Category: Motions

The Art of Objections at Trial: A Success Story

August 22, 2014

For more information on foreclosure offense, expert witness consultations and foreclosure defense please call 954-495-9867 or 520-405-1688. We offer litigation support in all 50 states to attorneys. We refer new clients without a referral fee or co-counsel fee unless we are retained for litigation support. Bankruptcy lawyers take note: Don’t be too quick admit the loan exists nor that a default occurred and especially don’t admit the loan is secured. FREE INFORMATION, ARTICLES AND FORMS CAN BE FOUND ON LEFT SIDE OF THE BLOG. Consultations available by appointment in person, by Skype and by phone. ———————————— This story is good.

Loan Without Money

August 18, 2014

The Logic of Wall Street "Securitization:" The transaction that never existed

August 14, 2014

For more information on foreclosure offense and defense please call 954-495-9867 or 520-405-1688. We offer litigation support in all 50 states to attorneys. We refer new clients without a referral fee or co-counsel fee unless we are retained for litigation support. Bankruptcy lawyers take note: Don’t be too quick admit the loan exists nor that a default occurred and especially don’t admit the loan is secured. FREE INFORMATION, ARTICLES AND FORMS CAN BE FOUND ON LEFT SIDE OF THE BLOG. Consultations available by appointment in person, by Skype and by phone. The logic of Wall Street schemes is simple: Create

It Makes No Sense

August 4, 2014

For further information and consultations please call 520-405-1688 or 954-495-9867. We offer litigation support to attorneys throughout the country. Consultations outside of Florida require an attorney to be on the line with you. ——— We received so many calls from my post on Friday asking me to write more on the Burden of Proof that I decided to write a supplement. See The Burden of Proof Must be Changed: BofA Slammed Again IT MAKES NO SENSE “Your Honor this is a simple foreclosure on an ordinary mortgage.” Those words, uttered by most foreclosure attorneys are very misleading. Because the attorneys

Why You Need to Understand the Volcker Rule

July 25, 2014

In order to understand how the banks made money creating a void and then filling it with what I call a tier 2 yield spread premium, trading withe investors money, and avoiding the trust entirely, you should read the articles relating to the Volcker rule, where “proprietary trading” is frequently put in quotation marks. The banks were essentially treating all investor money as bank money except when it came to allocating losses. When it came to creating fictional profits, those were allocated to the banks — to the obvious detriment of investors and borrowers alike. That is because many of

Chase Slammed By CA Appellate Panel: Bank committed fraud in order to show ownership

July 16, 2014

Housing Wire, Ben Lane (see link to article below): “Bank committed fraud in order to show ownership.” We are entering the 6th inning of the game started by Wall Street when it created the smoke and mirrors game based upon false claims of successors and securitization. As lawyers actually do the work investigating and researching, they are getting results that come closer and closer to the reality that the whole thing was a sham. For each Appellate decision, like this one, there are hundreds of rulings from Trial courts in which Orders were entered finding for the borrower and against

Tampa Trial Judge Rules for Borrower Where Correct Objections Were Made

July 10, 2014

Patrick Giunta, Esq. brought this case to my attention. Here is a case between the famed Florida Default Law Group, who reached distinction amidst accusations of fabricated documents, and an ordinary borrower represented by a St. Peterburg trial lawyer, John R. Cappa, who apparently knows the timing and content of the right objections. The result was involuntary dismissal against the foreclosing party. The basis of the ruling was that the default had never been proven, the Plaintiff never offered proof of “rights to enforce” and tangentially the business records were not qualified as an exception to the hearsay rule. The

Quiet Title and Statute of Limitations

July 7, 2014

In the search for a magic bullet, many pro se litigants and even attorneys have ended up perplexed by laws and rules regarding an action to Quiet Title (frequently misspelled by pro se litigants as “Quite Title”). The purpose of this article is to add some context to the discussion and some reasons for my conclusion — that as more decisions emerge the action for Quiet Title will fade unless the mortgage of record is first nullified or canceled. For context, let’s remember that the purpose of recording documents in the Public Records is to give certainty and notice to

Moving to Strike The "Witness" and Their "Business Records"

