By Neil Garfield
LivingLies.me
 

It is the absence of evidence that becomes evidence of absence.

Suppose you ask any litigator who has experience in defending foreclosure claims. In that case, they will tell you that there is absolutely no doubt that all current claims asserting the right to administer, collect and enforce the implied loan account due from the homeowner are entirely based upon documents introduced to the court as business records.

By Neil Garfleld
LivingLies.me

I think the biggest problem for homeowners can be summed up in two sentences. First they believe there is something they should feel guilty about. Second, they don’t know the difference between (a) documents that can say anything and be prepared at any time and (b) original source (best evidence) documents.

Homeowners are regularly outwitted by Wall Street investment firms. They are the victims of a crime practically every time they sign “loan” documents. Each scheme is designed to prevent them from knowing that they are entitled to a fair share of the securitization scheme. They are victims and they have nothing to be guilty about.

For most lay people, a document is a document and as soon as you call it a document it is evidence of the truth of the matter asserted in the document. So if someone produces an assignment or endorsement even the homeowner assumes that there was a source transaction for which there are source documents (e.g. cancelled checks, correpsodnece etc.).

The thing to remember always is that nobody ever produces the source documents that occurred at the time of the source transction (assignment or indorsement). The homeowner must ask for that and if they can’t produce it, they no longer have a valid legal claim for anything.

I receive many emails every day that basically complain about the corruption of the courts or why they should win any case brought against them by lawyers seeking the remedy of foreclosure on behalf of a name (usually a long name) that may or may not identify an actual legal entity like a natural person, business entity trust. Much of what they say is correct.

By Neil Garfield
LivingLies.me
 

The two things most overlooked by most lawyers for homeowners in litigation are discovery demands (and enforcement) and mediation. These strategies bring the real issue to the early attention of the court --- that the opposition is unable or unwilling to produce the corroborating evidence that the lawyer wants the court to simply presume to be true.

I stumbled upon the mediation strategy when I was in mediation in one case. The mediator asked us to state our appearances. I said said my name and that I was the attorney for the homeowner. The other lawyer stated her name and she said she represented OCwen. So I tried to help her (she was young) and prompted her to say that she represented US Bank (as trustee blah blah). She refused, saying her client was Ocwen Loan Servicing.

The voice on the hone was from a person who said he worked for Ocwen. Smelling blood in the water, I then asked the voice on the phone if he presented the Plaintiff US Bank. He also refused to say that and he said, somewhat absurdly that my question was inappropriate.

All mediation orders require two things. First the parties to the dispute must be present. Second, they must have full powers and authority to settle the case on whatever terms they deem fit.

So after several attempts to get either the lawyer or the "representative" of Ocwen to state their appearance for US Bank (i.e., the "trust") I then terminated the mediation and field a motion for sanctions because US Bank had failed to appear.

As usual the the court ordered us back into mediation and reinforced the order that the parties be present and authorized to consider any possible settlement. So on round two, someone did appear saying they represented US Bank, but the only thing he was authorized to do was to hand my client an application for modification. that is not settlement. That was neither an offer or acceptance and so it wasn't mediation or settlement. That caused a second round of my motion for sanctions, in which I explicitly stated my client was willing to make a cash offer.

So the court ordered a third round along with $1,000 per day sanctions if the lawyer and U.S. Bank failed to comply. We actually and a hearing at which the "representative" was explicitly asked by the judge whether the representative would have authority to consider or reject a cash offer to settle the case. The representative replied in the affirmative.

So then we went for the third time and this time the opposing attorney realized that he had to at least make an offer that might be accepted by my client, vastly reducing the amount demanded and extending out an interest free balloon for 20 years. My client responded that he accepted the deal, that he would pay off the full balance up front and that upon receipt of instructions from US Bank as to where to pay the money, he would wire the funds. In short his acceptance was better than the offer since they would not need to wait for the money.

The response was exactly what I had expected. They did not have the authority because this wasn't about any loan account. It was about the securitization infrastructure that was built up around the loan, referring to the "loan." And the kicker was that they refused to have US Bank even acknowledge the settlement much less issue instructions on how to pay US Bank.

