Category: Motions

This will probably get me in plenty of hot water with lawyers. Homeowners should be winning foreclosures most of the time. The reason they don't? — Ineffective Counsel.

April 24, 2020

Sign Petition to Change the rules to Protect Homeowners from Fraudclosure. The problem is not the judges. The problem is the lawyers who walk into court believing that the loan is real, claimant is real, the claim is real and that they are only looking for technical ways to get their client out of a valid deal. The problem is exacerbated by magical thinking — that by pointing out bad acts by the foreclosure mill or servicer they will automatically cancel the mortgage, get quiet title and somehow the “debt” will disappear. Is it any wonder that judges are responding

Why Homeowners Lose Their Homes to Crooked Banks

April 21, 2020

The first and foremost thing about this is that where any loan is subject to claims of securitization, that claim is false. So no investor ever bought any loan, debt, note or mortgage. Not ever. All documents claiming to memorialize such transactions are false. So the designated claimant has no claim. To win these cases you must be realistic about what you are up against. The justice system doesn’t care about the merits of any claim, defense or denial unless it is properly and timely presented in accordance with the established rules of procedure and laws of evidence. It is

Magic Bullet? Maybe this: the foreclosure "team" are all witnesses, not claimants

April 15, 2020

The fact that the foreclosure players know — or even witnessed — the fact that you refused to make any further payments makes them a witness, not a claimant. * The investment banks say they are not liable as lenders for noncompliance with lending laws. OK. A good lawyer can make a powerful argument for estoppel — the investment banks cannot take one position — that it wasn’t a loan in terms of regulation of lenders — and then that it is a loan so they can foreclose without a creditor. * Two wrongs don’t make something right. The fact

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

Not So Fast! Statute of Limitations Bars Claims for Enforcement of Statutory Duties But Does Not Bar Other Action For Damages Based on That Duty.

October 30, 2019

Claims under state statutes or Federal statutes have different periods of limitation under which you can file suit. BUT — if the statutory duty that was breached is part of another claim that is not barred by the statute of limitations then you can survive a motion to dismiss or even an affirmative defense of statute of limitations. Sound crazy? Actually it isn’t. I have already discussed claims for damages that are barred by the statute of limitations but he same statute does not bar the same pleading as an affirmative defense because that is NOT, for procedural purposes, a

Update on MERS

October 16, 2019

Just assume that everything is a fiction and none of it is real. Then set out to create the inference against the use of key legal presumptions necessary for the foreclosure mill to establish a prima facie case. Those presumptions lead to conclusions that are contrary to facts in the real world. The answer is always the same. MERS is a data storage company that has no ownership of the data, or any documents that contain references to data, events, payments, assets or liabilities. The MERS database in intentionally unsecured — anyone can get access with a login and password

Rescission and Burden of Proof

September 25, 2019

There are winners and losers in every courtroom. When dealing with TILA Rescission under 15 USC §1635 you must go the extra mile in not merely showing the court why you should win, but also revealing that the opposition is not actually losing anything. The same logic applies to every foreclosure where securitization is either obvious or lurking in the background. The bottom line is that no payment of value has ever been paid or retained as a financial interest in the debt by the named claimant nor anyone in privity with the named claimant. Once you can show the

Don't Admit Anything About the Servicers Either — It's All a Lie

September 10, 2019

Want to know why this site is called LivingLies? Read on Homeowners often challenged the authority of the named claimant while skipping over the actual party who is supporting the claim — the alleged servicer. You might also want to challenge or at least question their authority to be a servicer. The fact that someone appointed them to be a servicer does not make them a servicer. Calling themselves a “servicer” does not constitute authority to administer or even meddle in your loan account. As you will see below the entire purpose of subservicers is to create the illusion of a “Business records” exception

Payment History as Exception to Hearsay Rule

June 26, 2019

A recent decision from the 1st Circuit of the U.S. Court of Appeals applying FRE 803(6) states the current law — whether you like it or not. Pretending these decisions don’t exist or trying to avoid them is both pointless and highly likely to undermine your credibility in any other narrative or argument. Note that SCOTUS Justice Souter not only sat in on this review but wrote the opinion. Simply stated the transaction history will be admitted into evidence every time — UNLESS the borrower disputes their content and demands a hearing on truthfulness of the foundation testimony in which

