JUDICIAL NOTICE is just one more legal device by which Banks and Servicers introduce fake documents or documents they can’t get because they are “lost”.
Get a consult! 202-838-6345
JUDICIAL NOTICE is just one more legal device by which Banks and Servicers introduce fake documents or documents they can’t get because they are “lost”.
Get a consult! 202-838-6345
Listen Here: https://youtu.be/jOeAe9zT5D0
Yesterday, attorney James “Randy” Ackley appeared on the Neil Garfield Radio Show. The show was a fascinating discussion about banks’ creating the illusion of standing when a bank is unable to demonstrate they have the right to foreclose.
Neil and Randy addressed why the courts were allowing loan servicers to present evidence that was hearsay, often fraudulent and did not comply with the rules of evidence. Ackley stated that, “The court is allowing evidence to be introduced that would not be admitted in any other type of case.” The discussion brought up the fact that courts are making erroneous presumptions in favor of the banks despite the fact that there is now a public record of banks fabricating evidence, robosigning documents, false notarizations and bank employees testifying under oath about facts they know nothing about.
To learn more about Randy Ackley at: http://4closurefraud.org/2016/04/05/james-r-ackley-responding-to-disaster-a-contemporary-approach-to-foreclosure-defense
Judges need to reconsider their positions. They need to make the choice between their false perception of a “free house” and a “get of jail free card.”
The plain facts are that those so-called REMIC Trusts do not and never have existed as operating entities. They exist on paper and have no legal significance because they never were in operation. It is not just that the paperwork was fabricated, back-dated and forged. It’s that the presumed transactions never happened. That is why Adam Levitin refers to it as “securitization Fail.”
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Even investigative journalists are missing the obvious. Either they lack the knowledge to report correctly on the subject or they have been instructed to stay away from Wall Street corruption. The plain facts are that those so-called REMIC Trusts do not and never have existed as operating entities. They exist on paper and have no legal significance because they never were in operation. An empty trust has no legal significance.
It is not just that the paperwork was fabricated, back-dated and forged. It’s that the presumed transactions never happened. That is why Adam Levitin refers to it as “Securitization Fail.” And that is the whole reason for fabrication, forgery, backdating and robo-signing of documents. If the transactions were real, nobody would have needed to go to DOCx, LPS (now “Black Knight”) et al to create the documents that created the illusion of reality.
The questions that have NOT been asked include but certainly are not limited to the following:
1. How could the Big Banks be carrying bad loans on their balance sheet? AND the corollary question is how they could be the seller of those loans. The answer is that they cast themselves as the seller of loans so they could book “trading profits” on loans where they were not the lender. In doing so they were asserting positions that were diametrically opposed to the positions taken in foreclosure actions — that the “lender” was whoever is on the note and mortgage. So on one hand the TBTF banks are asserting they made the loans, they own the loans and they were losing money as a result of non-payment by the borrowers and the other hand they are having their puppet players assert that they are the lenders who originated or acquired the loan. Which is it? ANSWER: NEITHER! The banks used the money of all investors from a commingled fund undifferentiated by any of the Trust acronyms, and then claimed whatever was convenient. And nobody is talking about this crime. The investors are the ONLY parties with an equitable claim for payment but are not protected by either the false note or false mortgage — both of which were converted to the apparent ownership of dozens of players who participated in this scheme. In the meanwhile the Banks and servicers are eating away at any semblance of recovery for the investors by asserting improper claims for fees, costs and advances.
If you sit down with pencil and paper you can understand that by hiding a 10% APR loan in a 5% APR portfolio they were able to “sell” the loan to the “trust” — on paper without any consideration — and book a false “trading profit” equal to the amount of the loan. Do the Math. The media is either ignoring the truth or don’t understand it.Those trusts were never active, never got any money from the sale of their “mortgage backed securities”, never had a bank account and never had a financial statement, which on the reporting trusts would have been filed with the SEC. Instead they filed rule 15 forms saying they had nothing further to report.They are hiding behind the cloak of another part of that rule that says reporting can stop when the number of investors falls below 300. But these trusts never had more than 300 investors at inception or any other time. They only filed on some of the trusts to give the appearance of propriety when in fact the BANKS were taking the entire proceeds of the sale of the mortgage backed securities issued BY THE TRUSTS and pocketing it. Then they used only as much of the Investor money as was necessary to give the appearance of a loan pool that was originated or acquired by the trust when no such transaction ever occurred. In short the were treating the offering of MBS issued by the Trust as though it was offering of the Bank. The “Trust’ was merely a 100% controlled entity of the Bank existing only on paper and not at law.
