Category: Neil Garfield Show

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

The Devil is in the Details — The Mortgage Cannot Be Enforced, Even If the Note Can Be Enforced

September 30, 2014

Cashmere v Department of Revenue 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.

Powers of Attorney — New Documents Magically Appear

September 29, 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. ———————————— BONY/Mellon is among those

Levitin and Yves Smith – TRUST=EMPTY PAPER BAG

September 26, 2014

Living Lies Narrative Corroborated by Increasing Number of Respected Economists It has taken over 7 years, but finally my description of the securitization process has taken hold. Levitin calls it “securitization fail.” Yves Smith agrees. Bottom line: there was no securitization, the trusts were merely empty sham nominees for the investment banks and the “assignments,” transfers, and endorsements of the fabricated paper from illegal closings were worthless, fraudulent and caused incomprehensible damage to everyone except the perpetrators of the crime. They call it “infinite rehypothecation” on Wall Street. That makes it seem infinitely complex. Call it what you want, it

When an assignment of a mortgage is invalid, does it require a foreclosure case to be dismissed?

September 23, 2014

A Foreclosure Judgment and Sale is a Forced Assignment Against the Interests of Investors and For the Interests of the Bank Intermediaries

September 15, 2014

Maine Moving toward the Truth About the Mortgages, MERS and Foreclosures

September 5, 2014

submitted by anonymous reader: Article by Elena A. Lovoy and D. Brian O’Dell Bradley Arant Boult Cummings LLP The Maine Supreme Court has been active in the last few months – issuing several decisions that will likely impact foreclosure actions in that state. The decisions covered a full range of foreclosure issues, from whether a lender can establish standing when it holds an assignment of the mortgage from Mortgage Electronic Registration Systems, Inc. (“MERS”) to the amount a borrower must pay to cure a default. If you originate and/or service RESIDENTIAL MORTGAGE LOANS in this state, you may want to review these recent cases. This

Securitization for Lawyers: How it was Written by Wall Street Banks

September 3, 2014

It Was the Banks That Falsified Loan Documents

July 9, 2014

I know it doesn’t make sense. Why would a lender falsify documents in order to make a loan? I had a case in which a major regional bank had their loan representatives falsify loan documents by having the borrower certify that there were houses on his two vacant lots. The bank swore up and down that they were never involved in securitization. When the client refused to make such a false statement — the bank did the loan anyway AS THOUGH THE NONEXISTENT HOMES WERE ON THE VACANT LOTS. Thus they loaned money out on a loan that was guaranteed

DUAL Tracking: The Game of "Chicken"

June 24, 2014

“In their quest for a windfall they have given the homeowners a path to justice — one where the notice of default, notice of sale, notice of acceleration notice of right to reinstate and redemption rights are all screwed up (i.e., wrong and invalid). With 80%+ of the losses already paid, the loans could have been modified down to nothing or nearly nothing compared with the original balance showed on the note, whether the note was fabricated or not. The problem is not whether the remedy exists. The problem is whether the lawyers and litigants have the guts to pursue

Why Is the PSA Relevant?

June 18, 2014

Many judges in foreclosure actions continue to rule that the securitization documents are irrelevant. This would be a correct ruling in the event that there were no securitization documents. Otherwise, the securitization documents are nothing but relevant. There are three scenarios in which the securitization documents are relevant: The party claiming to be a trustee of a trust is claiming to have the rights of collection and foreclosure. The party claiming to be the servicer for a trust is claiming to have the rights of collection and foreclosure. The party claiming to be the holder with rights to enforce is

Why Are Trusts Alleging Holder Status and Not Holder in Due Course?

June 17, 2014

THEY ARE ADMITTING THEY DIDN’T PAY FOR THE LOAN THIS CORROBORATES THE ALLEGATION THAT THE TRUST WAS UNFUNDED IF THE TRUST WAS UNFUNDED IT COULD NOT HAVE ORIGINATED OR ACQUIRED THE LOAN In situations where the alleged REMIC Trust is the party initiating foreclosure, you will find in most instances that they are alleging that they are the holder. The fact that they are not alleging that they are the holder in due course raises some interesting questions. First, it is an admission that they did not pay for the loan for value in good faith and without notice of