Right in Front of Our Eyes: Black Knight and U.S. Bank

June 5, 2019

Anyone who knows about foreclosure litigation and securitization of residential debt knows that the only way the banks could succeed is if they had a central repository and central command center from which all documents were fabricated and all instructions were issued. For nearly all loans the central command was Lender Processing Systems, aided by DOCX. While DOCX is technically defunct and Loraine Brown went to jail taking one for the team, the functions of LPS remained the same. LPS changed its name to Black Knight and in a PR coup transformed itself into the publisher of what is largely

9th Circuit Inches Toward Decision of "America's Wholesale Lender"

April 19, 2019

The issue is jurisdiction. Lawyers filed papers for AWL but AWL was dissolved as a corporation. The lawyers countered with the allegation, on appeal, that AWL was a fictitious name for Countrywide without specifying the location of CW. Hence no diversity of jurisdiction could be supported by the allegations in the notice for removal. The claim of diversity was not supported by either facts or allegations establishing diversity. This is the common practice of foreclosure mills and their defenders. They simply make a claim and leave it as “implied” that the grounds exist. Attack that, and you can win. So

Stop Feeling Guilty — Be A Warrior

April 9, 2019

Shame is the reason why most borrowers don’t contest foreclosures. That shame turns to intense anger when they realize that they were used, screwed, abused and now they are targets in a continuing blitz to embezzle much needed money from their lives and from the financial system generally. The genius behind companies like Citi is… Deception by Branding. “Citi” is not a company, it’s a brand of a conglomerate of companies. Even its subsidiary “Citibank N.A.” is deceptive. First let’s dispel the myth that subsidiaries are equal to their parents. Not true, not even when they are wholly-owned subsidiaries. They

Tonight! How to use discovery in revealing fraudclosures!

April 4, 2019

Thursdays LIVE! Click in to the Neil Garfield Show Tonight’s Show Hosted by Neil F Garfield Call in at (347) 850-1260, 6pm Eastern Thursdays Tonight’s Agenda: Interrogatories Request to Produce Request for Admission Motions to Compel Motions for Sanctions Motions in Limine The devil is in the details. The details in litigation lie basically in discovery — asking and responding. Very few pro se litigants know how to construct good Interrogatories, Requests to Produce, or Requests for Admission. They know even less about how to use the responses, if they get any. And they know still less about how to use inconsistencies

Why Regulation is Failing the Mortgage Market

March 26, 2019

A new report from the Federal Reserve Board identifies the central issues confronting regulators — issues that regulators have avoided assiduously. The bottom line is that the FED knows that it lacks accurate information and knows that it is not confirming information given to it by banks who are now all in the background of lending. The real information should be coming from small thinly capitalized private entities that serve as sham conduits for loans. Neither the FED nor any other regulator gets any information on those loans which now account for more than 50% of all loans. This presents

MERS Is NOTHING — The Correct Translation of "MIN"

January 18, 2019

Without a contract in writing executed with the formalities required for transfer of interests in real property, it is highly probable that any instrument executed on behalf of MERS means nothing without the necessity of drilling into the authority or knowledge of the signor. In fact, it might just be that the execution of an assignment might be the utterance of a false instrument for purposes of recording, which in and of itself constitutes illegal activity. ============================== Let us help you plan for trial and draft your foreclosure defense strategy, discovery requests and defense narrative: 202-838-6345. Ask for a Consult or check

Tonight! Steamrolling Using Judicial Notice 6PM EST

January 17, 2019

Thursdays LIVE! Click in to the Neil Garfield Show Tonight’s Show Hosted by Charles Marshall, Esq. Call in at (347) 850-1260, 6pm Eastern Thursdays One of the things that irritates most homeowners and lawyers for foreclosure defense is how “evidence” is admitted that “proves” a fact that doesn’t exist. One of the tools for doing that is Judicial Notice or as we call it, “JN.” JN is used for documents that are inherently credible — not some document created by one of the litigants and uploaded to a quasi government site without any validation by any government entity. They are inherently