The reason was obvious. US Bank was never intended to receive any money because it and no claim. And the judge entered a final judgment in which he arrived at the conclusion that the named Plaintiff did not have a case or claim. Almost all my objections to evidence were sustained.

By Neil Garfield
LivingLies.me

Homeowners have always legally and morally been entitled to bargain for and share in the infinite profits generated by securitization. So far they have received nothing. Homeowners have never been in default because to be in default there must be a lender, successor lender or creditor who has paid value for an unpaid underlying obligation due from the homeowner. No such party exists in the world of Wall Street "innovation."

The only thing propping up fake securitization infrastructures is the inability of homeowners to comprehend their own transaction and the unwillingness to protect their huge (often hidden) equity in their homestead.

Wall Street has been extremely effective at buying articles on media outlets that downplay foreclosure activity. The fact is that the only reason why foreclosures declined is because of responses to the COVID pandemic.

Foreclosures are continuing to rise and even spike in various counties around the nation. And they are draining the entire economy of stimulus that is needed to offset the financial blows suffered by ordinary Americans. People are losing their wealth every day and it is going to investment banks and the third-party players who act in concert with them.

Neil Garfield
LivingLies.me

Here is a line from another lawyer that I spoke with:

“The investment banks were not selling securities and they can’t say that they were because if they did say that then they would be saying that they were subject to registration requirements for initial public offerings. Their entire position is based on the assertion that compliance with SEC rules is barred by legislation in 1998-1999.

The investment banks were borrowing money under the false label of “certificate” that was nothing more than a nonconforming non negotiable unsecured discretionary promissory note — i.e., the common moniker of “IOU.” So it was a loan and not the sale of any security. Hence, no securitization. The use of SEC.gov is a ploy.

Similarly, homeowners were not borrowing money; they were getting paid for their appointment as issuers of base instruments used for the “sale” of “Certificates” and other derivative products by the investment banks. So no loan and no loan account despite the issuance of the promissory note and mortgage.”

 

STRATEGIES AND TACTICS

There are several stages or phases of confronting the banks:

• Start the confrontation early — creating tracks in the sand:
  • Correspondence
  • QWR (Qualified Written Request)
  • DVL
  • Complaint to CFPB
  • Complaint to State AG
• Challenging Notices in Court:
  • Notice of Substitution of Trustee
  • Notice of Delinquency
  • Notice of Default
• Defending Foreclosure Process:
  • Defensive pleadings
    • Petition for TRO (Temporary Restraining Order - nonjudicial)
    • Judicial Foreclosures
      • Answer
      • Affirmative defenses
      • Counterclaims
  • Post Judgment and Post Sale Motions and Actions 
    • Change of parties
    • Notice of payment to a third party
  • Proactive and Offensive Strategies and Tactics
    • Collateral lawsuit for Declaratory, Injunctive and Supplemental Relief
    • Bad faith claims against title insurers
    • Actions to reform original transaction
    • Offers of Judgment and Offers to Pay
    • Quiet title

By Mark Henricks,  Daphne Foreman
Forbes.com

Say you are sitting around on a Sunday evening, getting ready to watch a professional football game on television, when the phone rings. It’s a debt collector, calling to demand payment of a debt you don’t recall owing. What do you do?

A typical response might be to hang up, shake your head and check to make sure the nachos aren’t overheating. But a better move might be to take a few seconds to ask for and write down the names of the caller and the debt collection company, as well as the company’s street address and phone number. Then, before you settle down for kickoff, make a note to send a debt verification letter.

Never heard of one? A debt verification letter is a powerful tool a consumer can use to fend off unscrupulous, abusive or simply mistaken debt collection efforts. It’s a document you can send to someone who says you owe money to inform them that you don’t recognize the debt, demand that they prove you owe it and instruct them to leave you alone.

By Neil Garfield
LivingLies.me

I think the one idea that sticks in the throat of nearly everyone is the idea that no money was loaned. That idea seems impossible and to many skeptics, it sounds like a snake-oil salesman trying to peddle what people want to hear. People know that they did really buy their home, and the majority of these transactions are refinancing, which means that the old “lender” got paid off, right?

