Category: Motions

Ken McLeod Files Complaints Against Notaries: 3 Licenses Revoked so far

February 20, 2014

So far he is three for three and he has no plans to stop filing complaints against notaries who signed false, fabricated affidavits. Ken McLeod (Arizona) is about the best investigator for economic crimes that I have ever come across. I won’t publish his number because the last time I did that he was swamped with calls and couldn’t do his work. If you can get to him, hire him. He has helped my law firm in a variety of ways sometimes tracking down witnesses within minutes and even telling us where they were standing at that moment. And he

What is the right return on investment for stolen capital?

February 19, 2014

Editor’s Comment: One of the interesting things about this case is where we all stood on application of law back in 1979 versus what goes on now. If you read the entire case — pointed out to me by “KC” in her comments to the blog, you see how the court approached this case in an entirely different state of mind. If the courts had maintained the state of mind they had in 1979, and applied the law the way they did in 1979, the dockets would be free from foreclosures. Why? Taking someone’s property by forfeiture is not like

The most important thing about cross examination in foreclosure cases

February 17, 2014

Whether it is on voir dire, which is a limited examination before the witness testifies to determine the legal competency of the witness, or on actual cross examination, the object is to bring out facts that are helpful in making your case or defending your position. When I teach cross examination, I refer to the triad — three things you must do in order to reach your goal. The three things are first to have a simple question with a goal in mind. Second to listen to the answer. Third, is the follow up, because you knew the probable answer

Banks Still Out Cheating Their Customers and Everyone Else

February 17, 2014

It is easy to think of the mortgage meltdown as a period of time in which the banks went wild. Unfortunately that period of time never ended. They are still doing it. The level of sophistication it takes to do the kinds of things that banks have been doing for the last 20 years is probably beyond the knowledge and experience of any of the regulators. In addition, it is beyond the knowledge and experience of most consumers, lawyers and judges; in fact as to non-regulators, bank behavior makes no sense. After having seen the results of what are euphemistically

MGIC Paid Off 2,400 Loans last month! Why Does the Borrower Still Need to Pay the Same Creditor?

February 14, 2014

Among the many insurance companies that paid off loans or assets based on loans, MGIC. Off 2400 loans a month of January alone, which appears to be virtually all residential mortgages. Press the reason that nobody is paying any attention to this is that normally the insurer acquires the claim through a legal process called subrogation. In the world of securitization the insurer waives subrogation. So we are left with a payment to a creditor. The creditor is identified as the lender for purposes of the insurance. There is no doubt in any venue that once a settlement is accepted

Casablanca Deja Vu: Shocked and Total Disbelief

February 10, 2014

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,

Rhode Island Supreme Court Steps Forward for Borrowers

February 7, 2014

Slowly but surely it seems that the court system are now taking notice of the fact that there is something intrinsically wrong with both the mortgages and the foreclosure process. In this case the Rhode Island Supreme Court specifically found the grounds that could establish that the mortgage was not validly assigned. This case was about whether or not the homeowners case should have been dismissed. The Supreme Court decided that the homeowners case should not have been dismissed. But in this case the court affirmatively stated that defects in the assignment process would void the assignment and thus defeat

JP Morgan Corners Gold Market — where did they get the money?

February 3, 2014

Zerohedge.com notes that JP Morgan has cornered the market in gold derivatives. They ask how the CFTC, who supposedly regulates the commodities markets could have let this happen. I ask some deeper questions. If JPM has cornered the market on those derivatives, is this a reflection that they, perhaps in combination with others, have cornered the market on actual gold reserves? Zerohedge.com leaves this question open. I suggest that this position in derivatives (private contracts that circumvent the actual futures market) is merely a reflection of a much larger position — the actual ownership or right to own gold reserves

Unconscionable and Negligent Conduct in Loan Modification Practices

January 31, 2014

JOIN US EVERY THURSDAY AT 6PM Eastern time on The Neil Garfield Show. We will discuss the Stenberger decision and other important developments affecting consumers, borrowers and banks. We had 561 listeners so far who were on the air with us or who downloaded the show. Thank you — that is a good start for our first show. And thank you Patrick Giunta, Esq. (Broward County Attorney) as our first guest. For more information call 954-495-9867. In the case of Wane v. Loan Corp. the 11th Circuit struck down the borrower’s attempt to rescind. The reasoning in that case had

