Category: CASES

We just keep winning Foreclosure Cases

January 14, 2025

We keep winning. People ask us all the time about our wins. Our wins can take many forms but to our clients they are all considered wins. For example, if we help a client defend against an illegal foreclosure and the pretend lender drops their case and it’s dismissed; that’s a win. The homeowner stays in their home. Unfortunately, we see these cases get refiled sometimes even with fraudulent transfers of the supposed “debt” to another pretend lender sometimes years later. At the time the homeowner had the resources to only defend against the pretend lender and not to pursue

What makes a Notarized Document Invalid?

December 19, 2024

Understanding the Role of Notarized Documents in Foreclosure Defense When it comes to foreclosure defense, one critical area of focus is the validity of notarized documents. Homeowners facing foreclosure often encounter documents that appear official and binding simply because they bear a notary’s seal. However, not all notarized documents are created equal. In fact, many documents used in foreclosure cases may be invalid due to improper notarization practices. This can open the door for a strong defense. Let’s break down what makes a notarized document invalid and how it impacts your case. What is a Notarized Document? A notarized document

Another Homeowner Victory In Hawaii! Gary Dubin, Attorney

September 28, 2020

US Bank v Compton 9335344481 Hawaii 2020 Dubin So here is yet another example of litigation done correctly. This case demonstrates that the courts can and will be convinced to rule in favor of homeowners when the correct issue is raised at the right time in the right way. Here are some quotes from the case: “Compton asserts that the evidence which U.S. Bank sought to admit through (1) the “Declaration of Indebtedness and on Prior Business Records” by Carol Davis (Davis), a “Document Execution Specialist” employed by Nationstar Mortgage LLC d/b/a Mr. Cooper (Nationstar), as servicing agent for U.S.

How to Stop the Court from Speculating About the Identity of Claimants in Foreclosure Cases

May 29, 2020

As long as you continually attack the sub silentio assumptions of the court, you will be weakening the case against you for foreclosure. Failure to do so means almost certain failure. Foreclosure is considered a draconian remedy equivalent to capital punishment. All US jurisdictions have adopted as a matter of law and public policy (Article 9 §203 UCC) that the remedy will only be granted to one who paid value for the underlying obligation. If you don’t challenge the sub silentio assumptions of the court, then the judge is free is assume that the granting of foreclosure is a remedy

FDCPA Claims Might Not Be Barred By Statute of Limitations

January 15, 2020

Here is a powerful argument that SCOTUS acknowledged: nobody should benefit from their own fraudulent conduct. The FDCPA has a one year statute of limitations. And people have tried to litigate on the premise that the one year should run from the date of discovery not when the violation occurred. The courts have disagreed saying that if Congress wanted it to be the date of discovery it would have said so. But if the date of discovery was delayed because of additional fraudulent conduct by the defendant then the courts, although always leaning heavily toward the banks, are left in

Interesting NY Decision on Acceleration: U.S. Bank N.A. v. Gordon, 176 A.D.3d 1006 (2d Dept. 2019)

November 26, 2019

“failure to pay this delinquency, plus additional payments and fees that may become due, will result in the acceleration of your Mortgage Note. Once acceleration has occurred, a foreclosure action . . . may be initiated.” the Notice of Default stated that “[t]o avoid the possibility of acceleration,” Defendants were required to make certain payments by a specific time, or ASC “will proceed to automatically accelerate your loan.” (Emphasis added). see https://www.jdsupra.com/legalnews/ny-appellate-court-holds-default-letter-29981/ So it seems that in New York a notice of intention to accelerate or any notice that says that the supposed “lender” will accelerate is not the same as an

How do I Use Article 9 §203 UCC Requiring Value Be Paid for Debt?

July 11, 2019

Many of you have essentially asked the same question referring to Article 9 §203 UCC as adopted by the laws of your state. There is no known cause of action for breach of that statute although one might be conjured. It is an interesting suggestion. My reference to it is simple: the statute says that a condition precedent to enforcement of the security instrument (mortgage or deed of trust) is that the party seeking to enforce must have paid value for the security instrument. Translating that, it automatically means that if someone paid for it then they paid for the

Veira v PennyMac and JPM Chase 4th DCA Finds What Everyone has Known all along — that PennyMac never has standing and Chase, most of the time, doesn't have standing

June 11, 2019

Another case showing shifting attitudes toward illegal foreclosures. At the trial level there have been many such decisions, some with an expanded finding of fact showing that the foreclosure was a sham. On appeal, the courts were always looking for ways to sustain the foreclosure; they still do that but more and more appellate courts are starting to understand that there is no party who has standing in most instances — especially a creditor who actually paid value for the debt. Note how they instruct that judgment must be entered for the borrowers — not dismissal. And the other thing

