investors. But the nasty truth is that there is no right of “recovery” of servicer advances anyway because there is nothing to recover. By labeling money paid from a pool of investor money as “servicer advances” we again have the creation of an illusion. They make it look like the Master Servicer is advancing money when all they are doing is exercising control over the investors’ money.

Thus the three month announcement is a win win for the Master Servicer — either they convert the loan from being subject to claims by investors to an “in-house” loan, or they take the full value of the alleged loan and reduce it to zero by making false claims for recovery — but only if there is a foreclosure sale. Either way the investor gets screwed and so does the homeowner both of whom were pawns and victims in an epic fraud.

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Rescissions and Preemptive Lawsuits by Borrowers — 2 Things the Courts Dislike the Most.

For short-term results it is absolutely essential that discovery be pressed as hard as possible and that attorneys prep for a punishing cross examination of the corporate representative of the company claiming to be the servicer for the company that claims to be the trustee or successor for a trust that by implication claims to own the loan but won’t allege that. Layers upon layers.

I have heard dozens of judges caution the “banks” that they better show up with someone who doesn’t need to place a call or wait to get authorization. But that is exactly what they do.

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Listen to Attorneys Neil Garfield and James Randy Ackley discuss this issue:

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

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Based upon reports coming in across the country it appears that we are actually receding from the application of law again. The two things that the Courts obviously don’t like and essentially refuse to enforce are preemptive lawsuits and TILA Rescission, even where they give it lip service approval. What are now known as preemptive lawsuits in which the borrower tries to head off their title and collections problem by demanding the real data on identification of a creditor who owns the debt, note and mortgage or deed of trust are a bridge too far although California looks like it is edging toward that the fastest amongst the states. See Yvanova decision

In both cases the Courts are grasping at straws because of the fear of undermining the entire banking system causing another financial collapse. As I did in 2008-2009 I am predicting that these cases will be decided in favor of the borrower. And again it might take more years to get there. Having examined pleadings and orders from across the country there is no doubt in my mind that everything we have said is true and these are useful tools for the borrower.

But for short-term results it is absolutely essential that discovery be pressed as hard as possible and that attorneys prep for a punishing cross examination of the corporate representative of the company claiming to be the servicer for the company that claims to be the trustee or successor for a trust that by implication claims to own the loan but won’t allege that. Layers upon layers.

In 2008 I had a conversation (previously reported) with one of the architects of this scheme and he predicted that the legal presumptions attached to the notes and mortgages and assignments would overcome any factual rebuttal regardless of how persuasive the rebuttal. I thought he was wrong. He was right, but back then I could tell he wasn’t as sure as he is today. It worked. Millions of foreclosures proceeded in favor of entities who had already stolen the money from investors and now were stealing their security.

Proof of all my basic premises is abundantly clear but well hidden by confidential settlements under seal. Cash offers to settle the case seem almost always to produce a settlement that includes damages for wrongful foreclosure.

Mediations continue to proceed almost exclusively with “representatives” who lack full settlement authority and truth to be told, they lack any settlement authority. This point is getting under the skin of many judges and should be pressed. I even said to one judge who ordered mediation that I questioned when his orders “meant anything at all.” He was upset but he started entering other orders that required real action by my opposition.

Mediations by definition under Supreme Court rules require the presence of the parties with full settlement authority. Instead the alleged servicer shows up with representative that has only one duty — handover an application for modification without any discussion or authority to settle. That is the stuff of motions for sanctions. I have heard dozens of judges caution the “banks” that they better show up with someone who doesn’t need to place a call or wait to get authorization. But that is exactly what they do and frequently they get away with it. Don’t expect sanctions to be ordered until the “bank” fails to “show up” more than twice.

Usually the attorney represents the servicer and if pressed, sometimes you can get an admission that the attorney is not able to assert they represent the plaintiff. The representative also might admit that he is there on behalf of the servicer but not the Plaintiff. In those cases I think you are well on your way to getting sanctions, but not until you are ordered back into mediation multiple times.

The problem remains the same — the servicer derives its alleged authority from the Plaintiff who derives its power to enforce from legal presumptions derived from possession and its declaration that it is the “holder.” The Plaintiff rarely alleges that it owns the debt, loaned the money or anything like that and they never allege that they are holders in due course which would mean, by definition, that the trust paid for the loan. The trusts did not pay for the loan and the creditor is, at least according to some live testimony I got in court, a group of unnamed investors. By definition then in hearings for sanctions relating to mediation, you can elicit admissions that defeat the foreclosure.