July 1, 2014

The general practice of the servicers and trustees is to disclose a list of as many as 35 possible witnesses so that the Defendant homeowner cannot possibly perform due diligence investigation, deposition etc. The Judges got wise to this and agreed that disclosing 35 witnesses, 34 of whom you do not intend to call, is the same as no disclosure at all. So now the banks are filing a disclosure of one witness a couple of days before trial. In my opinion the attorney should move to strike the disclosure both as late (ordinarily the trial order requires such disclosure

Another Short Treatise on Securitization

June 9, 2014

Patrick Giunta brought this article to my attention. He practices in South Florida and I co-counsel cases with him. Although there are some errors in facts and I have some differences of opinion with the writer, I think the article is a MUST-READ for anyone effected by “securitization” — especially foreclosure defense attorneys. If nothing else there is corroboration of what I have said all along. The entire thing is the emperor’s new clothes — see article I wrote about 7 years ago. If you don’t understand that, then you don’t know how to cross examine the “corporate representative” at

Death and Misdemeanors

May 20, 2014

Ghost of notary comes back from death and notarizes thousands of documents. Read all about it — Dead Notary Signs After Death Besides the obvious fact that the notarization is defective there is a deeper question of why anyone would need to falsify documents if the loans were real. One can imagine a case or two where someone crosses the line between legal and illegal. But why would there be hundreds of thousands, perhaps millions of cases in which documents and signatures were falsified? Remember we are talking banks here, not a sandwich shop. These people invented documentation to protect

Fannie and Freddie Slammed by Massachusetts AG

May 16, 2014

Martha Coakley gets it. Read her letter. Being a politician she does not say that the abstract fear of strategic defaults on all loans across the board is absurd. Well, actually she does say it. Principal reductions and ending patently illegal policies preventing homeowners from buying back their own property at auction are at the center of the solution to the foreclosure mess along with one more thing: things will change when we get the answer to the question IF THESE POLICIES HURT LENDERS, INVESTORS AND BORROWERS, WHY WOULD ANYONE LISTEN TO A THIRD PARTY WHO BENEFITS? fhfa-letter-051414 As the

Use of Factual Findings of Servicer Advances

April 29, 2014

It is important that the content of the report dealing withservicer advances be argued strenuously.Servicer advances have been received by the creditor, thus reducing the amount the creditor is expecting to be paid. Hence there should be reduction in the amount that is due from the borrower — to the extent thatactual payments have been received by that creditor on this account whether the borrower was the source of those payments or not.The servicer has agreed to make the payments to the creditor regardless of whether the Borrower paid or not and has continued to make payments apparently right up

The Step Transaction and Single Transaction Doctrine

April 11, 2014

Jim Macklin and Dan Edstrom did a great job of packing a great deal of information into 28 minutes of talk time on the Neil Garfield Show last night. I am taking a couple of weeks off the show to do some common follow-up procedures to my heart surgery two years ago. Jim Macklin stepped in and did a great job of getting information into the hands of lawyers and other listeners in what turned out to be a mini-seminar on how to apply Federal tax law to the issue of ownership of the the loan. It should be heard

Modifications: Interest reduction, Principal reduction, Payment reduction, and Term increase

April 8, 2014

In the financial world we don’t measure just the amount of principal. For example if I increased your mortgage principal by $100,000 and gave you 100 years to pay without interest it would be nearly equivalent to zero principal too (especially factoring in inflation). A reduction in the interest rate has an effect on the overall amount of money due from the borrower if (and this is an important if) the borrower is given 40 years to pay AND they intend to live in the house for that period of time. To the borrower the reduction in interest rate and

Servicer Advances: More Smoke and Mirrors

April 4, 2014

Several people are issuing statements about servicer advances, now that they are known. They fall into the category of payments made to the creditor-investors, which means that the creditor on the original loan, or its successor is getting paid regardless of whether the borrower has paid or not. The Steinberger decision in Arizona and other decisions around the country clearly state that if the creditor has been paid, the amount of the payment must be deducted from the amount allegedly owed by the “borrower” (even if the the borrower doesn’t know the identity of the creditor). The significance of servicer

Florida Standard Jury Instructions as a Guide for Bench Trials

April 1, 2014

Danielle Kelley, esq., my law partner frequently says she likes to start with the jury instructions because that is where everything is boiled down to their simplest components. I think it is wise to make references to the standard jury instructions (plus the fact that they were introduced as an amendment to the Florida rules of Civil Procedure — thus overriding anything the Judge thought he knew). For example, on evidence for use in motions and at trial — SC12-1931 Opinion 301.5 EVIDENCE ADMITTED FOR A LIMITED PURPOSE The (describe item of evidence) has now been received into evidence. It

Who is the "lender" or "creditor"?