The Rush to Foreclosure: Wells Fargo Loses the Argument on Trial Modifications

January 29, 2014

As Danielle Kelley, Esq. (Tallahassee) has repeatedly predicted, the trial modification practices of the big banks are getting them into hot water. Scenarios vary. But one typical scenario is that the trial modification is “approved” (which under current law means that it has been through underwriting) and the borrower makes the trail payments. Then the bank says the “investor” (with whom they have most likely NOT been in contact) has denied the modification. After receiving the trial payments and assuring the borrowers that they were safe in their home, the bank then forecloses. Many homeowners, unaware that they in fact

THE NEIL GARFIELD SHOW STARTS THIS THURSDAY AND EVERY THURSDAY AT 6PM

January 27, 2014

Thanks to the folks at Blog Talk Radio, we are finally going back on the air on a weekly basis every Thursday at 6PM Eastern Time, 3PM Pacific Time, and if there is no operator error (that would be me), the shows will be saved as Podcasts and you can listen to them anytime you want. IT’S FREE! (Except for the sponsors). Our intended audience includes, investors who were duped out of their money to buy bogus mortgage bonds, investors or buyers of resales or foreclosures who think they have clear title but don’t, and homeowners as investors who stand

Mortgage Lenders Network and Wells Fargo Battled over Servicer Advances

January 22, 2014

It is this undisclosed yield spread premium that produces the pool from which I believe the servicer advances are actually being paid. Intense investigation and discovery will probably reveal the actual agreements that show exactly that. In the meanwhile I encourage attorneys to look carefully at the issue of “servicer advances” as a means to defeat the foreclosure in its entirety. As usual, the best decisions come from cases where the parties involved in “securitization” are fighting with each other. When a borrower brings up the same issues, the court is inclined to disregard the borrower’s defense as merely an

What About All Those Cases Where Foreclosure Was Dismissed?

January 21, 2014

As I predicted in 2009, the number of cases where foreclosure had been simply dismissed without further action has increased exponentially. The homeowner is normally afraid to take any proactive stance for fear of awakening the giant who will then respond by filing another foreclosure. Some of these cases are as much as 10 years old which goes beyond the statute of limitations in virtually all jurisdictions. As a caveat, let me add that there are states in which the statute of limitations is “ongoing” which means that the entire action is not barred by the statute of limitations; instead,

Bankruptcy Lawyers: it starts in the schedules — admission of secured debt is deadly

January 9, 2014

I was traveling and re listening to an older lecture given by 2 Bankruptcy judges generally held in high esteem. The largest point was that naming a party as the creditor and checking the right boxes showing they are secured basically ends the discussion on the motion to lift stay and restricts your options to either filing an adversary lawsuit attached to the administrative bankruptcy petition or filing an action in state court which is where you will be if you don’t follow this same simple direction. If you file schedules attached to your petition for bankruptcy relief, as you

The Case Against the Escrow Agent: Did Escrow Close on Mortgage Loan

January 7, 2014

The possibility of a lawsuit against the escrow agent in the closing of the mortgage loan that was subject to securitization or claims of securitization raises several essential issues. In most cases the escrow agent is also the title agent. The title agent has it issued a title commitment and a title policy presumably based upon their research of the transaction and preceding transactions that were recorded in the public records of the county in which the property is located. The exchange shown below raises the question of whether escrow had in fact ever been closed. I would raise one

Federal Bankruptcy Judge Explains Wells Fargo Servicer Advances

January 6, 2014

In order to obtain forensic reports including servicer advances please go to www.livingliesstore.com or call 520-405-1688. for litigation support to attorneys call 850-765-1236. ——————————— Mortgage Lenders Network v Wells Fargo, Chapter 11, Case 07-10146(PJW), Adv. Proc., Case 07-51683(PJW) In an adversary proceeding in which evidence was presented, Judge Walsh dissected the confusing complex agreements involving the real set of co-obligors’ liability to the Creditor REMIC trust. Many thanks to our legal intern, Sara Mangan, currently a law student at FSU. I had no idea the case existed. It apparently got buried because of all the ancillary issues presented. If you