2. The same logic applies to the sale of the mortgage backed securities. The banks were not buying them, they were selling them. So the entire “loss” myth is merely a continuation of the fraud the Banks perpetrated on the investors and then the borrowers — violating the law and creating the illusion of a lender who was really not the lender.
That is important because it violates the federal law against the practice of table-funded loans. But more importantly, a party who does not loan money to a borrower has no right to be on the note and mortgage. And parties who make claims based upon the note and mortgage are really pursing their own interests and thus perpetrating a fraud upon the court, contrary to the interests of the investors whose money was procured by trick and deceit.
Lately some court have started allowing discovery to pursue this “theory” of the defense. The Banks are screaming. Enforcement of those discovery orders would reveal the true nature of the largest economic crime in human history. And the assumption expressed by many judges in open court that these are things that can be worked out by the parties later is belied by the fact that the Banks are continuing to steal what is left of the investments.
That “assumption” by the court is legislating from the bench and in direct conflict with Federal and State law regarding lending and property.
That assumption by the courts has opened a door to moral hazard that is wreaking havoc already on the West Coast and undoubtedly will soon be seen on the East Coast — total strangers discovering apparent debts owned by consumers in all sorts of loans, sending the “borrower” notices and then pressing for collection or even foreclosure. That is exactly what was revealed in the San Francisco, Osceola and dozens of other studies. Judges need to reconsider their positions. They need to make the choice between their false perception of a “free house” and a “get of jail free card.”
Maybe it is true that some of the earlier attorneys for the banks were caught by surprise when they learned of fabrication of documents, unauthorized signatures and of course Robo signing. In this case lawyers from the state of Maine face possible discipline for their failure to take appropriate action in over 100 cases. This stems from the revelation that GMAC mortgage have an employee named Jeffrey Stephan, who was signing between 6000 and 8000 legal foreclosure documents per month without knowing anything. His job apparently was simply to sign his name. He wasn’t told anything, he didn’t see anything, and he never asked anything. See no evil, hear no evil, speak no evil.
The law firm is Drummond and Drummond. One of the attorneys for that firm, Paul Peck, testified at a hearing last Thursday that he was completely surprised that Stephan never read the affidavit. The problem for the firm is that they had 100 other cases in which the same employee had executed an affidavit that was being used in litigation. The firm did nothing to inform the court of the potential problem. The Bar Association is accusing the firm of violating its ethics and failing to notify the court in the other cases. There does not appear to be any allegation that the firm was complicit in the filing of a false affidavit. Most people on the foreclosure defense side of these issues believe that lawyers should be disbarred for not only failing to notify the court of the potential problem, but also failing to perform due diligence intentionally to avoid knowing that they were submitting false testimony.
While I agree that the lawyers probably had more than an inkling as to what was going on, it is my opinion that the firm should be put under supervision and probation. We are walking a fine line here and we must be careful what we wish for. Lawyer is obligated to advocate every possible position that might be beneficial to his client. If the lawyer does not absolutely know for sure that his client is lying, I think most people who are engaged in the enforcement of ethics and discipline of lawyers would agree that there is no foul. Those of you who have been represented by counsel in connection with some matter in litigation probably know that there are always more than one interpretation of the facts and always more than one opinion as to which facts are important and which are not. You expect your lawyer to use the things that are most beneficial to your position.