Once you get to the fact that the Trust never was in operation and was never funded it goes without saying that as an inactive business with no history it could not possibly have paid for the debt or even accepted the assignment. Having cut the chain (the hip bone is connected to the thigh bone etc) the strawman figure must collapse. NO authority flows from such an entity —especially when the representative says the creditors are the investors.

My prediction is that while it may still take some time, the courts are eventually going to routinely require real proof instead of relying exclusively upon legal presumptions arising from fabricated, forged, robo-signed documents. Real proof means real transactions — something that will unwind claims by the servicer and Trustee or successor like pulling a thread from a poorly made sweater.

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Chase Loses on Assignment and Assumption Argument with WAMU

A purchase and assumption agreement was not enough to prove JPMorgan Chase Bank N.A.’s legal standing in a foreclosure case before the Fourth District Court of Appeal.
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THE FOLLOWING ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.

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see http://www.dailybusinessreview.com/law-news/id=1202753997800/JPMorgan-Chase-Loses-Foreclosure-Case-After-5-Debt-Sales?mcode=1202617860989&curindex=2&slreturn=20160315114531

Congrats to Attorney Ricardo Corona, Esq., the one who won this case.

On the road today.

I just wanted to point out that what I had testified 8 years ago in a class action is pretty much well-settled now, despite the nagging naysayers that always emerge when confronted with an observation that conflicts with their assumptions. WAMU originated around $1 trillion in loans. Any cursory overview of their financial statements would show that they could not possibly have loaned even a substantial fraction of that amount. It follows that all of them were pre-funded through conduits of conduits who were illegally using investor money obtained under false pretenses.

For most of the loans, therefore, WAMU never owned them because they were never the lender. The rest were “sold” (without ever receiving one cent of consideration) into the secondary market where they were subject to false claims of securitization. The financial equivalent of a house of mirrors.

Any three year old understands that if you give away that tasty apple you don’t have it anymore. So when the FDIC took over WAMU, who had virtually no assets, and then combined with the US Trustee in bankruptcy to sell the servicing rights and other services of WAMU, Chase was the buyer of everything EXCEPT the loans. No assignments exist because none were executed. I spoke to Richard Schoppe the FDIC Trustee who directly confirmed this to me years ago.

It therefore makes sense that the paperwork used in court is fabricated, forged or irrelevant to ownership, authority or even balances. In a case Patrick Giunta and I won about a year ago, a veteran Judge ruled that the Trust never owned the loan, that the transfer  documents were meaningless, that the “new servicer” had no right to service the loan, and that Chase probably owed our client money for fooling around with the escrow account. Lawyers for US Bank as trustee for the inactive REMIC Trust tried using all kinds of documents including brand new powers of attorney that said nothing of value.

The “WAMU” notes, by the way, were mostly destroyed. Almost all of the notes you see today and represented as originals would not survive a real forensic examination. Many of the loan documents were printed and mechanically signed within hours or days of being presented in court as the originals signed by the homeowner. That is why I always caution against admitting the signature — it usually isn’t the original signature but it sure looks like it. Now Chase is walking this practice back because the executives wish to avoid civil and maybe other prosecution. So they are using “substitutes” for the notes.

“Because they didn’t have possession of the note, they had to rely on the purchase and assumption agreement, which the Fourth DCA found insufficient,” said defense attorney Ricardo M. Corona Jr. of the Corona Law Firm in Miami.

Like the Mortgages, Rescission is Counter-Intuitive

WE HAVE REVAMPED OUR SERVICE OFFERINGS TO MEET THE REQUESTS OF LAWYERS AND HOMEOWNERS. This is not an offer for legal representation. In order to make it easier to serve you and get better results please take a moment to fill out our FREE registration form https://fs20.formsite.com/ngarfield/form271773666/index.html?1453992450583 
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  4. Rescission review and drafting of documents for notice and recording
  5. COMBO Title and Securitization Review
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For further information please call 954-495-9867 or 520-405-1688. You also may fill out our Registration form which, upon submission, will automatically be sent to us. That form can be found at https://fs20.formsite.com/ngarfield/form271773666/index.html?1452614114632. By filling out this form you will be allowing us to see your current status. If you call or email us at neilfgarfield@hotmail.com your question or request for service can then be answered more easily.
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THE FOLLOWING ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.

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There seems to be some miscommunication regarding rescission. The confusion seems to emanate from the assumption that the “borrower” would lose if there was a creditor with standing who filed a lawsuit to vacate the rescission. If so, that would be missing the point. The point is not whether the homeowner would lose if the lawsuit was filed. The point is that the lawsuit is never going to be filed. The rescission is effective as a matter of law, regardless of whether there exists an arguable or even valid defense.