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

Hooker Case Flirts With Reality – 9th Circuit

May 14, 2014

SEE AMICUS BRIEF AT END OF ARTICLE It is interesting to watch the evolution of thought in the Courts. But it is also infuriating. They treat false claims of securitization as a novel issue; but in fact, there is nothing novel about Ponzi Schemes, and other types of fraud. Yet the Court continue to ponder the issue, probably wondering how they could possibly explain their prior decisions, the millions of foreclosures that have already occurred, and the 15 million people who were ejected from homes and lifestyles, jobs, and even lives (murder-suicides). This is not rocket science despite the layers

Fatal Flaws in the Origination of Loans and Assignments

April 22, 2014

The secured party, the identified creditor, the payee on the note, the mortgagee on the mortgage, the beneficiary under the deed of trust should have been the investor(s) — not the originator, not the aggregator, not the servicer, not any REMIC Trust, not any Trustee of a REMIC Trust, and not any Trustee substituted by a false beneficiary on a deed of Trust, not the master servicer and not even the broker dealer. And certainly not whoever is pretending to be a legal party in interest who, without injury to themselves or anyone they represent, could or should force the

Wells Fargo Manual Serves as Basis for Deeper Discovery

April 21, 2014

Every lawyer defending Foreclosures has heard the same thing from the bench just before a ruling in favor of the pretender lender — the homeowner did not meet its burden of proof and therefore judgment is entered in favor of the “bank.” The fact that the pretender lender is a bank makes the judge more comfortable with his assumption that the loan is real, the default is real, the financial injury to the pretender lender is presumed, and that the family should be kicked out of their home me because they stopped paying on “the loan.” More and more Judges

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

GUEST HOST TONITE JAMES MACKLIN

April 10, 2014

Click in tonite— tune in at The Neil Garfield Show Or call in at (347) 850-1260, 6pm Thursdays Guest Host Tonight is Jim Macklin, Managing Director, Secure Document Research located in Nevada. He has been a guest on the show before. A dynamic speaker and presenter, he has assisted me in presenting seminars for CLE credit for lawyers. His guest is Dan Edstrom, senior forensic analyst for the Livinglies Team. His Topic today will be how tax law determines ownership interests in REMIC assets. For you newcomers, REMIC means Real Estate Mortgage Investment Conduit — it is the trust (usually

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

Quite a Stew: Wells Fargo Pressure Cooker for Sales and Fabricated Documents

March 17, 2014

Wells Fargo Investigated by 4 Agencies for Manual on Fabricating Foreclosure Documents Wells Fargo is under investigation for a lot of things these days, just as we find in Bank of America and other major “institutions.” The bottom line is that they haven’t been acting very institutional and their culture is one that has led to fraud, identity theft and outright fabrication of accounts and documents. There can be little doubt about it. Documents that a real bank acting like a bank would have in its possession appear to be completely absent in most if not all loans that are

Is Donald Duck Your Lender?

March 14, 2014

I was asked a question a few days ago that runs to the heart of the problem for the banks in enforcing false claims for foreclosure and false claims of losses that should really allocated to the investors so that the investor would get the benefits of those loss mitigation payments. This is the guts of the complaints by insurers, investors, guarantors et al against the investment banks — that there was fraud, not breach of contract, because the investment bank never intended to follow the plan of securitization set forth in the prospectus and pooling and servicing agreement.

New Jersey Clears Docket: Dismisses 80,000+ cases

March 13, 2014

Click to Tune in or Download The Neil Garfield Show Or call in at (347) 850-1260, 6pm Thursdays GUEST TONIGHT: KENNETH HANKS, ESQ. TITLE EXPERT One might ask why a lender would delay the prosecution of their claim. The answer is that they wouldn’t delay if they thought they had a solid claim. I know. I have represented banks on loans, foreclosures, associations in foreclosures etc. And I have proposed that if the Courts were to order the alleged ‘holders” to show the actual money trail so we would all know what transactions actually took place, their dockets would be

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

New Mexico Supreme Court Wipes Out Bank of New York

February 18, 2014

bony-v-romero_nm-sup.ct.-reverses-with-instruction_2-14 There are a lot of things that could be analyzed in this case that was very recently decided (February 13, 2014). The main take away is that the New Mexico Supreme Court is demonstrating that the judicial system is turning a corner in approaching the credibility of the intermediaries who are pretending to be real parties in interest. I suggest that this case be studied carefully because their reasoning is extremely good and their wording is clear. Here are some of the salient quotes that I think it be used in motions and pleadings: We hold that the Bank