The goal of the foreclosure defense strategy is to undermine the ability of the foreclosrue mill to put on a case --- not to prove that the allegations are wrong.

By Neil Garfield
LivingLies.me

• Let me first correct what I think is a misimpression or misapprehension: Defense of a civil case in court consists of two possible strategies --- usually used in conjunction with each other.
   
• First and best is proving that the allegations against the defendant (homeowner) are untrue. this is generally impossible in the foreclosure of transactions that have been subject to the securitization process.
   
• Second, and equally effective, is to undermine the ability of the Plaintiff's lawyers to put on a case, to wit: to establish the prima facie elements of a foreclosure case. This is the best option to win or settle a foreclosure case on favorable term.
   
• Every foreclosure case starts with a pleading and exhibits. the allegations and the exhibits are required by law to be taken as true at the beginning of the case. In the middle of the case, the homeowner wants to show the inability or unwillingness of the attorneys for the named claimant/plaintiff to corroborate facts that the attorneys want to have the court presume are true.
   
• [The attorneys for the named claimant is always relying upon available legal presumptions arising from the facial validity of the exhibits and from relaxed pleading requirements that were created before the era of securitization.]
   
• By a series of motions to compel, motions for sanctions and motions in limine gradually the homeowner can bring the court to an inevitable conclusion that is 180 degrees opposite from the inevitable result that the court was presuming at the beginning of the case. to wit: having failed or refused to answer interrogatories and request for admissions, and having failed to respond to a request to produce, even after court orders (usually many of them) the foreclosure mill lawyers are barred from putting on evidence as to the truth of the matters that they wanted the court to presume were true.
   

by Neil Garfield
Livinglies.me

Paper checks have become a thing of the past. We have been too quick to assume they are not necessary — like paper ballots. But without corroborating evidence, the presumption arising from a document that recites “for value received” those presumptions can be busted wide open. But that only happens if you challenge it in a timely and proper manner.

Hat tip to Summer ChIc. She found the following description of the places that would have a record of a wire transfer. When you ask for a canceled check or evidence of the wire transfer the foreclosure mill will burst into flames. And you must understand that the reason is that there is no wire transfer in many situations and further if there is one, it didn’t come from the “lender” or “assignee” or anyone else who appears in the chain of title.

None of this makes sense to anyone who insists on viewing the status of the transaction as a loan. But it makes perfect sense to anyone who views the transaction as either completely fictional or simply an incentive payment to get the homeowners to execute the only documents that give rise to the sale of securities. The investment banks were not interested in loans. They were strictly interested in selling securities.

When you look at it the second way then you realize that there wouldn’t be any further “payments of value” because it was already paid. And the legal significance of that is this: endorsements of notes can be valid without consideration but assignments of a mortgage without transferring the debt by payment of value for the underlying obligation cannot be valid nor enforceable. Such assignments are, in all U.S. jurisdictions a legal nullity.

Like all con games, anyone with an interest can pull the plug on it.

By Neil Garfield
LivingLies.me

A good lie by definition is one that is believed by the listener or reader. In order to pass off a good lie, the source must be considered credible (i.e., a con man) or the listener or reader must erroneously believe that they have independent knowledge that confirms the truth of the matters asserted. It’s still a con, but as any good con man will tell you, it only works when the “mark” convinces themselves.

In the world of finance, derivatives, and the illusion of lending, the marks are the homeowner and investors. This is followed by the myriad of investment vehicles that trade in derivatives of derivatives, but that is another story.

The latest announcement from Ocwen that it is selling servicing rights is an example of the con. It is a simple announcement that it is selling its servicing rights to the “newly created” HLSS — a company that would not exist at all if it were not for an IPO that raised money for it to “buy” the servicing rights presumably sold — but not warranted — by Ocwen.

This is simply another one of thousands of announcements of transactions over three decades in which Wall Street investment banks created, maintained, and promoted the illusion that any part of their claim of “securitization of debt” was ever true. The plain truth is that no asset (debt is an asset) is securitized unless it is sold in a real-world transaction in which the purchaser paid value in exchange for documents conveying ownership of the underlying obligation (from someone who owns it). This does not happen in residential mortgage loans.