However, that said, I think the attorneys who used those affidavits after hearing the revelation about GMAC mortgage and subsequent revelations are in a different position. For self-preservation alone they had an obligation to inquire. They might face liability for their part in submitting false testimony to the courts of various states. Their insurance company will probably take the position that they were committing an intentional act for the benefit of preserving an extraordinarily large channel of fee revenue. I think the insurance company would be right. And I think that those attorneys should face harsh discipline.
With all that we know about fraudulent conduct of all of our major financial institutions, which so far has resulted in perhaps $200 billion in settlements, it is hard to imagine why any attorney would not closely scrutinize documents submitted for support of a foreclosure action unless they were intentionally avoiding information that they knew or should have known existed. Of course each such case should be examined separately on its own fact pattern. Not all lawyers work for a foreclosure mill should be subject to major discipline or even investigation. The layering that occurred on Wall Street was also happening in the foreclosure mills. They were creating imaginary lines so that they could throw the junior associates under the bus if the truth was exposed. I would advocate that the junior associates should be given immunity from prosecution and that the discipline should be directed at the managing partners who were aware of the issues.
Of course all of this is just a distraction from the main question, to wit: why was it necessary to fabricate documents, commit perjury, and create all of this layering if the loans were actually enforceable?
My answer is the same as the allegations made by the investors who thought they were buying mortgage bonds, the insurers who thought that they were paying broker-dealers who had a loss, and the guarantors who thought that they were paying broker-dealers who had a loss. They are all claiming (in an out-of-court) that the broker-dealers committed fraud and mismanagement of money.
In plain language they are alleging that the investment banks (broker-dealers) stole the money that was intended to be invested in the trusts. They are alleging that the investment banks created a web of controlled companies that served as sham originators on loans that were made using the money that investors advanced for the purchase of mortgage bonds issued by a REMIC trust that turned out to be unfunded and without any assets or income. They are alleging that the mortgage documents are unenforceable. Don’t take my word for it — you can Google up the complaints and read it for yourself.
It must be fair to assume that the investment banks would not pay $200 billion unless they were saving themselves from liability for much more than that. It is also fair to assume that the settlements with the investors reduced the loss of the investors. Therefore is also fair to assume that any demand for payment that does not reflect a reduction in principal (and therefore a reduction in interest) is wrong. Any notice of default would similarly be defective and so would the notice of acceleration. Any lawsuit were nonjudicial foreclosure would also be defective. The parties involved have actual knowledge of both the documentary problems outlined in the case above in Maine and the money problems that have been announced with great fanfare.
So the question is why isn’t the borrower getting credit on the loan account when these settlements occur and can be allocated to the loan account? If the actual creditor has experienced a reduction in the account receivable, what is the basis for allowing anyone to claim that the full amount is still due?
And that leads to my final question of the day, to wit: why would anyone try to claim that the full amount is due and enter into needless litigation? I can think of no answer other than pure greed and the failure to present this question properly in a court of law.
After seeing the above article, our own Dan Edstrom, Senior Securitization Analyst adds the following:
Excellent article. Here is what I have seen in a case that seems to relate to that duty:Without good cause Deutsche, OneWest, attorney ******** and the Law Firm ****** relied on preposterous representations from the invalid Proof of Claim and closed their eyes to avoid discovery of the truth. See In re Eashai, 87 F.32 1082, 1090-91 (9th Cir. 1996); In re Apte, 180 B.R. 223 (9th Cir. BAP 1995); See CA. Civ. Code § 1710. See also Townsend v. Holman Consulting Corp., en banc, 929 F2d 1358 (9th Cir. 1990), “sanctions may be imposed for failure to conduct reasonable investigation before filing complaint”. See: In re Villa Madrid, 110 B.R. 919 (9th Cir. B.A.P. 1990), Sanctions on attorney for filing bad faith bankruptcy petition (comparable in this case to filing a bad faith Proof of Claim and then under F.R.B.P. Rule 9011(b) the attorney “later advocates” the creditors claim). Once again see Keystone Driller Co. v. General Excavator CO., supra, 290 U.S. 240 (1933) “that [290 U.S. 240, 245] whenever a party who, as actor, seeks to set the judicial machinery in motion and obtain some remedy, has violated conscience, or good faith, or other equitable principle, in his prior conduct, then the doors of the court will be shut against him in limine; the court will refuse to interfere on his behalf, to acknowledge his right, or to award him any remedy.”