March 27, 2014

Click to tune TONITE in on The Neil Garfield Show Or call in at (347) 850-1260, 6pm Thursdays LET’S PROCEED STEP BY STEP. – Based upon actual documentation filed with the SEC 1. let’s assume that the mortgage is defective because it was not perfected. The note described a party who was not the creditor and gave no notice as to the actual identity of the creditor. 2. Let’s assume also that the note was paid in full from a variety of sources, which you know about ad nauseum. 3. Let’s further assume that the transfer documents are either non-existent

The Confusion Over Consideration: If they didn't pay for it, they have nothing against the property

March 21, 2014

There have been multiple questions directed at me over the issue of consideration arising from presumptions made about a note and mortgage that appear to be facially valid. Those presumptions are rebuttable and indeed in many cases would be rebutted by the actual facts. That is why asserting the right defenses is so important to set the foundation for discovery. The cases thrown at me usually relate to adequacy of consideration. Some relate wrongly to Article 3 as to enforcement of the note. I agree that enforcement of the note is easier than enforcement of the mortgage. But that is

BONY Objections to Discovery Rejected

March 20, 2014

Click to Tune in or Download The Neil Garfield Show Or call in at (347) 850-1260, 6pm Thursdays It has been my contention all along that these cases ought to end in the discovery process with some sort of settlement — money damages, modification, short-sale, hardest hit fund programs etc. But the only way the homeowner can get honest terms is if they present a credible threat to the party seeking foreclosure. That threat is obvious when the Judge issues an order compelling discovery to proceed and rejecting arguments for protective orders, (over-burdensome, relevance etc.). It is a rare bird

Hearsay on Hearsay: Bank Professional Witnesses Using Business Records Exception as Shield from Truth

March 19, 2014

Wells Fargo Manual “Blueprint for Fraud” Hat tip to my law partner, Danielle Kelley, Esq., for sending me the manual and the reports on it. Anyone desirous of a consultation on the application of what is on this blog, must either be a lawyer or have a lawyer who is licensed in the jurisdiction in which the property is located. For scheduling call 954-495-9867 (South Florida Office), 850-765-1236 (North Florida Office), and 520-405-1688 (Western United States). International callers: The same rules apply. Well that didn’t take long. Like the revelations concerning Urban Lending Solutions and Bank of America, it is

Discovery and Due Process in California

March 10, 2014

I produced a memorandum as an expert witness and consultant in litigation support for a lawyer in California that after re-reading it, I think would be helpful in all foreclosure litigation. I have excerpted paragraphs from the memo and I present here for your use. Plaintiff/Appellant has pre-empted the opposing parties with a lawsuit that seeks to determine with finality the status and ownership of her loan. She has received, in and out of court, conflicting answers to her questions. The Defendant/Appellees continue to stonewall her attempt to get simple answers to simple questions — to whom does she owe

Glaski Court refuses to "depublish" decision, two judges recuse themselves.

February 27, 2014

Corroborating what I have been saying for years on this blog, the Supreme Court of the state of California is reasserting its position that if entity ABC wants to collect on a debt in California, then that particular entity must own the debt. This is basic common sense and simply follows article 9 of the Uniform Commercial Code. If a court were to adopt the position of the banks, then a new industry would be born, to wit: spying on people to determine whether or not they are behind on any payment to anyone and then beating the real creditor

George W. Mantor Runs for Public Office on "No More Dirty Deeds"

February 25, 2014

Mantor for Assessor/Recorder/Clerk of San Diego County Editor’s note: I don’t actually know Mantor so I cannot endorse him personally — but I DO endorse the idea of people running for office on actual issues instead of buzz words and media bullets. Mantor is aiming straight for his issue by running for the Recorder’s Position. I think his aim is right and he seems to get the nub of some very important issues in the piece I received from him. I’d be interested in feedback on this campaign and if it is favorable, I might give a little juice to