Normally as lawyers we would anticipate the end result, but in this case the end result never happens because there is no creditor with standing, which is the whole point of understanding the false claims of securitization that have permeated the foreclosure marketplace. The answer, which I understand is completely counter-intuitive, is that there is no creditor — i.e., no party who could answer to the description of the owner of the debt (not the paper) — i.e. the party to whom the money is actually owed. The absence of a creditor is hard to fathom, but it is nonetheless true. AND THAT is why no bank, despite advice of counsel, has filed any action within the 20 day window to file, that seeks to vacate the rescission.

It may be true that we could expect to lose if there was a case filed and there was a trial. But if the case is never filed, the rescission stands. And since it is effective by operation of law, the loan contract (if it was ever consummated — which is doubtful) is canceled, the note is void and the mortgage is void. The only restriction I see is that in judicial states after judgment, it would appear that there is no loan contract that still exists after judgment and so there is nothing to cancel.

Looking at the date of documents is not the way to determine when a loan contract was consummated. We must return to basics, and that is what is presumed but the presumption is wrong. basic contract law X makes an offer to Y. Y accepts the offer. X and Y exchange consideration. In these loans, not only did X and Y NOT exchange consideration, but the very fact that they didn’t makes X a predatory lender as per REG Z. But more to the point, if X did not perform by loaning money to Y, there is no loan contract= no consummation= void note and void mortgage. If there was a consummation you need to know the date of funding, which is after the documents were signed and could be days, weeks or even months afterwards.

Check the Yvanova decision for more on this. Ownership of the debt, as per the Yvanova court, is what counts, not merely possession of paper that could and probably is fabricated.

Here are some quotes from recent articles or upcoming articles

“TILA rescission in which the notice of rescission alone (upon mailing) immediately cancels the loan contract, and voids the note and mortgage — even if the rescission is disputed on grounds of the 3 year limitations etc.

As Justice Scalia said, “the statute makes no distinction between disputed and undisputed rescission.” Thus the rescission is effective even if it APPEARS As though the right to rescind under TILA may not have existed on the date the notice of rescission was mailed.
NOTE TO LAWYERS: ANY OTHER INTERPRETATION WOULD REQUIRE THE “BORROWER” TO FILE SUIT TO MAKE THE RESCISSION EFFECTIVE WHICH IS THE OPPOSITE OF THE TILA RESCISSION STATUTE, REGULATION Z AND THE UNANIMOUS DECISION OF THE US SUPREME COURT IN JESINOSKI. THE STATUTE PUTS THE RESPONSIBILITY FOR PUTTING THE EFFECTIVENESS OF THE TILA RESCISSION IN ISSUE SQUARELY ON THE PARTIES PURPORTING TO BE THE LENDER AND THEY ONLY HAVE 20 DAYS FROM RECEIPT TO FILE A LAWSUIT SEEKING TO HAVE THE RESCISSION VACATED.”

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.

Paatalo’s question Shatters Chase-WAMU Chain of “Title”

WE HAVE REVAMPED OUR SERVICE OFFERINGS TO MEET THE REQUESTS OF LAWYERS AND HOMEOWNERS. This is not an offer for legal representation. In order to make it easier to serve you and get better results please take a moment to fill out our FREE registration form https://fs20.formsite.com/ngarfield/form271773666/index.html?1453992450583 
Our services consist mainly of the following:
  1. 30 minute Consult — expert for lay people, legal for attorneys
  2. 60 minute Consult — expert for lay people, legal for attorneys
  3. Case review and analysis
  4. Rescission review and drafting of documents for notice and recording
  5. COMBO Title and Securitization Review
  6. Expert witness declarations and testimony
  7. Consultant to attorneys representing homeowners
  8. Books and Manuals authored by Neil Garfield are also available, plus video seminars on DVD.
For further information please call 954-495-9867 or 520-405-1688. You also may fill out our Registration form which, upon submission, will automatically be sent to us. That form can be found at https://fs20.formsite.com/ngarfield/form271773666/index.html?1452614114632. By filling out this form you will be allowing us to see your current status. If you call or email us at neilfgarfield@hotmail.com your question or request for service can then be answered more easily.
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THE FOLLOWING ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
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Bill Paatalo, whose case opened the door for homeowners on the issue of rescission and other matters discussed on this blog, asks the central question: His telephone number is 406-328-4075. If the WAMU process involved destruction of documents, no endorsement and no assignment, then how can Chase retroactively correct this fatal deficiency in the absence of producing proof of the money chain? Courts have been ignoring this question but the tide is definitely turning.