SCOTUS Revives Qui Tam Actions

May 22, 2019

Until this decision I had assumed that Qui Tam actions were essentially dead in relation to the mortgage meltdown. Now I don’t think so. The question presented is whether actions brought by a private person acting as a relator on behalf of a government entity can bring claims for damages under the False Claims Act. Such actions are barred by the statute of limitations, which requires a violation to be brought within six years of the violation or three years “after the date when facts material to the right of action are known or reasonably should have been known by

Caliber and LSF9 Trust Example of Smoke and Mirrors

February 13, 2019

The lesson is keep your eye on the ball. The natural human reaction to an affidavit is to assume it is true. We assume that it would not be submitted if the lawyers knew it wasn’t true. And in most cases people don’t lie in affidavits. But they do mislead sometimes by leaving out context. And then there are affidavits and declarations fabricated, executed, filed and even recorded in foreclosure cases which are mostly lies and virtually all misleading. To reveal this you must take your time in reviewing the documents and affidavits submitted. They were created so that at

Solving the Puzzle: Settlements with Homeowners Are Rising

January 16, 2019

Hat tip Michael Bazemore It’s not easy to see but if you look at the court docket after a ruling against the parties designated as “foreclosing parties” you can see that these cases are often dismissed with reference to an agreement or settlement between the parties. The typical pleading asking the court to dismiss the case will read as follows: IT IS HEREBY STIPULATED by and between Plaintiff X and Defendant Y that pursuant to [Federal][State] Rule of Civil Procedure (41(a)(2) [Federal] this action and all causes of action contained therein shall be dismissed with prejudice. It is further Stipulated

SCOTUS Oral Argument Illuminates the Main Question in Foreclosures: What are the roles of the parties?

January 10, 2019

Two days ago in the case of Obudskey v McCarthy and Holthus LLP the Supreme Court of the United States (SCOTUS) heard oral argument on issues relating to the application of the Federal Debt Collection Procedures Act (FDCPA). The argument for including the law firm pursuing foreclosure was presented by DANIEL L. GEYSER, Esq. in a case that started in Texas. In the course of reading the oral argument and comments by the court it is clear that everyone is struggling with defining the roles of each of the players in foreclosure. The fact that such a struggle exists is

FLA S Ct Reverses Course on Homeowner's Award of Attorney Fees and Raises Other Issues for Defense of Foreclosures

January 8, 2019

For those of us that have access to the data, we know that homeowners are winning foreclosure cases all the time. Nobody else knows because as soon as a homeowner wins or gets into a winning position they are offered money for their silence. The situation worsened when Florida and courts in other states turned down the homeowner’s demand for attorney fees after the homeowner had flat out won the case — especially where the case was dismissed for lack of standing. Here the homeowner once again wins, having advanced several defense narratives. The homeowner applies for recovery of attorney

9th Circuit Creeps Up the Ladder in Hoang TILA Rescission Breakthrough

December 7, 2018

This case comes the closest yet to the truth about TILA Rescission. And it requires that TILA Rescission be applied — if there is an action to enforce within the statute of limitations covering contract actions in the state in which the property is located. The court’s conclusion that there must be a statute of limitations is derived from its erroneous assumption AGAIN that TILA rescission is a claim rather an event. Jill Smith has done an outstanding job of moving us toward the final step in TILA REscission, to wit: TILA Rescission is procedural and it is an event.

Impact of Serial Asset Sales on Investors and Borrowers

June 7, 2018

The real parties in interest are trying to make money, not recover it. The Wilmington Trust case illustrates why borrower defenses and investor claims are closely aligned and raises some interesting questions. The big question is what do you do with an empty box at the bottom of an organizational chart or worse an empty box existing off the organizational chart and off balance sheet? At the base of this is one simple notion. The creation and execution of articles of incorporation does not create the corporation until they are submitted to a regulatory authority that in turn can vouch

Fla 2d DCA: HELOC Instrument Not Self-Authenticating Article 3 Note

May 30, 2018

Just because an instrument is not self-authenticating doesn’t mean it can’t be authenticated. Here the Plaintiff could not authenticate the note without the legal presumption of self-authentication and all the legal presumptions that follow. And that is the point here. They came to court without evidence and in this case the court turned them away. Florida courts, along with courts around the country, are gradually inching their way to the application of existing law, thus eroding the dominant premise that if the Plaintiff is a bank, they should win, regardless of law. GET A CONSULT FREE RESEARCH: Go to our home

Homeowners Sue SPS in Class Action Over Failure to Mitigate

May 25, 2018

Thousands of cases like this one have pointed out that SPS and other servicers like Ocwen do not consult with any investor, do not evaluate the case for settlement, modification or mitigation. The answer to questions arising from the unwillingness of those companies to comply with law stems from the fact that the vast majority of their income comes from undisclosed third parties (the TBTF Banks). TBTF Banks (BofA, Chase, Wells Fargo, Citi, etc.) do not want settlements or modifications or anything that will make the loan start performing. Subservicers like SPS and Ocwen are used as conduits to other