How to Beat the Shell Game

November 19, 2018

The bottom line is that the foreclosures are a sham. The proceeds of the foreclosure never go into a REMIC Trust because there is neither a REMIC election nor a Trust, much less any entity that outright owns the debt, note or mortgage. In order to win, you must know that the securitization players use sham conduits and fictitious names at will, leaving an ever widening gap between the real and the unreal. It’s the gap that enables so many homeowners to win. Without getting too metaphysical about it, I am reminded by what Ghandi said when he won India’s

Fundamentals of Foreclosure

November 6, 2018

Probably the biggest mistake and most common mistake I ever made as a lawyer was by assuming certain things at the very beginning of a case. No case is more dangerous ground for assumptions than foreclosures. Let us help you plan for trial and draft your foreclosure defense strategy, discovery requests and defense narrative: 202-838-6345. Ask for a Consult. I provide advice and consultation to many people and lawyers so they can spot the key required elements of a scam — in and out of court. If you have a deal you want skimmed for red flags order the Consult and fill out

What is the effect of TILA Rescission on My title? Can I sue for damages?

August 6, 2018

I have been getting the same questions from multiple attorneys and homeowners. One of them is preparing a brief to the U.S. Supreme Court on rescission, but is wondering, as things stand whether she has any right to sue for damages. When our team prepares a complaint or other pleading for a lawyer or homeowner we concentrate on the elements of what needs to be present and the logic of what we are presenting. It must be very compelling or the judge will regard it as just another attempt to get out of justly due debt. Let us help you

NY Monroe Case: Default entered against homeowner — CASE DISMISSED on Standing — US Bank Never refiled.

July 12, 2018

multiple choice robo-pleading NO PLEADING: HOMEOWNER WON ANYWAY I have held off on discussing this case until some time passed. As far as I now know US Bank, like several cases I won, has not refiled for foreclosure. There is a good reason for that. US Bank is not the Plaintiff. The Plaintiff is named as a REMIC Trust, for which the attorneys claim that US Bank is the Trustee. As such the Plaintiff does not own nor have any interest in the loan either as owner or servicer. Hence the named trustee (U.S. Bank) is named but it has nothing

GARFIELD PREMISES

July 11, 2018

Most people really don’t completely understand our premise when we investigate, research, examine and analyze a case or case documents. We have several premises with which we start and check to to see if they apply. While the answer is short the work behind it is long and complicated. Let us help you plan your foreclosure defense strategy, discovery requests and defense narrative: 844.478.6774 Ask for a Consult. 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 and Expert Neil

Why Everyone (except SCOTUS) is Wrong About TILA Rescission

June 26, 2018

All contrary arguments are erroneous since they would insert a contingency where the statute contains no room for any contingency. The language of the statute bars any such contingency when it says that the TILA Rescission is effective upon delivery, by operation of law. If anyone wants the statute to say or mean anything different they must get their remedy from the legislature, not the courts, who have no authority whatsoever to interpret the statute otherwise. The status of any case involving foreclosure is that it does not exist. Hence the court is left ONLY with the power to perform

Paralegal Training — Entity Research

May 13, 2018

Producing a USEFUL report that can identify gaps, inconsistencies and deficiencies in the primary documents used for foreclosure is a complex task. It must be thorough and it must be correct and free from “opinions” that the writer is not qualified to present. Opinions ruin credibility under they come from a qualified expert with credentials, education, training and experience in cases other than your own. This article is devoted to one tiny step in the process of forensic research and investigation. A properly trained paralegal is far more likely to get it right than a pro se litigant and even

JUDICIAL NOTICE IS BEING USED AS A SUBSTITUTE FOR PROOF OF FACTS THAT ARE CONTESTED

April 24, 2018

The entire playbook of the banks and servicers consists of one underlying theme: to obtain foreclosures based upon presumptions that are contrary to the facts. GO TO LENDINGLIES to order forms and services 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