But his question has a much wider scope. The same question applies to the mergers and FDIC deals across the country that occurred in the aftermath of the mortgage meltdown.

see http://bpinvestigativeagency.com/if-wamu-admits-to-destroying-the-chain-of-title-how-can-chase-retroactively-correct/

Read his article and his support and you will see that the fatal defects exists. Courts have been ignoring this because of their improper presumption that the transaction really occurred when the loan was originated. But all evidence points to the contrary and no evidence points to any other conclusion, to wit: nearly all the loans were table funded (and therefore predatory per se under REG Z). and that means that the “originator” was not the lender, creditor or source of funds for the origination or acquisition of the alleged loan.

The argument in opposition is “Where do you think the money came from?” THAT is not argument. It is obfuscation. The fact is that the ONLY parties with the real answer to that question refuse to reveal the truth. It is hardly a reason to shift the burden of proof or the burden of persuasion to the one party with the least access to the truth.

At some point the courts must stop accepting self-serving statements from counsel as the basis upon which they issue a ruling.

Colorado County Court Judge Gets It

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

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see Ruling on Motion RE Hearing December 4, 2015

Hat Tip Eric Mains

I have already commented on this case but there are issues that are becoming more clear as to jurisdiction and so a review of this case is warranted, where the Judge correctly declined to rule until a court of competent jurisdiction ruled on the issue of ownership. In so doing the court refused to grant the eviction order even though the sale had taken place and a deed was issued.

The Judge realized that as a county court judge he lacked jurisdiction to even hear the issue of whether the foreclosure sale was void. Hence he deferred any action on granting eviction until the issues of ownership were resolved. Why? Because eviction can only be granted to the owner of a the property. In this case there was a rescission in the mix. Hence any action after the rescission was mailed was void if it involved enforcing the alleged loan contract, note or mortgage.

As far as I know, there is no law or judicial doctrine that says that if the statutory or common law prohibits you from doing something, and then you do it anyway, that suddenly it becomes lawful because you did it anyway. Breaking the law would thus be changing the law.

The sub-point here that has reared its head and which virtually nobody is paying any attention is in the bankruptcy courts. People think of BKR judges as Federal Judges. Not so fast. They once were called magistrates and still rule subject to an appeal to the Federal District Judge.

It is doubtful, to say the least, that any bankruptcy action, whether 7, 11 or 13, can be continued where the home is a significant part of the estate if the there is a question of ownership, authority or balance raised by the Petitioner. Trustees, Judges and lawyers on all sides are missing the point here. The current trend of ignoring the defenses of the borrower are probably going to lead to a line of decisions that over-rules that practice. But more than anything, the question is whether the BKR judge has any jurisdiction to do anything other than follow the procedures in TILA Rescission as confirmed by SCOTUS.

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This case raises another huge potential problem for the banks on the TILA front, and on the possession front, in a nutshell: They ignored rescission, went ahead with foreclosure sale anyway. The State court ignores the rescission or the borrower does not raise TILA rescission in State Court, whatever. The property goes to sale, BUT, guess who credit bids? Hint, like usual , it ain’t the party who said they held the loan, oopsy! Homeowner won’t move out of the house, “Creditor” files for an eviction.

Think of situations like this where a Homeowner responds to eviction notice in court, “Your honor, First, I issued a TILA rescission before sale and they failed to respond, Second, they are not the proper owners, just look at the credit bid and see for yourself.”

Court says, “You are correct, we don’t have jurisdiction to hear such a claim”, OR they respond “OK we do have jurisdiction, but you can appeal this decision to a higher court”, either way, this is going to be a long haul for the claimed Plaintiff/owner, because getting the foreclosure in their favor does not equal possession, it may take them years and they may LOSE.

So trying to pretend like the rescission does not exist means you may not get possession. You may in fact be liable for quite a bit of damages, or lose even after winning a foreclosure action because a ruling in favor of TILA rescission in a federal or district court action may mean the foreclosure ruling can be overturned, potentially by quiet title, a rule 60 motion, or otherwise.

This opens a whole other dimension for homeowners, and against the banks. They have a judgment, but they can’t get the house, and are in limbo for a long time with possibly being overturned at a later date. Lesson here for them: Don’t mess with TILA, and don’t try to sneak in a credit bid post ruling that shows you were lying to the judge about ownership of the loan.

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