Lehman to Pay $2.4 Billion out of Bankrupt Estate

April 17, 2018

“Lehman’s own documents show it was aware of the widespread problems and deteriorating performance of the loans it had securitized,” with half the loans at one point containing material misrepresentations, the trustees said in a court filing. Editor’s Note: The difference is money — investors have it and borrower’s don’t. So while investors are successfully litigating fraud and deceit, the borrowers can’t afford to litigate the same issues. The idea that Lehman was somehow honest with borrowers and not with investors is preposterous. Lehman recently closed out a $2 billion dispute with Citigroup Inc. over derivatives, and similar litigation over derivatives with Credit

No Surprise: Ocwen & US Bank Hit by $3.8 Million Verdict in Chicago Federal Trial For Violations in Fake Foreclosure

April 16, 2018

“The jury, after deliberating for approximately 7 hours, determined that Ocwen breached its contract, violated RESPA for failing to adequately respond to Saccameno’s Qualified Written Request, violated the FDCPA and committed both unfair and deceptive acts in violation of the Illinois Consumer Fraud Act. Monette Saccameno was awarded $500,000.00 in compensatory damages, $70,000.00 in non-economic damages, $12,000.00 in economic damages and $3,000,000.00 in punitive damages. Nicholas Heath Wooten, Esq., Ross Michael Zambon, Esq., and Mohammed Omar Badwan, Esq. led the litigation team on behalf of Saccameno.” And I ask again: WHY DO OCWEN DOCUMENTS AND “BOARDING PROCESS” GET ANY LEGAL PRESUMPTION ON SCANT TESTIMONY AND EVIDENCE THAT WOULD NOT BE ACCEPTED AS

Fla 4th DCA Slams Door on "another Ditech loan" in foreclosure claims

April 13, 2018

The trial court erred (i.e., it was wrong) when it accepted unfounded hearsay testimony over Defendant’s timely objections. Kudos to Mark Stopa, Esq. Let us help you plan your answers, affirmative defenses, discovery requests and defense narrative: 954-451-1230 or 202-838-6345. Ask for a Consult. You will make things a lot easier on us and yourself if you fill out the registration form. It’s free without any obligation. No advertisements, no restrictions. Purchase now Neil Garfield’s Mastering Discovery and Evidence in Foreclosure Defense webinar including 3.5 hours of lecture, questions and answers, plus course materials that include PowerPoint Presentations. Presenters: Attorney

THE CURRENT BIAS: EVEN IF HOMEOWNER WINS, NO FEE RECOVERY

February 13, 2018

The continuing bias in favor of the banks’ fraudulent scheme of mortgages and foreclosures gives rise now to a nutty theory. The logic seems so obvious to the courts and yet it is erroneous. In a nutshell the theory goes, if a homeowner eventually proves that the parties attempting to foreclose have nothing to do with the loan, then the homeowner is barred from receiving fees under the contract. The fact that the foreclosing party represented and fought for status as a party with standing and was entirely dependent upon their ability to enforce contract (note and mortgage) means nothing

Deutsch Bank National Trust Company Was Crushed in Texas in 2015. Why isn't anyone listening?

January 22, 2018

When a judge looks carefully at the record, the bank loses. The use of Deutsch’s name in the style of the case still shows that Judges are considering the Plaintiff to be the named “Trustee” instead of the named (or named, which is frequently the case) Trust. In fact the Trustee has nothing to do with foreclosures. In this case the Judge wrote the following: “Judgment (for the homeowner for declaratory relief) was based on findings and conclusions that Deutsche Bank had failed to prove chain of title back to the original lender, now defunct. The sole proof on which

Christiana Trust/Wilmington Savings Crash and Burn on Standing and More

January 19, 2018

Florida 4th DCA Opinion: In this mortgage foreclosure case, the underlying mortgage was passed around like the flu, giving rise to a complexity of ownership that frustrated the appellee’s attempts to demonstrate standing at trial. To the answer brief, the appellee attached a chart of the ownership lineage of the mortgage and note, with different types of arrows pointing in all directions, a valiant effort which demonstrated that the transfer history here defies pictorial representation. Let us help you prepare your narrative (blue print) for litigation: 202-838-6345 Get a consult and TEAR (Title & Encumbrances Analysis and & Report) 202-838-6345.

Ocwen Admission Confounds Judges and Experts

January 17, 2018

This is a blatant attempt at deception — a deceit without which none of the Trusts would be recognized as legal entities much less the owner of loans. Ocwen is admitting that there is no single owner of the loan it is allegedly “servicing.” “There is no single owner of the account, but rather the account is one of many in a securitized investment trust.” For the uninitiated, this statement might suffice or at least be threatening enough as a challenge to their experience and intelligence to direct them away from the central false assertion that the trusts own any