Filed under: CASES, CORRUPTION, evidence, expert witness, Fannie MAe, foreclosure, foreclosure defenses, foreclosure mill, GARFIELD KELLEY AND WHITE, investment banking, Investor, MBS TRUSTEE, MODIFICATION, Mortgage, Motions, Pleading, securities fraud, Servicer, TRUST BENEFICIARIES, trustee | Tagged: Drummmond and Drummond, GMAC MORTGAGE CORPORATION, Jeffrey Stephan, Maine Bar Association, Paul Peck, robosigning | 33 Comments »
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As we predicted more and more County recorder offices are suing to collect transfer fees on loans that have gone to foreclosure under the allegation that a valid loan and lien was transferred. Expect other revenue collectors in the states to start doing the same for registration fees, taxes, interest, penalties and fines. This battle is just beginning. We are now about to enter the phase of finger pointing in which each type of defendant — bank, servicer, MERS, Fannie, Freddie etc. defends with varying exotic defenses that more or less point the finger at some other part of the securitization chain.
The real story is that title chains have been irretrievably corrupted — which means that title cannot be established by using the documents alone. Parole evidence from witnesses and production of back-up documents must show the path of the loan and the proof that the transaction was real. Defenders of these lawsuits may be forced to admit that there was no actual financial transaction and that the assignments were assignments of “convenience” negating the reality of the transfer or of any transaction at all.
Either way they are going to have a problem that can’t be fixed. They can’t prove up the documents because the documents are contrary to the path of monetary transactions and recite facts that are untrue —- in addition to the fact that the documents themselves were fabricated, forged, robo-signed and fraudulently presented. This is why I say that regardless of how hard anyone tries to do the wrong thing, the only right way to correct these problems is to negate the foreclosures that have already been concluded, stop the ones that are being conducted in the same way as the old way, and make them prove up their right to foreclose. They either must admit that there were not valid transactions — including the original note and mortgage — or they won’t be able to prove a valid transaction because the money came from sources other than those shown on the closing documents.
The actual sources of the money loaned the money to borrowers without documentation believing they had the documentation. But the mere fact that borrowers signed documents is not an invitation for any stranger to imply that it was for their benefit. For these reasons the mortgage in most cases was never perfected into a valid lien and cannot be perfected without corrective instruments signed by the borrower or upon some order by a court. But the courts are going to be far more careful about the proof here. Most Judges are going to take the position that they could be fooled once when the foreclosure originally went through on the premise of valid documents and an actual financial transaction attached to THOSE documents, but that they won’t be fooled a a second time. They will demand proof. And proof according to the normal rules of evidence is completely lacking because the entire securitization chain was a lie from one end to the other.
The borrower will end up owing the money less offsets for payments received by the real creditor, once the identity of the real creditor is revealed, but the absence of a mortgage or deed of trust naming that actual creditor will void the mortgage and negate the credit bid at the auction.
Ohio lawsuit accuses Freddie Mac of fraud
by Tara Steele
The battle between Fannie Mae, Freddie Mac, and various government entities continues, each taking a different approach on the battlefield.
Freddie Mac sued by county in Ohio
Last year, Mortgage Electronic Registration Systems Inc. (MERS) became the subject of lawsuits from counties across the nation as District Attorneys allege the company never owned the loans they were facilitating foreclosures for, and in most cases, judges agree, and their authority to facilitate has been denied in several counties. Dallas County alleges the mortgage-tracking system violates Texas laws and shorted the county anywhere from $58 million to over $100 million in uncollected filing fees due to the MERS system, dating back to 1997.
Others sued MERS as well; in February, in the U.S. Court for the Western District of Kentucky, Chief Judge Joseph McKinley Jr. dismissed a lawsuit filed by the Christian County Clerk, denying relief to the County for the same relief sought by Dallas County and others.