ATTENTION LAWYERS: ARE SERVICER ADVANCES ARGUABLY A NOVATION

January 2, 2014

Where “servicer” advances to the trust beneficiaries are present, it explains the rush to foreclosure completely. It is not until the foreclosure is complete that the payor of the “servicer” advances can stop paying. Thus the obfuscation in the discovery process by servicers in foreclosure litigation is also completely explained. Further this would open the eyes of Judges to the fact that there may be other co-obligors that were involved (insurers, credit default swap counterparties etc.). Thus while the creditor is completely satisfied and has experienced no default, the servicer is claiming a default in order to protect the interest

Dan Edstrom Cites Failure to Actually Close Escrow

January 1, 2014

Getting the closing instructions and the closing documents, including the wire transfer receipts and wire transfer instructions, one is able to piece tog ether that escrow was never properly closed. This could mean that escrow is still open — leaving open the option of a three day rescission. Dan points out in response to me post that there is considerable support to attacking the escrow to prove that the originator is not the lender. The issue that I failed to explain in my post is that the note was never delivered to the originator. This, combined with the failure of

Before You Sign Anything, File Anything, Consider the Statute of Limitations

December 31, 2013

With tens of thousands of cases running many years before foreclosure is started and with many cases ripe for dismissal for lack of prosecution, the Banks are in a full court press attempting to get modifications or even going to trial on cases they know are problematic at best. I am receiving scores of reports of cases dismissed on the grounds they are barred that the statute of limitations has run. If grounds exist for dismissal (check with a lawyer who really knows) the case cannot be refiled if the statute of limitations has run. If the case has not

US Bank, BofA, LaSalle Bank and Other Trustees Slammed the Door on Their Own Toes

December 30, 2013

NOTE: THE FOLLOWING IS A LEGAL ANALYSIS THAT MAY OR MAY NOT APPLY TO CASES ON WHICH YOU ARE WORKING. IT IS REALLY MEANT FOR ATTORNEYS WHO ARE REPRESENTING PARTIES IN FORECLOSURE LITIGATION. No lay person should assume that anything in this article is true or applies to their case. Nobody should use this information without careful consultation with a knowledgeable attorney licensed in the jurisdiction in which the subject property is located. This may or may not have applicability to other securitized debt including student loans, auto loans etc. Each case rests on its own merits. Do not assume

The Devil Is In the Details: Summary of Issues

December 27, 2013

Editor’s note: in preparing a complex motion for the court in several related cases I ended up writing the following which I would like to share with my readers. As you can see, the issues that were once thought to be simple and susceptible to rocket docket determination are in fact complex civil cases involving issues that are anything but simple. This is a guide and general information. DO NOT USE THIS IF YOU ARE NOT A LICENSED ATTORNEY. THESE ISSUES ARE BOTH PROCEDURALLY AND SUBSTANTIVELY ABOVE THE AVERAGE KNOWLEDGE OF A LAYMAN. CONSULT WITH AN ATTORNEY LICENSED IN THE

BeforeYou Open Your Mouth Or Write Anything Down, Know What You Are Talking About

December 26, 2013

EDITOR’S NOTE: By popular demand I am writing a new workbook that is up to date on the theories and practices of real estate loans, documentation, securitizations and effective enforcement and foreclosure of the collateral (real property — i.e., the house). The book will be finished around the end of January. If you want to purchase an advance subscription to an advance copy we can give you a discount off the price of $599. You will receive the final edit drafts of each section as completed. And your comments might be included in the final text with attribution. This is

Federal Judge Slams Wells Fargo for Violation of Debt Collector's Act in Florida

December 25, 2013

EDITOR’S NOTE: this is why I am encouraging attorneys to take cases involving foreclosure, even if the foreclosure itself is problematic. The FDCPA federal counterpart essentially states the same rules. These cases allow for damages and recovery of attorney fees that might aid in the cost of protracted litigation by a pretender lender. Most of my clients are receiving these contacts even after they have expressly told the caller that they are represented by counsel and even that there is a lawsuit pending. I would add that there is clearly a question as to whether the offer of modification

Why Third Party Payments Are So Important to Defending Foreclosure Cases

December 20, 2013

I keep getting inundated with creative arguments about the documentation, which is exactly the rabbit hole that the Banks want you to go down. It is a trap. Technical attacks on documentation are not going to win the day because in the end, it is public policy for negotiable instruments to be safe bets in the marketplace. You are not going to get excused from payment without payment or bankruptcy orders. But payment includes all payments received by the creditor and that is not just servicer advances. It includes insurance and other third party co-obligors who paid the broker dealers.