Rampant mortgage fraud, continued robosigning
Studies have shown that MERS destroyed the chain of title in America, and other studies reveal that illegal robosigning is still in play, and that foreclosure fraud has occurred in themajority of loans.
As the courts have not yet rewarded cities, counties, or states pursuing action against MERS, other tactics are being taken by these entities, for example, Louisiana is using RICO laws to sue MERS.
Summit County, Ohio taking a different approach
Summit County, Ohio filed a lawsuit1 Tuesday against Freddie Mac, alleging a failure to pay fees on transfer taxes on over 3,500 real estate transactions over six years. Court documents show that the Federal Home Loan Mortgage Corporation is accused of committing fraud by claiming it was a government entity, thereby exempt from transfer taxes. The County has not released a final assessment of the amount they believe is due, but they will also be seeking interest and penalties.
This approach is far different than going after MERS (which coincidentally was established by Fannie Mae and Freddie Mac over 15 years ago), rather going directly after the still-functioning Freddie Mac.
“The reality is Freddie Mac is a federally chartered, private corporation and they should have been paying these fees and taxes,” Assistant Prosecutor Joe Fantozzi told the Akron Beacon Journal.
Freddie Mac and Fannie Mae began paying transfer taxes in 2009, so the lawsuit is only seeking transfer taxes due from 2002 through 2008, which in Summit County are $4 per $1,000 on all real estate transactions. Additionally, the county also charges a 50-cent lot fee and recording fees, which are $28 for the first two pages and $8 for each additional page.
Fannie Mae not named, FHFA already fighting back
Although Geauga County in Ohio sued MERS, Chase Bank, and CoreLogic, the Akron Beacon Journal reports that Summit County is believed to be the first county in the state to file legal action against Freddie Mac. Fannie Mae was not named in the suit due to the low volume of mortgages in the county it handled during the time period.
The Federal Housing Finance Agency (FHFA), the conservator of Fannie and Freddie, is fighting back on these same battle lines, suing in Illinois to validate the two mortgage giants’ tax-exempt status, the Chicago Tribune reported. This move is likely an effort to circumvent more lawsuits like the one currently being filed in Summit County.
Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud | Tagged: Akron Beacon Journal, Chase Bank, Chicago Tribune, Chief judge Joseph McKinley Jr, CoreLogic, corruption of title chains, county recorder offices, Fannie MAe, FHFA, fraud, Freddie Mac, Joe Fantozzi, kentucky, Louisiana, MERS, mortgage fraud, Ohio, Recording fees, RICO, robosigning, Tara Steele, taxes | 70 Comments »
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Editor’s Comment: The very same people who so ardently want us to remain strong and fight wars of dubious foundation are the ones who vote against those who serve our country. Here is a story of a guy who was being shot at and foreclosed at the same time — a blatant violation of Federal Law and good sense. When I practiced in Florida, it was standard procedure if we filed suit to state that the defendant is not a member of the armed forces of the United States. Why? Because we don’t sue people that are protecting our country with their life and limb.
It IS that simple, and if the banks are still doing this after having been caught several times, fined a number of times and sanctioned and number of times, then it is time to take the Bank’s charter away. Nothing could undermine the defense and sovereignty of our country more than to have soldiers on the battlefield worrying about their families being thrown out onto the street.
One woman’s story:
My husband was on active duty predeployment training orders from 29 May 2011 to 28 August 2011 and again 15 October 2011 to 22 November 2011. He was pulled off the actual deployment roster for the deployment date of 6 December 2011 due to the suspension of his security clearance because of the servicer reporting derogatory to his credit bureau (after stating they would make the correction). We spoke with the JAG and they stated those periods of service are protected as well as nine months after per the SCRA 50 USC section 533.
We have been advised that a foreclosure proceeding initiated within that 9 month period is not valid per the SCRA. I have informed the servicer via phone and they stated their legal department is saying they are permitted to foreclose. They sent a letter stating the same. I am currently working on an Emergency Ex Parte Application for TRO and Preliminary Injunction to file in federal court within the next week. It is a complicated process.
The servicer has never reported this VA loan in default and the VA has no information. That is in Violation of VA guidelines and title 38. They have additionally violated Ca Civil Code 2323.5. They NEVER sent a single written document prior to filing NOD 2/3/2012. They never made a phone call. They ignored all our previous calls and letter. All contact with the servicer has been initiated by us, never by them. This was a brokered deal. We dealt with Golden Empire Mortgage. They offered the CalHFA down payment assistance program in conjunction with their “loan” (and I use that term loosely). What we did not know was that on the backside of the deal they were fishing for an investor.
Over the past two years CalHFA has stated on numerous occasions they do not own the 1st trust deed. Guild (the servicer) says they do. I have a letter dated two weeks after closing of the loan saying the “servicing” was sold to CalHFA. Then a week later another letter stating the “servicing” was sold to Guild. Two conflicting letters saying two different things. The DOT and Note are filed with the county listing Golden Empire Mortgage as the Lender, North American Title as the Trustee and good old MERS as the Nominee beneficiary.
There is no endorsement or alonge anywhere in the filing of the county records. We signed documents 5/8/2008 and filings were made 5/13/2008. After two years of circles with Guild and CalHFA two RESPA requests were denied and I was constantly being told “the investor, the VA and our legal department” are reviewing the file to see how to apply the deferrment as allowed by California law and to compute taxes and impound we would need to pay during that period. Months of communications back in forth in 2009 and they never did a thing. Many calls to CalHFA with the same result. We don;t own it, call Guild, we only have interest in the silent 2nd.
All of a sudden in December 2011 an Assignment of DOT was filed by Guild from Golden Empire to CalHFA signed by Phona Kaninau, Asst Secretary MERS, filed 12/13/2011. om 2/3/2012 Guild filed a Cancellation of NOD from the filing they made in 2009 signed by Rhona Kaninau, Sr. VP of Guild. on the same date Guild filed a substitution of trustee naming Guild Admin Corp as the new trustee and Golden Empire as the old trustee, but on out DOT filed 5/13/2008 it lists North American Title as the Trustee. First off how can Rhona work for two different companies.
Essentially there is no fair dealing in any of this. Guild is acting on behalf of MERS, the servicing side of their company, and now as the trustee. How is that allowed? Doesn;t a trustee exist to ensure all parties interests are looked out for? It makes no sense to me how that can be happening. On the assignment I believe there is a HUGE flaw… it states ….assigns, and transfers to: CalHFA all beneficial interest…..executed by Joshua as Trustor, to Golden Empire as Trustee, and Recordeed….. how can you have two “to’s” .. shouldn’t after Trustor it say FROM???? Is that a fatal flaw???
And then looking at the Substitution it states “Whereas the undersigned present Beneficiary under said Deed of Trust” (which on the DOT at that time would show MERS but on the flawed assignment says Golden Empire was the trustee), it then goes on the say “Therefore the undersigned hereby substitutes GUILD ADMIN CORP” and it is signed “Guild Mortgage Company, as agent for CalHFA”, signed by Rhona Kaninau (same person who signed the assignment as a MERS Asst Secretary). I mean is this seriously legal??? Would a federal judge look at this and see how convoluted it all is?
I appreciate the offer of the securitization discount but in out current economic situation and having to pay $350 to file a federal case we just can’t afford it right now. I hope you will keep that offer open. Will this report cover tracking down a mortgage allegedly backed by CalHFA bonds? This is their claim.
Thank you so much for your assistance. This is overwhelming. Do you have any attorneys here in Southern California you world with I might be able to talk to about what they would charge us for a case like this?
Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud | Tagged: cash bids, chain of title, credit bids, derivatives, false attestations, foreclosures, forgery, fraudulent declarations, GEORGIA, home recovery, homes underwater, inflated appraisal, investor-lenders, lenders, MERS, mortgage bond, mortgages, negative equity, pretender lenders, principal correction, realtors, REMIC, robosigning, short-sale, taxpayer, Wall Street, zillow | 78 Comments »